COUNCIL ACTION FORM Meeting Date: September 13, 2012 Staff Contact: John Sullivan, Public Works Director

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1 COUNCIL ACTION FORM Meeting Date: September 13, 2012 Staff Contact: John Sullivan, Public Works Director Agenda Item: Consider vacation of a Landscape Easement granted to the City of Westwood for the construction and maintenance of landscape enhancements located on the former Westwood Apple Market Property. Consider a request to WalMart Corporation for an Access Easement for maintenance of the Decorative Fountain at W. 47 th Street and Mission Road. Background / Description of Item: The City of Westwood obtained a Landscape Easement from the owners of the various properties along W. 47 th Street in November of Due to the pending sale of the Apple Market Grocery Store property, the new owners, WalMart Corporation, have requested that the City vacate one of the landscape easements obtained in 1994 by the City of Westwood in order to expand the width of the driveway adjacent to this planting easement. You will find in your packet the instrument to vacate the landscape easement as well as the exhibits which legally describe and depict the area in question. In addition, you will find in your packets a request from the City of Westwood to the WalMart Corporation the granting of an access easement so that the City can legally enter the WalMart property for the purpose of maintenance to the fountain, stone walls and landscaping located at the corner of West 47 th Street and Mission Road. The document and exhibits demonstrate the area in question. Staff Recommendation: Staff recommends that the Governing Body authorize the Mayor to sign the Landscape Easement Vacation Document as presented. Staff would also recommend that the Governing Body authorize the Mayor to sign the request to the WalMart Corporation for an Access Easement as described in the documents as presented.

2 RELEASE AND VACATION OF EASEMENT This RELEASE AND VACATION OF EASEMENT ("Release and Vacation") is executed as of the day of September, 2012, by the City of Westwood, Kansas, a municipal corporation ("Grantee"). W I T N E S S E T H WHEREAS, pursuant to that certain Easement Agreement recorded in Book 4470 at Page 922 on November 16, 1994 (the "Agreement"), Grantee was granted easements over the property described on Exhibit A attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, the Agreement provides in Section 4 that the Grantee shall have the right to abandon the easements granted by recording a document sufficient to remove the Grantee's rights on and to such easements from the public records; and WHEREAS, the purpose for the Easement depicted on Exhibit B, attached hereto, ("Easement") no longer exists and the Grantee wishes to abandon such Easement in accordance with Section 4 of the Agreement; and WHEREAS, all other easements granted by virtue of the Agreement will remain in place until released and vacated by the Grantee recording a document sufficient to remove the Grantee's rights on and to such easements from the public records, in accordance with Section 4 of the Agreement. NOW THEREFORE, Grantee hereby releases, vacates, and disclaims all of its rights heretofore granted by virtue of said Easement, depicted on Exhibit B, over the Property legally described on Exhibit A. [REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK, SIGNATURE PAGE FOLLOWS] {17336 / 65935; }

3 IN WITNESS WHEREOF, the Grantee has caused this Release and Vacation to be executed as of the day and year first above written. CITY OF WESTWOOD, KANSAS By: John Ye, Mayor {17336 / 65935; }

4 EXHIBIT A Property DESCRIPTION: All that part of the Northwest 1/4 of the Northwest 1/4 of the Northeast 1/4 of Section 3, Township 12, Range 25, in Westwood, Johnson County, Kansas, described as follows: Beginning at a point on the East line of said 1/4 1/4 1/4 Section, that is South East, feet from the Northeast corner thereof, thence South East along said East line, feet to a point on the North line of Mission Circle, a subdivision; thence North West along said North line feet to a point on the East line of the West 180 feet of said 1/4 1/4 1/4 Section; thence North West along the East line of said West 180 feet, feet to a point on the South line of the North 155 feet of said West 180 feet; thence South 90 West along the South line feet to a point on a line parallel to and feet East of the West line of the Northwest 1/4 of the Northwest 1/4 of said Northeast 1/4; thence North West along said parallel line feet to a point on the South line of 47th Street, as established by Warranty Deed, recorded in Book 335 at Page 75; thence North East along said South line feet to an angle point; thence North 90 East along the South line of said 47th Street and the Easterly prolongation thereof, being a line parallel to and feet South of the North line of said 1/4 1/4 1/4 Section, feet to the point of beginning. Except the following described tract of land: Beginning at a point lying 35.0 feet South of the North line and 50.0 feet East of the West line of said 1/4 1/4 1/4 Section, said point being an angle point on the South right-of-way line of 47th Street, as now established; thence due East along said right-of-way line, all subsequent bearings being in relation thereto, a distance of 25.0 feet; thence South East, a distance of 40.0 feet; thence West, a distance of 40.0 feet; thence North West, a distance of 25.0 feet to the said right-of-way line of 47th Street; thence North East along said right-of-way line, a distance of feet to the point of beginning. {17336 / 65935; }

5 EXHIBIT B Released Property {17336 / 65935; }

6 ACCESS EASEMENT THIS ACCESS EASEMENT (this "Easement") is made and entered into as of this 13 th day of September, 2012, by and between Wal-Mart Real Estate Business Trust ("Grantor") and the City of Westwood, Johnson County, Kansas, a municipal corporation ("Grantee"). RECITALS: WHEREAS, Grantor is the record owner of the tract of land legally described on Exhibit A, attached hereto (the "Property"); WHEREAS, Grantee is the record owner of the tract of land legally described on Exhibit B, attached hereto (the "Grantee Tract"); WHEREAS, Grantee desires a non-exclusive access easement in favor of Grantee across the portion of the Property legally described and depicted on Exhibit C (the "Easement Area") for access, ingress and egress to and from the electrical panel and related facilities located on the Grantor's Property that serves the fountain located on the Grantee Tract; and WHEREAS, the Easement Area is a part of Grantor's parking lot, which serves its retail operation conducted on the Property. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section Access Easement. ARTICLE I - GRANT OF ACCESS EASEMENT (a) Grantor hereby grants in favor of Grantee a non-exclusive access easement, appurtenant to the Grantee Tract, over, across and through the Easement Area for the sole purpose of vehicular and pedestrian access to and from the electrical panel and related facilities located on the Property. (b) Grantor shall maintain and repair the Easement Area as it determines in its sole discretion at its sole cost and expense. (c) Grantee shall utilize the Easement Area in accordance with all federal, state and local laws and shall not in any fashion block or restrict access to the Easement Area or construct any improvement within the Easement Area, it being understood that Grantor requires the continuous use of the Easement Area during the term of this Easement for use as a parking lot. (d) Notwithstanding anything to the contrary in this Section 1.01, the parties agree that at all times during the term of this Easement, Grantor shall have unimpeded vehicular and pedestrian access over and across the Easement Area (unless otherwise agreed to by Grantor in writing) and {88888 / 00038; }

7 Grantee shall be financially responsible for any damage to the Easement Area caused by Grantee (or any of its employees, invitees, or agents) and shall reimburse Grantor for the cost of the same within thirty (30) days of receipt of notice of such damage from Grantor. ARTICLE II - TERM Section Perpetual Easement. This Easement and the easements, rights, obligations and liabilities created hereby shall run with the land and be binding on all future owners, successors and assigns, unless and until such time as the Easement Area may be dedicated by Grantor to any public authority for use as a public road, at which time this Easement shall forfeit and be of no further force and effect. Grantee shall cooperate with Grantor and/or any applicable public or governmental authority in the execution of any required documentation necessary to accomplish any such dedication. ARTICLE III - EFFECT OF INSTRUMENT Section Non-Dedication. Nothing contained in this Easement shall be deemed to be a gift or dedication of any portion of the Parcels to the general public or for any public use or purpose whatsoever, it being the intention of the parties hereto and their successors and assigns that nothing in this Easement, expressed or implied, shall confer upon any person, other than the parties hereto and their successors and assigns, any rights or remedies under or by reason of this Easement. ARTICLE IV - NOTICES Section Notices. Any notice, report or demand required, permitted or desired to be given under this Easement shall be in writing and shall be deemed to have been sufficiently given or served for all purposes upon receipt or refusal of receipt when sent by (i) registered or certified mail, return receipt requested, or (ii) personal hand delivery, or (iii) overnight courier service, to the parties at the addresses shown below or at such other address as the respective parties may from time to time designate by like notice. To Grantor: With a Copy to: Shannon Marcano, Esq. White, Goss, Bowers, March Schulte & Weisenfels 4510 Belleview, Suite 300 Kansas City, Missouri {88888 / 00038; } 2

8 If to Grantee: City Clerk City of Westwood, Kansas 4700 Rainbow Blvd Westwood, Kansas Section Miscellaneous. ARTICLE V MISCELLANEOUS (a) If any provision of this Easement, or portion thereof, or the application thereof to any person or circumstances, shall, to any extent be held invalid, inoperative or unenforceable, the remainder of this Easement, or the application of such provision or portion thereof to any other persons or circumstances, shall not be affected thereby; it shall not be deemed that any such invalid provision affects the consideration for this Easement; and each provision of this Easement shall be valid and enforceable to the fullest extent permitted by law. (b) This Easement shall be construed in accordance with the laws of the State of Kansas. (c) The Article headings in this Easement are for convenience only, shall in no way define or limit the scope or content of this Easement, and shall not be considered in any construction or interpretation of this Easement or any part hereof. (d) Nothing in this Easement shall be construed to make Grantor and Grantee partners or joint venturers or render either liable for the debts or obligations of the other. (e) This Easement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed an original. [Remainder of page intentionally left blank. Signature page follows.] {88888 / 00038; } 3

9 IN WITNESS WHEREOF, the undersigned has caused this Easement to be executed as of the day and year first above written. By: Name: Title: STATE OF ) ) ss. COUNTY OF ) On this day of, 2012, before me, the undersigned Notary Public, in and for said state, personally appeared of, a known to me to be the person who executed the within instrument in behalf of said and acknowledged to me that he/she executed the same for the purposes therein stated. Subscribed and sworn to me the day and year above written. My commission expires Notary Public: {88888 / 00038; } 4

10 IN WITNESS WHEREOF, the undersigned has caused this Easement to be executed as of the day and year first above written. By: Name: Title: STATE OF ) )ss. COUNTY OF ) On this day of, 2012, before me, Notary Public in and for said County and State, personally appeared, of, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as the free act and deed of said for the purposes stated therein. Signature of Notary Public Printed Name of Notary Public My Commission Expires: {88888 / 00038; } 5

11 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY DESCRIPTION: All that part of the Northwest 1/4 of the Northwest 1/4 of the Northeast 1/4 of Section 3, Township 12, Range 25, in Westwood, Johnson County, Kansas, described as follows: Beginning at a point on the East line of said 1/4 1/4 1/4 Section, that is South East, feet from the Northeast corner thereof, thence South East along said East line, feet to a point on the North line of Mission Circle, a subdivision; thence North West along said North line feet to a point on the East line of the West 180 feet of said 1/4 1/4 1/4 Section; thence North West along the East line of said West 180 feet, feet to a point on the South line of the North 155 feet of said West 180 feet; thence South 90 West along the South line feet to a point on a line parallel to and feet East of the West line of the Northwest 1/4 of the Northwest 1/4 of said Northeast 1/4; thence North West along said parallel line feet to a point on the South line of 47th Street, as established by Warranty Deed, recorded in Book 335 at Page 75; thence North East along said South line feet to an angle point; thence North 90 East along the South line of said 47th Street and the Easterly prolongation thereof, being a line parallel to and feet South of the North line of said 1/4 1/4 1/4 Section, feet to the point of beginning. Except the following described tract of land: Beginning at a point lying 35.0 feet South of the North line and 50.0 feet East of the West line of said 1/4 1/4 1/4 Section, said point being an angle point on the South right-of-way line of 47th Street, as now established; thence due East along said right-of-way line, all subsequent bearings being in relation thereto, a distance of 25.0 feet; thence South East, a distance of 40.0 feet; thence West, a distance of 40.0 feet; thence North West, a distance of 25.0 feet to the said right-of-way line of 47th Street; thence North East along said right-of-way line, a distance of feet to the point of beginning. {88888 / 00038; } 6

12 EXHIBIT B LEGAL DESCRIPTION OF THE GRANTEE TRACT Beginning at a point lying 35.0 feet South of the North line and 50.0 feet East of the West line of said 1/4 1/4 1/4 Section, said point being an angle point on the South right-of-way line of 47th Street, as now established; thence due East along said right-of-way line, all subsequent bearings being in relation thereto, a distance of 25.0 feet; thence South East, a distance of 40.0 feet; thence West, a distance of 40.0 feet; thence North West, a distance of 25.0 feet to the said right-of-way line of 47th Street; thence North East along said right-of-way line, a distance of feet to the point of beginning. {88888 / 00038; } 7

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14 EXHIBIT C LEGAL DESCRIPTION AND DEPICTION OF THE EASEMENT AREA {88888 / 00038; } 9

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