Agreement for cooperative landscaping and storm water detention in the public R-O-W REBECCA SEEMAN
REGISTER OF DEEDS SALINE COUNTY KANSAS
y i Book: 1278 Page: 703-711
,.•.. ..,.,.•`3 Receipt =:-93356 ^�\ Recording Fee: 452.00
s.t jj.. Pages Recorded: 12 Vv &ac o&
Date Recorded: 2/25//2"011 12:01:56 PM
Grantor
Grantee
Type of Document License Agreement
Recording Fees $52.00
Mtg Reg Tax $0.00
Total Amount $52.00
Return Address ROOM 206
MIKI
Book : 1278 Page: 705
1. Grant of License. The City grants a license to Licensees, subject to the
terms of this License Agreement (the "License"), to use the right-of-way described and
depicted on the attached and incorporated Exhibit B (the "Licensed Right-of-Way") for
the limited purposes of:
a. Installing and maintaining landscaping in Areas A and B in adherence to
the approved Landscape Plan; and
b. Designing, installing, and maintaining an irrigation system approved by the
City for Areas A and B (the "Irrigation System").
c. Constructing, operating, maintaining and repairing a storm water detention
basin and related storm water control facilities, including a storm water
pump, within the licensed right-of-way in accordance with the City-
approved plans and specifications ("the Drainage Facilities").
2. Implementation of Landscape Plan for Areas A and B. The Landscape
Plan for Areas A and B shall be fully implemented before the City's issuance of a
Certificate of Occupancy for the building(s) to be constructed on the Private Property,
unless Licensees enter into a landscape compliance agreement deemed acceptable to
the City, and provide all required financial security.
3. Irrigation System. Implementation of the Landscape Plan for Areas A and
B shall include the installation of the Irrigation System, as follows:
a. The irrigation system for Areas A and B shall be plumbed and metered
separately from the convenience store building.
b. The Irrigation System, including that portion located in the Licensed Right-
of-Way, shall be the property of the Licensees.
c. The Licensees shall be fully responsible for any cost associated with the
ongoing maintenance of the Irrigation System in fully operable condition.
4. Cost of watering. The Licensees shall be responsible for the cost of the
water necessary to properly irrigate Areas A and B.
5. Landscape Maintenance. Licensees shall maintain Areas A and B in
accordance with Salina Code Sec. 42-65(9), and as that section or its substantial
equivalent may be amended from time to time. In addition to the enforcement measures
applicable to the landscaping maintained on private property under the Salina Code, the
landscaping in Areas A and B shall be subject to periodic inspection by the zoning
administrator, or an authorized representative, to determine compliance with the
Landscape Plan and the requirements of this section. When the landscaping has not
been installed, maintained, or replaced to comply with the Landscape Plan or the
requirements of this section a written corrective order shall be issued to the Licensees.
• Book: 1278 Page : 706
Any work required under a written corrective order must be completed no later than the
next following planting season, which for the spring season shall be April 15th through
May 15th and for the fall season shall be September 15th through October 15th. Failure to
complete the work required by the written corrective order by the end of the next
following planting season may, at the option of the City, result in termination of the
License.
6. Maintenance of Storm Water Detention Area. Licensees acknowledge that
the Drainage Facilities are designed and intended to collect and detain surface storm
water from the Private Property. Licensees covenant and agree to regularly and -
routinely, and at their own cost and expense, inspect, clean and maintain the Drainage
Facilities and otherwise keep the Drainage Facilities in good repair and working order.
Licensees shall keep the Drainage Facilities free and clear of materials and obstructions
which may impair its function and shall not alter the capacity of or make any material
modifications to the Drainage Facilities unless and until the City Engineer has approved
in writing the plans and specifications for the proposed modification.
If the City determines, in its sole discretion, that the Drainage Facilities are not properly
cleaned, maintained, or otherwise kept in good repair or working order, the City shall
provide written notice of the deficiency to Licensees. If the deficiency remains unabated
by Licensees thirty (30) days after the date of the written notice, the City shall have the
right, but not the obligation, to perform such cleaning, maintenance, repairs, and
reconstruction as deemed necessary by the City Engineer to correct the deficiency.
Licensees shall be liable for and shall reimburse the City for the City's actual costs and
expenses incurred in connection with the performance of any such cleaning,
maintenance, repairs and reconstruction. For purposes of this License Agreement, the
term "actual costs and expenses" shall include, but shall not be limited to, the City's
labor costs, tool and equipment costs, supply costs, and engineering and design costs,
regardless of whether the City uses its own personnel, tools, equipment, and supplies. If
such actual costs and expenses are not fully paid within thirty (30) days after delivery to
Licensees of a written request for reimbursement from the City, such costs may be
assessed against the Property. The City Clerk shall, at the time of certifying
assessments to the County Clerk, certify any such costs and expenses, and the County
Clerk shall extend the same on the tax rolls of Saline County against the Private
Property, which shall be collected and paid to the City as other assessments are
collected and paid. Licensees acknowledge and agree that the City may, in addition to
or in lieu of levying such costs and expenses against the Private Property, maintain an
action against Licensees for collection of such costs in the same manner as any other
obligation owed to the City.
7. Landscaping as Public Improvement in Right-of-way. The Irrigation
System and landscaping installed, planted, and maintained in the Licensed Right-of-way
pursuant to this License Agreement shall be regarded as a public improvement for
purposes of any restoration requirements under the City's franchise ordinances with the
various public utilities and service providers utilizing the public right-of-way. In the event
3
Book: 1278 Page : 707
removal or damage to the Irrigation System or landscaping in the Licensed Right-of-way
results from the need of a public utility to perform work in the Licensed Right-of-way, the
City and/or the public utility company, as they shall determine, shall be responsible for
fully restoring the Licensed Right-of-way in a manner consistent with the original
implementation of the Landscape Plan, at no expense to the Licensees.
8. Indemnification and Hold Harmless. Licensees shall indemnify and hold
and save the City, its officers, employees, agents, and contractors harmless from any
loss, cost, expense, penalty, damage, or judgment, including attorneys fees, that may
arise from the Licensees' use of the Licensed Right-of-way.
9. Insurance Requirements. The Licensees agree to procure and maintain,
during the term of this License Agreement and any extension thereof for their use and
operations on the Right-of-Way, commercial general liability insurance with limits not
less than $1,000,000 each occurrence bodily injury and/or property damage, including
the risk of explosion, collapse & underground; $500,000 personal and/or advertising
injury limit, $1,000,000 products and completed operations aggregate and $1,000,000
general aggregate; $500,000 Auto Liability for all Owned, Hired and Non-Owned Autos;
and Statutory Worker's Compensation insurance. Licensees are responsible to ensure
their independent contractors carry coverage equal or greater than that required of the
Licensees. City shall be named as an additional insured on Licensees' general liability
policy. Licensees shall keep on file with City a certificate of insurance that shows
compliance with the obligations as set forth herein. Licensees agree to obtain
insurance coverage or self-insure themselves for contents or owned equipment
associated with their own operation(s). Licensees or their insurance representative
shall provide for at least (30) days prior written notice of cancellation or any changes of
insurers to City.
The insurance limits outlined above represent the minimum coverage limit and do
not infer or place a limit of liability of the Licensees nor has the City assessed the risk that
may be applicable to the Licensees. The Licensees' liability program will be primary and
any insurance maintained by the City (including self-insurance) will not contribute with the
coverage maintained by the Licensees. Coverage limits outlined above may be met by a
combination of primary and excess liability insurance programs. The City will only accept
coverage from an insurance carrier that it is admitted to do business in the State of
Kansas, and carries a Best's rating of "A-VII" or better; or is a company mutually agreed
upon by the City and the Licensees.
10. Term of License. The License shall commence upon execution of this
License Agreement and shall continue until the earlier of:
a. Termination of the License by the Licensees at any time after no less than
60 days notice from Licensees to the City.
b. Termination of the License based upon Licensees' failure to maintain the
Licensed Right-of-way as provided in sections 5 and 6 above, or the
4
Book : 1278 Page : 708
failure to comply with any other term, condition or covenant of this License
Agreement, provided that such failure has not been cured by Licensees
within 60 days after written notice to do so has been provided to the
Licensees by the City.
c. Written notification to the Licensees by the City that the public interest is
best served by the use of the Licensed Right-of-way in a manner in
conflict with the License, and that the License shall terminate no less than
180 days following such notice.
11. • Obligations Upon Termination. Upon termination of this License
Agreement, the parties agree as follows:
a. At the request of the City, the Licensees shall, at their own cost and
expense, remove from the Licensed Right-of-way all or a portion of the
Irrigation System, and any other equipment, materials, and supplies
placed in the Licensed Right-of-way, and restore the Licensed Right-of-
way to as good a condition as existed prior to the grant of the License. If
the Licensees fail to remove the items and restore the Licensed Right-of-
way within 30 days after notice from the City to do so, the City shall have
the right to cause the necessary work to be performed and charge the cost
of the work against the Licensees and/or assess the costs as a special
assessment against the Private Property.
b. In addition to, and without limiting the rights and responsibilities set forth in
subsection (a) above, the City shall have the right and option, in its sole
discretion, to assume ownership of and responsibility for any or all of the
facilities located in the Licensed Right-of-way, free of cost, including but
not limited to the Irrigation System, storm water pump, landscaping, and/or
any other equipment located therein.
12. Notices. All notices required or permitted to be given pursuant to this
License Agreement shall be in writing and delivered personally or sent by registered or
certified mail, return receipt requested, or by generally recognized, prepaid, commercial
courier or overnight air courier service. Notice shall be considered given when received
on the date appearing on the return receipt, but if the receipt is not returned within five (5)
days, then three (3) days after mailed, if sent by registered or certified mail or
commercial courier service; or the next business day, if sent by overnight air courier
service. Notices shall be addressed as appears below for each party, provided that if any
party gives notice of a change of name or address, notices to the giver of that notice shall
thereafter be given as demanded in that notice.:
City: City of Salina, Kansas
C/O City Clerk
P.O. Box 736
Salina, KS 67402-0736
5
Book : 1278 Page : 709
Licensees: Kwik Shop, Inc. Cody, LLC
734 East 4th Avenue do Anne Henry
Hutchinson, KS 67501 5311 Mission Woods Rd.
Mission Woods, KS 66205
13. Assignment of License. The Licensees shall not be entitled to assign any
rights under this License Agreement without the prior written consent of the City.
Notwithstanding the foregoing, either of the Licensees may assign its rights under this
License Agreement without the written consent of the City, if such assignment is to an
affiliate, a wholly owned parent, or a subsidiary, or to an entity with which such Licensee
is under common ownership or control. In the event of any such transfer or assignment,
the Licensee shall: timely notify the City of the successor entity; provide a point of
contact for the successor entity; and advise the City of the effective date of the transfer
or assignment.
14. Binding Effect. The City and the Licensees agree that this License
Agreement shall be recorded with the Office of the Satine County Register of Deeds and
shall be indexed to the Private Property. This License shall "run with the land" in
relation to the Private Property and shall be binding upon and inure to the benefit of the
Licensees' authorized or permitted successors and assigns, and any subsequent
owners of the Private Property.
{Signature Page Follows}
6
Book : 1278 Page : 710
Executed the day and year first above written.
CITY OF(S ALINA, KANSAS
By: `14/1
B rbara V. Shirley, Mayor
ATTEST:
S/di Wicks, CMC, Interim City Clerk
CODY, LLC, a Kansas limited li.bility company
By: if, -
Or i/
AeP. Henry
Sole Member
KWIK SHOP, INC., a Kansas corporation
By: _
ACKNOWLEDGEMENTS
STATE OF KANSAS, COUNTY OF SALINE, ss:
This instrument was acknowledged before me on January 27 , 2014, by
Barbara V. Shirley, Mayor of the City of Salina, Kansas, and Shandi Wicks, CMC,
Interim City Clerk for the City of Salina, Kansas.
P�`` ^^ `
UD NCoYtNTPuHA• Ste WoOf KaLn FF Notary blic
My Appt.Expires I0.R•aolr
7
• Book: 1278 Page : 711
Executed the day and year first above written.
CITY OF SALINA, KANSAS
By: atUklc /
Ba ara V. Shirley, Mayor
ATTEST:
Shandi Wicks, CMC, Interim City Clerk
CODY, LLC, a Kansas limited liability company
By:
Anne P. Henry
Sole Member
KWIK SHOP, I C., a K-nsas corporation
_ BY: /.
O n S. /Aavei-
10°
ACKNOWLEDGEMENTS
STATE OF KANSAS, COUNTY OF SALINE, ss:
This instrument was acknowledged before me on January 2_1 , 2014, by
Barbara V. Shirley, Mayor of the City of Salina, Kansas, and Shandi Wicks, CMC,
Interim City Clerk for the City of Salina, Kansas.
041,c/hit
[4, NCYNTPHbriA S. WOLFF Notary I' blic
otary uk•State of Kans rY / /
MYAppt.Expires Jn-g-ntQ,c
7
Book : 1278 Page : 712
STATE OF KANSAS, COUNTY OF JOHNSON, ss:
This instrument was subscribed, sworn to, and acknowledged before me on
January 12 , 2014, by Anne Henry, Sole Member of ody, LLC'a -nsas f i d liability
company.
1p ._
RICHARD RALLS ' /
Notary Pit •/St3yyy'��� of Kansas A.
My Appt. Expires /j f -ota'ry 'u
STATE OF , COUNTY OF , ss:
This instrument was subscribed, sworn to, and acknowledged before me on
January , 2014, by for Kwik
Shop, Inc., a Kansas corporation.
Notary Public
•
8
• Book: 1278 Page : 713
STATE OF KANSAS, COUNTY OF JOHNSON, ss:
This instrument was subscribed, sworn to, and acknowledged before me on
January , 2014, by Anne Henry, Sole Member of Cody, LLC, a Kansas limited liability
company.
Notary Public
STATE OF 46115r35 , COUNTY OF 4e4■0 , ss:
This instrument was subscribed, sworn to, and acknowledged before me on
January 10 , 2014, by VA-n S. 97.141/e,2 , bite /•43!`dela-t for Kwik
Shop, Inc., a Kansas corporation. �$/e
JNDA BAKER
Y PUBLI /�/�
• ••To OF KANSAS Cf... GL/ /
ct.icl ;.:,AOCt.Exp.2-2-2oi/a Notary Public
8
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EXHIBIT A Book: 1278 Page : 714
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