License Agreement iiuiiiiiiiiiiiu111111HIIIIui111111Iiiiiuiuiiiiiiiuiiiiuuiiiiii111IUIIi
REBECCA SEEMAN
'' "''"':•REGISTER OF DEEDS SALINE COUNTY KANSAS
i.JBook:1346 Page: 1855-1860
Receipt #: 118727 Recording Fee: $106.00
Pages Recorded: 6C N
Date Recorded: 8/31/2018 9: 17:44 AM
LICENSE AGREEMENT
For
UNDERGROUND VAULT IN PUBLIC RIGHT-OF-WAY
This License Agreement is made this 6th day of August 2018, by and between the CITY OF
SALINA, KANSAS, a Kansas municipal corporation (the "City") and STEEFEL THEATRE FOR THE
PERFORMING ARTS FOUNDATION f/k/a THE HISTORIC FOX THEATER OF SALINA
FOUNDATION, a Kansas not-for-profit corporation(the "Owner").
A. The Owner owns and occupies a building known as the Stiefel Theatre ("Theatre")
located on real estate in downtown Salina, Saline County, Kansas addressed as 151 South Santa Fe
Avenue and legally described as:
The East Eighty (80) feet of the South Half(S/2) of Lot One Hundred Thirty-three (133) and all
of Lots One Hundred Thirty-five (135) and One Hundred Thirty-seven (137) on Santa Fe
Avenue, in the Original Town of Salina, Saline County, Kansas(`Owner's Property").
B. The south property line ("Property Line") of Owner's Property abuts the Walnut Street
public right-of-way (`Right-of-Way") and the public sidewalk constructed on the Right-of-Way
("Sidewalk")as depicted on the attached and incorporated Exhibit A.
C. There exists beneath the Sidewalk and in the Right-of-Way two underground vaults
accessible from the basement of the Theatre ("Basement") depicted on Exhibit A as Vault 1 and Vault 2
(collectively,the "Underground Vaults").
D. In conjunction with comprehensive public improvements to the Right-of-Way as part of
the City's downtown streetscape project ("Streetscape Project"), the City has determined, and Owner
acknowledges, that public safety and future maintenance considerations warrant addressing the status and
use of the Underground Vaults located in the Right-of-Way.
E. The Owner has requested the ability to continue to utilize Vault 1 for the purposes of
storage and continued operation of HVAC systems and related utilities for the reason that removing and
relocating the HVAC systems and related utilities would result in considerable expense and further
aggravate current space limitations within the Basement.
THE PARTIES, therefore agree and covenant:
1. Findings. The recitals set forth above are incorporated as part of this Agreement. The
City finds that granting a license to the Owner for continued use of the Vault 1 exclusively for storage and
continued operation of HVAC systems and related utilities (the "Authorized Use") should not interfere
with use of the Right-of-Way by the City or its franchisees and that the public interest will be served by
granting a license to the Owner to use Vault 1 exclusively for the Authorized Use, subject to the terms
and conditions of this License Agreement.
Book 1346 Page 1856
2. Streetscape Project.
(a) The Work. The Streetscape Project includes reconstruction of the Sidewalk to
include reconfigured stairs and an accessible exit ramp from the Theatre. The Sidewalk
reconstruction will include reconstruction of that segment of the Sidewalk over Vault 1 by installing
an integrated steel and concrete panel spanning the existing sidewalls of Vault 1 and construction
of a wall required to seal off and fill Vault 2, both based upon a licensed professional engineer's
design and at City expense, (collectively, the "Work").
(b) Access. Owner agrees to grant the City and its contractors, agents,and employees
reasonable access to the Basement for the purposes of(1) photographing the Underground Vaults
from the vantage point of the Basement prior to commencement of the Work, (2) accessing the
Underground Vaults with equipment and personnel necessary to complete the Work, including the
disconnection and reconnection of the HVAC systems, and (3)photographing the completed Work
from the vantage point of the Basement. City agrees to provide Owner three (3) days' notice of
need for access to the Basement and will diligently pursue uninterrupted completion of the Work
following commencement.
(c) Indemnification by Contractor. Owner acknowledges having received and read a
copy of the First Addendum to Construction Contract dated August 6,2018("Addendum")between
the City and Smoky Hill. L.L.C. (the "Contractor"), and further acknowledges and consents to the
terms and conditions of Section 2 thereof relating to Contractor's agreement to defend, indemnify
and hold harmless the Owner Indemnified Parties as third-party beneficiaries of the Addendum,
from certain claims, damages, losses, and expenses arising from Contractor's performance of the
Work or entry into the Owner's property.
3. Grant. The City grants a license to the Owner for use of the Right-of Way for the limited
purpose of continuing the Authorized Use of the Vault I in its current dimension and location as depicted on
Exhibit A. subject to the terms and conditions of this License Agreement(the"License").
4. Maintenance. The Owner shall be responsible, at its sole cost and expense, for
maintaining Vault 1 and its contents in a good and safe condition.
5. Alteration. The Owner shall not make any alterations to or expansion of Vault I without
the prior written consent of the City by an amendment to this Agreement.
6. Indemnification. The Owner shall defend, indemnify, and hold harmless the City, its
agents, representatives, officers, officials, and employees from and against any and all claims, damages,
losses,judgments and expenses (including but not limited to attorney fees and court costs) that may arise
from or in any way relate to this Agreement or the Owner's use of Vault 1.
7. General Liability Insurance.
(a) The Owner agrees to procure and maintain, during the term of this License
Agreement for their use of Vault I located in the Right-of-Way, commercial general liability
insurance, bodily injury and/or property damage, with limits not less than $1,000,000 each
occurrence and $2,000,000 general aggregate. The City shall be named as an additional insured on
Owner's general liability policy. The Owner shall keep on file with the City a certificate of
insurance that shows compliance with its obligations as set forth herein. The Owner agrees to
obtain insurance coverage or self-insure itself for contents or owned equipment associated with the
Authorized Use of Vault 1. Owner or its insurance representative shall provide for at least thirty
(30)days prior written notice of cancellation or any changes of insurers to the City.
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Book 1346 Page: 1857
(b) The insurance limits outlined above represent the minimum coverage limit and do
not infer or place a limit of liability of the Owner nor has the City assessed the risk that may be
applicable to the Owner.The Owner's liability program will be primary and any insurance maintained
by the City(including self-insurance)will not contribute with the coverage maintained by the Owner.
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 who offers proof
that it is licensed to do business in the State of Kansas and carries a Best's rating of"A:X"or better;
or is a company mutually agreed upon by the City and the Owner.
8. Term. The License shall commence upon execution of this Agreement, and shall continue
until the earlier of:
a. Discontinuation of the Owner's use of Vault I;
b. Termination by the City based upon the failure of the Owner to undertake and
diligently pursue reasonable steps necessary to comply with any term, condition,
or covenant of this Agreement within (30) days after written notice from the City
to the Owner of the specific failure to comply; or
c. Written notification to the Owner by the City that the public interest is best served
by the use of the 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.
9. Responsibilities upon Termination. In the event of termination pursuant to Section 8
above, the City and the Owner shall mutually agree upon a reasonable means of and cost allocation for
safely securing the Basement and the Right-of-Way.
10. Amendments. Neither this Agreement nor any of its terms may be changed or modified,
or waived except by an instrument in writing signed by an authorized representative of the party against
whom the enforcement of the change, modification, or waiver is sought. Any such amendment may be
recorded and indexed to the Property in the records of the Saline County Register of Deeds.
11. Notices. All notices required or permitted to be given pursuant to this 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 Owner: Stiefel Theatre
Ann: City Clerk Attn: Executive Director
P.O. Box 736 151 S. Santa Fe Ave.
Salina, KS 67402-0736 Salina, KS 67401
12. No Waiver. No failure or delay by a party hereto to insist on the strict performance of any
term of this Agreement, or to exercise any right or remedy consequent to a breach thereof, shall constitute
a waiver of any breach or any subsequent breach of such term. No waiver of any breach hereunder shall
affect or alter the remaining terms of this Agreement, but each and every term of this Agreement shall
continue in full force and effect with respect to any other then existing or subsequent breach thereof.
3
Book 1346 Page: 1858
13. Invalidity in Part. If any clause, sentence, or paragraph of this Agreement shall be held to
be invalid, it shall not affect the validity of the remaining provisions of this Agreement.
14. Applicable Law; Venue. This Agreement and its validity, construction and performance
shall be governed by the laws of Kansas. In the event of any legal action to enforce or interpret this Agreement,
the sole and exclusive venue shall be in the Saline County, Kansas District Court.
15. Assignment of License. The assignment of any rights under this Agreement by the Owner
shall be subject to the prior written consent of the City.
16. Binding Effect. The City and the Owner agree that this Agreement shall be recorded with
the Office of the Saline County Register of Deeds and shall be indexed to the Owner's Property. This
License shall "run with the land" in relation to the Owner's Property and shall be binding upon and inure
to the benefit of the Owner, its authorized or permitted successors and assigns, and any subsequent owners
of all or any portion of the Property.
EXECUTED the day and year first above stated.
CITY OF SALINA, KANSAS
By: ti
Karl F. Ryan, Mayor
ATTEST:
Shandi Wicks, CMC,City Clerk
STIEFEL THEATRE FOR THE PERFORMING
ARTS FOUNDATION f/k/a THE HISTORIC FOX
THEATER OF SALINA FOUNDATION
By: (/9 i
Keary ncock, oard President
4
Book 1346 Page: 1859
ACKNOWLEDGEMENTS
STATE OF KANSAS, COUNTY OF SALINE, SS:
This instrument was acknowledged before me on August 20 . 2018 by Karl F. Ryan as Mayor and
by Shandi Wicks as City Clerk of Salina, Kansas.
ALLISON STRAIT
(rotary Public- State of Kansas )( ,
My Appt. Expires 10125-LO Nbtan•Public
Printed Name: Pc\ \1SOo 5{•(ai{-
STATE OF KANSAS, COUNTY OF SALINE, SS:
This instrument was acknowledged before me on August 23 .2018 by Kenny Hancock as Board
President of Stiefel Theatre for the Performing Arts Foundation f/k/a the Historic Fox Theater of Salina
Foundation.
Notary Public
SUSAN L.GROSSER Printed Namex5 U50 fl L • G• r055ef
nag Notary Public-State of Kansas
My ADW. Expires/—(/— 7Qd-I
5
Book 1346 Page: 1860
Exhibit A
The Walnut Street Right of Way that abuts the south line of the of Lot 137
on Santa Fe Avenue, in the Original Town of Salina, Saline County, Kansas.
LOT 135
Q
RIGHT—OF= WA Y
a� '
o EDGE BUILDING
LOT 137
i 7VAUL T 2 VAULT 1
CURB LINE
Walnut Street
an'OF SALNA, J00 W A.41. SAWA, KANSAS
PUBLIC 46205-ENaSG- WVFES
L0 10 20 30 40 ��` EXHIBIT A
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