Loading...
Underground Vault License Agreement (134 S Santa Fe Avenue) III imiiiiiiiiiiuuiiiiiiiiiiuiiiiiiiiuiiiiiiiruiiiiiuiii�iuii REBECCA SEEMAN - "*'REGISTER OF DEEDS SALINE COUNTY KANSAS (:,. , ?Book:1354 Page: 726-731 Receipt #: 122272 . I Recording Fee: $106.00 Pages Recorded: 6 G Date Recorded: 4/5/2019 3:06:52 PM LICENSE AGREEMENT UNDERGROUND VAULT IN PUBLIC RIGHT-OF-WAY This License Agreement is made thisazday of March 2019, by and between the CITY OF SALINA, KANSAS, a Kansas municipal corporation (the "City") and KRESS BUILDING. LLC; a Kansas limited liability company (the "Owner"). A. The Owner owns a building located on real estate in downtown Salina. Saline County. Kansas addressed as 134 South Santa Fe Avenue and legally described as: Lot One Hundred Twenty-six (126) on Santa Fe Avenue, in the Original Town of Salina. Saline County. Kansas (`Owner's Property"). B. The east property line ("Property Line") of Owner's Property abuts the Santa Fe Avenue 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 level of the building (`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 continued operation of utility systems for the reason that removing and relocating the utility systems would result in the need for considerable reconstruction of the Basement at considerable expense. THE PARTIES, therefore agree and covenant: 1. Findings. The recitals set forth above arc incorporated as part of this Agreement. The City finds that granting a license to the Owner for continued use of Vault I exclusively for continued operation of utility systems (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 I exclusively for the Authorized Use, subject to the terms and conditions of this License Agreement. 2. Streetscape Project. (a) The Work. The Streetscape Project will include reconstruction of that segment of the Sidewalk over Vault 1 by installing an integrated steel and concrete panel spanning the Boole 1354 Page: 727 4} existing sidewalls of Vault I 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. The 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, 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. The 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. (d) Additional Insured. The Owner acknowledges receipt of a copy of the Second Addendum to Construction Contract and the terms of Section 2 relating to Owner's qualification as an additional insured under the Contractor's general liability coverage during the performance of the Work. The Owner will notify the City if the Owner chooses to request a certificate of insurance from the Contractor's general liability insurance provider documenting the Owner's additional insured status. 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 Vault 1 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. The City shall be responsible, at its sole cost and expense, for maintaining the reinforced structural sidewalk slab over Vault 1. 5. Alteration. The Owner shall not make any alterations to or expansion of Vault 1 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 I. 7. General Liability Insurance. (a) The Owner agrees to procure and maintain, during the term of this License Agreement for their use of Vault 1 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 2 _ Book 1354 Page: 728 obtain insurance coverage or self-insure itself for contents or owned equipment associated with the Authorized Use of Vault I. 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. (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:1" 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 1; 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; provided, however, if termination occurs at the discretion of the City pursuant to Section 8(c) above, the City agrees to pay the cost of relocation from Vault 1 of(a) the fire protection service with backflow preventer and valves and (b) the domestic water service with meters and valves for both the 128 and 134 South Santa Fe buildings. 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: Kress Building, LLC Attn: City Clerk Attn: James B. Richardson P.O. Box 736 361 N. Holmes Road Salina, KS 67402-0736 Salina, KS 67401 3 Book 1354 Page: 729 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 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, Kanas 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 �n By: Trent W. Day's_, .J"-"" M.D., Mayor ATTEST: tam ^^��''// au git a Shandi Wicks,CMC,City Clerk KRESS BUILDING, LLC By: )d/hb /9 ,(.N•�:�/L-- mes B. Richardson, Me . By: I I i/ i= .. my. Richardson, Me .er BY: R..ert A. Kruse and Chandra L. Kruse Family Limited Partnership, Member p By: �es • t \ . Co2TRA. .P Pa.ix>^QA Ro.ert A. Kruse,General Partner By: it/l.• / • 'I - - Chandra L. Kruse.General Partner 4 ,-' _ Boolc 1354 Page: 730 .ACKNOWLEDGEMENTS STATE OF KANSAS, COUNTY OF SALINE, SS: ApriI This instrument was acknowledged before me on March I , 2019 by Trent W. Davis, M.D. as Mayor and by Shandi Wicks as City Clerk of Salina. Kansas. 4 LEANN M. JOHNSON r�// Notary Public -State of Kansas — ///� My Appt.Expires isfzio(tont itan,Pu. is Printed Name: Leann AA-3G{'t✓ISOJ On - STATE OF KANSAS, COUNTY OF SALINE. SS: �y This instrument was acknowledged before me on March 22-. 2019 by James B. Richardson as a member of Kress Building, LLC. 'n(/y/�/���/ NOTARY PUBLIC•State Of 1(ero/is L GL0 ��r/�// X �`_ Layla M.Peppers �, /1 / =rWL My Appt Expires I-24/2-2> Notary Public Printed Name: a- y l a Au . ?uppers OF KANSAS, COUNTY OF SALINE. SS: f 1 This instrument was acknowledged before me on March 2_7. 2019 by Julie D. Richardson as a meat-of Kress Buildin LLC. /n/ P4P0I2 TARYa aM.Ppiers .., xI I/�/pj„�/,Layla M.Peppers /V/�/ / 1l'. / /l!-"; My Appt.Expires"T'Z_-2.L_ Notar Publ� I ! r (AAFerret-- STATE Printed Nam : uAy[6( M. erreJ STATE OF KANSAS, COUNTY OF SALINE, SS: This instrument was acknowledged before me on March a `l . 2019 by Robert A. Kruse as a general partner of the Robert A. Kruse and Chandra L. Kruse Family Limited Partnership, a member of Kress Building, LLC. //////���}}} // _` CHRISTY P LYNS HUMPHREY ofKansas �J(1 ,�- �I 'A - � � Notary Public.State of Kansas QA - (/ el/yL/�"l_ _ --'��`--- My ntment Expires Notary Pu he --'w_rG-_ '7 -rt/ - 2(�� ittpkYety Printed Name: � 5 /LIl STATE OF KANSAS, COUNTY OF SALINE, SS: This instrument was acknowledged before me on March ''al . 2019 by Chandra L. Kruse as a general partner of the Robert A. Kruse and Chandra L Kruse Family Limited Partnership, a member of Kress Building, LLC. 04' .H.i.--1-1117/3- C., / / /CHRISM LYNN HUMPHREY d Namm - .L, •IL, i1 NotaryPublic.State of Kansas 5 • Book 1354 Page: 731 Exhibit A The Santa Fe Avenue Right of Way that abuts the east line of Lot 126 on Santa Fe Avenue, in the Original Town of Salina, Saline County, Kansas. RIGHT—OF—WAY--- EDGE IGHT—OF—WAY---EDGE BUILDING LOT 124 128 South Santo Fe • N C LOT 126 \ 1 134 South Santa Fe `CURB LINE 11- 01Y&SAUNA 300 W ASN, SAUNA KANSAS PUBLIC I107KS- ENGWEERLNG- UPU77FS .0 10 20 JO yo EXHIBIT A SCALE: 1' - 210 .� g91i..- Mar 2019 � t