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License Agreement for Underground Vaults in Public ROW LICENSE AGREEMENT UNDERGROUND VAULTS IN PUBLIC RIGHT-OF-WAY This License Agreement is made this 18 day of April 2019, by and between the CITY OF SALINA, KANSAS, a Kansas municipal corporation (the "City"); 104 N. SANTA FE, LLC, a Kansas limited liability company (the "Owner"); KARIE BOGART, LISA HOLMES, and MISTY AFFHOLDER d/b/a Flippen Fabulous ("Tenant A"); NEX-TECH, L LC. , a Umilnl Usk corporation ("Tenant B"), and MAUREEN MATTISON d/b/a Eccentricity("Tenant C"). A. The Owner owns a building located on real estate in downtown Salina, Saline County, Kansas addressed as 104 North Santa Fe Avenue and legally described as: Lot One Hundred Five (105) and the North Half(N/2) of Lot One Hundred Seven (107) on Santa Fe Avenue, in the Original Town of Salina, Saline County, Kansas("Owner's Property"). B. The west 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 exist beneath the Sidewalk and in the Right-of-Way underground vaults accessible from the basement level of the building ("Basement") as depicted on Exhibit A (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 Underground Vaults for storage by the Owner and its tenants. 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 Underground Vaults exclusively for continued use by the Owner and its tenants for storage purposes (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 for continued use of the Underground Vaults by the Owner and its tenants 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 the Underground Vaults by installing an integrated steel and concrete panel spanning the existing sidewalls of the Underground Vaults, based upon a licensed professional engineer's design and at City expense, (collectively, the "Work"). (b) Access. Tenant A, Tenant B, and Tenant C (collectively the "Tenants") and the Owner agree 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. The City agrees to provide the Owner and the Tenants 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 and the Tenants acknowledge 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 acknowledge and consent 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 and the Tenants acknowledge receipt of a copy of the Second Addendum to Construction Contract and the terms of Section 2 relating to the Owner's and each Tenant's qualification as an additional insured under the Contractor's general liability coverage during the performance of the Work. The Owner and each Tenant will notify the City if the Owner or Tenant chooses to request a certificate of insurance from the Contractor's general liability insurance provider documenting the Owner's or Tenant'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 the Underground Vaults in their 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 the Underground Vaults and their 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 the Underground Vaults. 5. Alteration. The Owner shall neither make nor allow any alterations to or expansion of the Underground Vaults 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, any of the Tenants', or a future tenant's use of the Underground Vaults. 2 7. General Liability Insurance. (a) The Owner agrees to procure and maintain, during the term of this License Agreement for its use of the Underground Vaults located in the Right-of-Way, commercial general liability insurance, bodily injury and/or property damage, with limits not less than SI,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 the Underground Vaults. 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: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, Tenants', or future tenants' use of the Underground Vaults; 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_sha11"be 3 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: 104 N. Santa Fe, LLC Attn: City Clerk Roger Mattison, Resident Agent P.O. Box 736 104 N. Santa Fe Ave. Salina, KS 67402-0736 Salina, KS 67401 Tenant A: Karie Bogart, Lisa Holmes Tenant B: Nex-Tech, Lt-G and Misty Affholder Attn.: laott�nsfrr d/b/a Flippen Fabulous IN Santa FG FL/e 104 N. Santa Fe Ave. Ste. A Soatn& 4c5 4,140 I Salina, KS 67401 Tenant C: Maureen Mattison d/b/a Eccentricity 104 N. Santa Fe Ave. Ste. C 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. 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 by the authorized representatives of the parties. CITY OF SALINA,KANSAS By: r Ie ATTEST: /' nV, Trent W.Day .D.,Mayor <�icw d 4 Shandi Wicks, CMC, City Clerk 104 N.SANTA FE, LLC 61e4410 Q By: Edward A.Vidricksen,Member 2By: L!` 4 . Rog,�r W. Mattison,. em.- KARIE BOGART,LISA HOLMES.& MISTY AFFHOLDER d/b/a Flippen Famous PM Katie Bogart 4 , Lisa Holmes Al/A Misty Aflholder NEX-TECH, LLL By: bo u5 F- rpc+er [name] �y}ec4 Gr,9 b,ger [title] MAUREEN MATTISON d/b/a Eccentricity Maur Mattison. ACKNOWLEDGEMENTS STATE OF KANSAS,COUNTY OF SALINE, SS: 4 June This instrument was acknowledged before me on Awl 3_, 2019 by Trent W. Davis, M.D. as Mayor and by Shandi Wicks as City Clerk of Salina, Kansas. Ar LEANN M. JOHNSON rag Notzry P.bh'c•5 ;e of Kansas to MY APPt.Etpires(j�ZL�7ALZ a=.tary Public Learn U\. 30YH\S0n 5 Printed Name: t STATE OF MISSOURI,COUNTY OE; Ca ✓, ss:. This instrument was acknowledged before me on A u, 2019 by Edward A. Vidricksen as a member of 104 N. Santa Fe, LLC. VVVV LaTONYA M.BURGETTE 9 tL ,n e� No�ry Public—Notery Seal STAT&MISSOURI No Public Jackson County My Commission Expires June 24,2021 Printed Name:Lct(O ({_ (.412b> E„ Commission 013541433 (� STATE OF KANSAS,COUNTY OF SALINE, SS: This instrument was acknowledged before me on , 2019 by Roger W. Mattison as a member of 104 N. Santa Fe, LLC. 61 J�a g LEANN M. JOHN%nON `�% NotaryPublic-State o1 1ANotary P lic My Appt.Expires fn�2(oJ2on. Printed Name: „ 1-.2aM M rdivISbyy STATE OF KANSAS,COUNTY OF SALINE, SS: This instrument was acknowledged before me on April _, 2019 by Karie Bogart d/b/a Flippen Fabulous. • Notary Public Printed Name: • STATE OF KANSAS,COUNTY OF SALINE, SS: This instrument was acknowledged before me on April 19 , 2019 by Lisa Holmes d/b/a Flippen Fabulous. !� ( p a DAN STACK /j t ra i Notary Public-State of Kansas Notary Public LL11 My Appt. Expires December 200 Printed Name: Dan 1-0C k STATE OF KANSAS,COUNTY OF SALINE, SS: This instrument was acknowledged before me on April , 2019 by Misty Affholder d/b/a Flippen Fabulous. - Notary Public • Printed Name: s• . 6 STATE OF RANA (j ,COUNTY OF SaliA . SS: Q This instrument was acknowledged before me on April 18, 2019 by C:1005 {1arpSttras 4 54ktyrn En',nee(' of Nex-Tech, . DAN STACK l / /�� Notary Public-State or Kansas) Notary Public L My Appt. Expires December 201 Printed Name: be n f toC STATE OF KANSAS,COUNTY OF SALINE, SS: This instrument was acknowledged before me on April IP), 2019 by Maureen Mattison d/b/a Eccentricity. DAN ST/c;: 4 &T\ �4., Notary Public-v3:.c:r, -;a, Notary Public l My Appt. Expires Deceit 23,2ajo Printed Name: (1" 1 t 7 Exhibit A The Santa Fe Avenue Right of Way that abuts the west line of Lot 105 and the north half of Lot 107 on Santa Fe Avenue, in the Original Town of Salina, Saline County, Kansas. 1' JUnderground passage covered by concrete slab Height 6.7 ft floor to bottom of concrete slob 1cg_ h 05) Underground passage bnck,arch/top Height/7.0 ft floor to ceiling ,/ a//ff ., Eccentidty7 7 /// $ / y ' - - A \,, :/ : //10,4'N[Sahta�Fe,LLC '// Door 404:Narth Santa Fe Ara (C)- • • • Q „/ ./ 7, „.. , _ C I /7/7 /,7 �/����////��//7//�,/ ) Underground passage br,ck crab, top Hei¢t 7.0 ft floor to cebg // Ne fedi j///'7 : .- _ 'Cly /104"N.,Santo Fe, LLC / 104 North$anta Fe Ara (9)/ / / _-7 A i ,////////' / o g I/'/ ' // %/////�'/ r / ///,////, //i / /. / (,/� G� / �15J Undero���ssa��/ordi top�He j t"7.O�R�floar;tong / ,. — — J — — O/ " vi° fl/ppen Fabulous/�' / /, / 104'N.,Sajto M LLC /j,, / /% / r ° � / //iii,X-'//)/ // % ai (6) (9) (10) Underground passage covered by concrete slob Height &5 ft floor to top of concrete slob Brick Cellar - arch top u height 7.5 ft Underground stair Brick Cellar - arch top - — — — — c height 7.5 ft .. • 1i I m %%%/////////fid%%////%%/%%�%�%i%%//4 lf"O%�//% ,(4, 1%/%%%////%//,r//%/%///%/,�//O%% �j'7'/I%_” //, �� I 1 ❑ % 'd" � ❑ -. P I Iron Ave. t arra-SALIN, xa W VE SNJNA. KANSAS PERM nuzes- fNGNEE1Ir6 - urxrrrcs 0 to 20 30 40 EXHIBIT A iiimi lc SCALE 1' .• 20' woo --- . Mr 2019 1