Landscape in ROW
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REFERENCE:
RESOLUTION NUMBER 01-5754 "I~
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LICENSE AGREEMENT FOR COOPERATIVE LANDSCAPING
ON PUBLIC RIGHT-OF-WAY
This License Agreement for Cooperative Landscaping on Public Right-of-way
("License Agreement") in entered into this 27th day of August, 2001 by and between the
City of Salina, Kansas ("City") and Green Lantern, Inc., a Kansas corporation
("Licensee") .
Recitals
A. The Licensee is developing as a convenience store and automated
car wash the commercial tract of real estate located at the southwest comer of the
intersection of South Ninth Street and West Magnolia Road in the City of Salina,
Kansas, legally described as:
Lot Two (2), Block One (1), Mid-State Plaza Addition to the City of
Salina, Saline County, Kansas (the "Private Property")
B. The City has recently completed significant improvements to the
intersection of South Ninth Street and West Magnolia Road.
C. The City and the Licensee wish to cooperatively provide for an integrated
landscape plan for the Private Property and the abutting public right-of-way in
furtherance of the City's goal of beautifying its entryway corridors, including public-
private partnerships where feasible, and in a manner consistent with Salina Code Section
35-40.
D. The Licensee has submitted and city staff has approved a landscape plan
for the Private Property and the abutting right-of-way, a reduced copy of which is
attached as Exhibit A, (the "Landscape Plan"). The Landscape Plan includes four
separate landscape areas noted on the Landscape Plan as A, B, C, and D. Areas B, C, and
D are located strictly on the Private Property. Only area A includes Private Property and
the abutting public right-of-way ("Area A") and is the only area addressed by this
License Agreement.
E. The governing body of the City has determined that the public interest is
best served by the use of the public right-of-way as provided for in this License
Agreement.
THE PARTIES therefore agree and covenant:
1. Grant of License. The City grants a license to Licensee, subject to the
terms of this License Agreement, (the "License") to use the Right-of-way depicted on the
attached and incorporated Exhibit B (the "Licensed Right-of-way") for the limited
purposes of:
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(a) Installing and maintaining landscaping in strict adherence to the
Landscape Plan.
(b) Designing, installing, and maintaining an irrigation system
approved by the City for Area A (the "Irrigation System").
2. Term of License. This License Agreement shall be for an initial term of
five (5) years commencing August 27, 2001 and ending August :.7 4 2006 ("Primary
Term"). Unless Licensee shall give notice to the City of its intent to terminate this
License Agreement no later than ninety (90) days prior to the end of the Primary Term,
this License Agreement shall thereafter self-renew each subsequent year until the earlier
of:
(a) Termination of the License by the Licensee at any time after no
less than 60 days notice from Licensee to the City.
(b) Termination of the License based upon Licensee's failure to
maintain the Licensed Right-of-way as provided in section 6 below.
(c) Notification of Licensee 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.
3. Implementation of Landscape Plan for Area A. Implementation of the
Landscape Plan for Area A shall be fully implemented no later than November 1, 2001,
except to the extent that the Licensee identifies and the City approves certain plantings
that are more likely to survive a spring planting, for which the planting deadline shall be
March 1, 2002.
4. Irrigation System. Implementation ofthe Landscape Plan for Area A shall
include the installation of the Irrigation System, as follows:
(a) The Irrigation System for area A shall be plumbed and metered
separately to accurately calculate the water costs to be paid by the City under
section 5 below.
(b) The City agrees to reimburse the Licensee for the cost of installing
that portion of the Irrigation System necessary to irrigate the Licensed Right-of-
way in an amount not to exceed $6,500. Licensee shall provide the City with an
itemization of the cost of installing the Irrigation System for all of area A when
requesting reimbursement for that portion of the Irrigation System installed in the
Licensed Right-of-way. The Irrigation System, including that portion located in
the Licensed Right-of-way shall be the property of the Licensee.
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(c) The Licensee shall be fully responsible for any cost associated with
the ongoing maintenance of the Irrigation System in fully operable condition.
5. Cost of watering. The City shall be responsible for the cost of the water
necessary to properly irrigate Area A. Upon termination of this agreement, the City shall
no longer be responsible for the cost of the water necessary to irrigate Area A.
6. Landscape Maintenance. Licensee shall maintain Area A 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
Area A 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 Licensee. 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 March 15th through April 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.
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 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 andlor the public utility company, as they shall determine, shall be
responsible for fully restoring the Licensed Right-of-way at no expense to the Licensee.
8. Indemnification and Hold Harmless. Licensee shall indemnify and hold
and save the City, its officers, employees, agents, and contractors harmless form any loss,
cost, expense, penalty, damage, or judgment, including attorneys fees, that may arise
from the Licensee's use of the Licensed Right-of-way.
9. Notices. Any notice to either party shall be sufficient if mailed by United
States main, postage prepaid, at the following addresses:
City of Salina, Kansas
C/O City Clerk
P.O. Box 736
Salina, KS 67402-0736
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Green Lantern, Inc.
Attn.: James C. Maes
500 Graves Boulevard
Salina, KS 67401
10. Assignment of License. The assignment of any rights under this License
Agreement by Licensee shall be subject to the prior written consent of the City.
11. Binding Effect. The City and the Licensee agree that this License
Agreement shall be recorded with the Office of the Salina County Register of Deeds and
shall be indexed to the Private Property. This License Agreement shall "run with the
land" in relation to the Private Property and shall be binding upon and inure to the
benefit of Licensee's successors and assigns, and any subsequent owners of the Private
Property.
EXECUTED the day and year first above written.
CITY OF SALINA, KANSAS
By:
ATTEST:
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Lieu Ann Nicola, City Clerk
GREEN LANTERN, INC.
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ACKNOWLEDGEMENTS
STATE OF KANSAS, SALINE COUNTY, ss:
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BE IT REMEMBERED, that on thisc2? day of August, 2001, before me, the
undersigned, a notary public in and for the county and state aforesaid, came Kristin M.
Seaton, Mayor of the City of Salina, Kansas, and Lieu Ann Nicola, City Clerk, who are
personally known to me to be the same persons who executed as such officers the within
instrument of writing on behalf of the City of Salina, Kansas, and such persons duly
acknowledged the execution of the same to be the act and deed of said City.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year last above written.
~ BARBARAR. WEBER
Nal'ARV PIIIUC
. . STAlE OF
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Notary Public
STATE OF KANSAS, SALINE COUNTY, ss:
BE IT REMEMBERED, that on this ~<day of August, 2001, before me, the
undersigned a notary public in and for the county and state aforesaid, came James C.
Maes, Vice President for Operations, of Green Lantern, Inc., who is personally known to
me to be the same person who executed the above and foregoing instrument of writing
and duly acknowledged the execution of the same on behalf ofthe corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal the day and year last above written.
Ii. LaDONNA BENNETT
... Notary Public. State 01 K....
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Notary Public
STA1EClf~ 1 ~ j ) fllOFGtultoRD
COOllY 1f.sMIICE IV IN MY OffICE AT
;l:houO SEP 1 2 2001
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