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Agr: Use of Right-of-Way LICENSE AGREEMENT REBECCA SEEMAN ~. REGISTER Or DEEDS V't-,\ N SALINE COUNTY KANSAS Book: 1145 Page: 780 Receipt #: 39397 Total Fees: $28.00 Pages Recorded: 0 Date Recorded: 2/13/2007 3:05:03 PM r- . ... This License Agreement made this f~~day of February, 2007, by and between the CITY OF SALINA, KANSAS, a municipal corporation (the "City") and ST. JOHN'S EVANGELICAL LUTHERAN CHURCH, a Kansas not-for-profit corporation, (the "Licensee"). RECIT ALS A. ST. JOHN'S EVANGELICAL LUTHERAN CHURCH owns and occupies the property located on the following described real estate (the "Property"): .,/ All of Lots 170, 172, 174, 176, 178, 180 and the,Nyrth half of Lot 182 on Seventh Street and all of Lots 169, 171, 173 and 175 on Eigfith Street in the Original Town of Salina, Saline County, Kansas, addressed as 302 South Seventh Street. B. The above described church property is bisected by a ten (10) foot wide alley that runs north and south between Mulberry Street and South Street. The existing church building extends to within 3 ft. of the alley. C. The Licensee wishes to construct a porte cochere structure extending off of the west side of the church building across the public alleyway to provide a covered drop off area for members and guests using the west entrance to the church building (the "Improvement"). D. Construction of the above described Improvements can only be accomplished by spanning the public alley as depicted on the attached and incorporated Exhibit A. E. Vacation of the alley is not a feasible option because the alley provides access to the rear of properties located south of the church property. THE PARTIES THEREFORE AGREE: 1. Grant. The City hereby grants a license (the "License") to the Licensee to construct and maintain a porte cochere structure (the "Improvement") over and across a public alley right-of-way as depicted on Exhibit A (the "Right-of-Way"), for the purpose of providing weather protected shelter for vehicles and pedestrians. 2. Use of Right-of-Way. In the use of the Right-of-Way under this License Agreement, the Licensee shall be subject to all rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City and shall be subject to all applicable laws, orders, rules, and regulations adopted by governmental bodies now or hereafter having jurisdiction. In addition, the Licensee shall be subject to all rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City relating to permits and fees, Fire Department access, sidewalk and pavement cuts, utility location, construction coordination, beautification, and other requirements and limitations on the use of the public right-of-way and shall comply with the following: Boou: 1145 Page: 781 .,.. '" a. The Licensee's use of the Right-of-Way shall in all matters be subordinate to the City's use of the Right-of-Way for any public purpose. The Licensee shall coordinate the placement of the porte cochere in a manner which minimizes adverse impact on public improvements, as reasonably determined by the City. Where placement is not otherwise regulated, the porte cochere shall be placed with adequate vertical and horizontal clearance from such public improvements so as not to impact or be impacted by such public improvement. b. If the proposed parking lot west of the alley is not constructed, Licensee shall construct an all weather fire access lane west of the porte cochere to allow fire apparatus to go around the porte cochere. The Fire Chief shall approve plans and specifications for the fire access lane prior to construction. c. All earth, materials, sidewalks, driveway approaches, paving, crossings, utilities, public improvements, or improvements of any kind injured or removed by the Licensee in its activities under this License Agreement shall be fully repaired or replaced promptly by the Licensee at their expense and to the reasonable satisfaction of the City or owner thereof. d. All of the materials, plans, and construction of the porte cochere shall be approved by Building Official in accordance with the 2003 International Building Code (IBe). e. The Licensee shall keep and maintain accurate records and as-built drawings depicting accurate horizontal and vertical location of the Improvement as constructed or reconstructed in the Right-of-Way after the date hereof. f. Prior to construction of the proposed porte cochere in the Right-of-Way, the Licensee or their architect shall submit to the Building Official for approval, plans and specifications of the proposed installation. Such approval shall not be unreasonably withheld, delayed, or conditioned. g. The Licensee shall cooperate promptly and fully with the City and take all measures necessary to provide accurate and complete information regarding the nature and locations, both horizontal and vertical, of the Improvement located within the Right-of-Way when requested by the City or its authorized agents for a public project. Such location and identification shall be at the sole expense of the Licensee without expense to the City, its employees, agents or authorized contractors. The Licensee shall have a person familiar with the Improvement, who is responsible for timely satisfying information needs of the City and other users of the Right-of-Way. h. The Licensee shall promptly relocate or adjust the Improvement located in the Right-of-Way for any project planned or undertaken by the City or any governmental entity for construction, reconstruction, maintenance, or repair of public facilities or public improvements, or any other purpose of a public nature. Such relocation or adjustment shall -2- .. Book: 1145 Page: 782 be performed by the Licensee at its sole expense without expense to the City, its employees, agents or authorized contractors and shall be specifically subject to rules and regulations of the City not inconsistent with this License Agreement pertaining to such. i. It shall be the sole responsibility of the Licensee to take adequate measures to protect and defend the Improvement in the Right-of-Way from harm or damage. If the Licensee fail to accurately or timely locate the Improvement when requested, they will have no claim for costs or damages against the City and its authorized contractors or any other party authorized to be in the Right-of-Way unless such party is solely responsible for the harm or damage by its negligence or intentional conduct. j The Licensee shall notify the City not less than three (3) working days in advance of any construction, reconstruction, repair, or relocation of the Improvement which would require closure of the alley. The City shall follow its policies in the grant or denial of such street closure, which shall not be unreasonably delayed. In addition, all work performed in the traveled way or which in any way impacts vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected. Such signing shall be in conformance with the latest edition of the Federal Highway Administration's Standards and Guideline for Work Zone Traffic Control. k. All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance, and dismantling of the Improvement in the Right-of- Way shall be in accordance with applicable present and future federal, state, and City law and regulation, including but not limited to the most recent editions ofthe National Electrical Code, the National Electrical Safety Code and the Fiber Optic Line Installation Standard of the Telecommunications Industry Committee, or such substantive equivalents as may hereafter be adopted or promulgated. It is understood that the standards established in this paragraph are minimum standards and the requirements established or referenced in this ordinance may be additional to or stricter than such minimum standards. 3. Title. By granting this license the City does not warrant title to or the right to possess and occupy the Right-of-Way. In the event that it is determined that the City is not entitled to possess and utilize the Right-of-Way, this License Agreement shall terminate and the Licensee shall quit and surrender its use of the Improvement in the Right-of-Way in compliance with this License Agreement. 4. Breach of License Agreement. In the event that the Licensee uses the Improvement for any purpose other than that specifically authorized under this License Agreement, all rights granted hereunder to the Licensee shall immediately cease as if never granted and the Licensee shall immediately quit and surrender its use of the Improvement in the Right-of-Way. In the event that the Licensee shall fail to comply with any other substantial term, condition or covenant of this License Agreement within ten (10) days after written notice to do so has been mailed to it by the City, or in the event the Licensee abandons its authorized use of the Right-of-Way, any such event shall be deemed an immediate breach and forfeiture of the License Agreement which shall then terminate. Upon such termination of this license, the Licensee will quit and surrender their use and -3- . .. Book: 1145 Page: 783 dismantle the Improvement in the Right-of-Way in compliance with the terms of this License Agreement. 5. Term. The License shall commence upon execution of this License Agreement and shall continue until the earlier of: a. The Licensee's discontinuation of its authorized use of the Right-of-Way; b. Notification of the Licensee 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 90 days following such notice; or c. Termination of the License pursuant to paragraph 7 above. 6. Removal of Improvement. Upon termination of this License Agreement, the Licensee shall have the right to remove the Improvement within a reasonable time, not to exceed one hundred twenty (120) days. In the event the Licensee chooses to exercise the right to remove the Improvement, it shall within the permitted time period restore the Right-of-Way from which the Improvement is removed to as good a condition as existed prior to the removal. In the event the Licensee should exercise its right to remove the Improvement but fail to properly restore the Right- of-Way, the City shall have the right to cause the Right-of-Way to be restored and to charge any reasonable costs associated therewith to the Licensee. 7. Notices. Any notice to either party hereunder shall be sufficient if mailed by United States mail, postage prepaid, at the following addresses: City of Salina, Kansas c/o City Clerk P.O. Box 736 Salina, KS 67402-0736 St. John's Evangelical Lutheran Church 302 S. ih Street Salina, KS 67401 8. Invalidity in Part. If any clause, sentence, or paragraph of this License Agreement shall be held to be invalid, it shall not affect the validity of the remaining provisions of this License Agreement. 9. Binding Effect. This License Agreement shall be binding upon the parties, their heirs and assigns, and shall be binding upon and run with the Land described in Recital A. of this agreement. -4- "". . BDDk: 1145 Page: 784 EXECUTED the day and year first above stated. CITY OF SALINA, KANSAS By: Q-.:: Q V\.. Donnie D. Marrs, Mayor ATTEST: Li~~Ft;ik ST. JOHN'S EVANGELICAL LUTHERAN CHURCH By: ~" U~ on Vancil, Congregation Council President STATE OF KANSAS COUNTY OF SALINE, SS: On this ~day of February, 2007, before me a Notary Public in and for said state, personally appeared Donnie D. Marrs, Mayor of the City of Salina, Kansas and Lieu Ann Elsey, CMC, City Clerk for the City of Salina, Kansas, known to me to be the persons who executed the within License Agreement and acknowledged to me that they executed the same for the purposes therein stated on behalf of the City of Salina, Kansas. A. PENNY DAY ~ Notary Public - State of Kansas My Appt. Expires j ~~'q STATE OF KANSAS COUNTY OF SALINE, SS: On this I~day of February, 2007, before me a Notary Public in and for said state, personally appeared Don Vancil, Congregation Council President ofSt. John's Evangelical Lutheran Church, known to me to be the persons who executed the within License Agreement and acknowledged to me that they executed the same for the purposes therein stated. KIM FISHER .a. NOTARY PU8L1C STATE ~ I My ....ppl. upJ ~~~\ Notary Public -5- ST. JOHN'S LUTHERAN CHURCH EXIiIBIT A HDDk: 1145 Page: 785 Ir------- lOP=WIU. \\ FI(IDFI218.2(S) Ar..lnlel Fl(out)=12181(W) \\ L ~~r,:)I;f~2;O(E-W) MULBERRY STREET I .. I! ., .....'f ....:-':: ...1- :.... . ). . . ,: l- aw I ~. . (/) a I ~. a - w. ; '., ...... -+ PROPOSED PORTE-COCHERE "'~ ..~,. , }C6 ifJ/ Qm J-fXo - WldJo =1227.1 .20.4(N) ~ II II II -,,* '. . II II I~ IL I~ Ir I~ II If '.' , It o . IL . ;:, ". . .... Ii> . :" .:~ ~..: 1 '. .' I II I II II II II II " ..' II . :', II I II II II . II ~ ..: II ..' 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