THIS ENCROACHMENT AGREEMENT (The “Agreement”) is entered into this day of , 2006, by and between the City of Lawrence, Kansas, a municipal corporation, hereinafter referred to as “the City” and the Lawrence Community Nursery School of 645 Alabama Street, Lawrence, Kansas, the owner of the following described tract of real estate situated in Douglas County, Kansas, to wit:
LOT 1, BLOCK 2 LANE PLACE
RECITALS
1. The City is the holder of the Seventh Street and Alabama Street Rights-of-Way located in the City of Lawrence, Douglas County, Kansas.
2. The Lawrence Community Nursery School is the owner of certain real estate (the “Property”), located adjacent to and along the Seventh Street and Alabama Street Rights-of-Way, in the City of Lawrence, Douglas County, Kansas and legally described above.
3. The Lawrence Community Nursery School wishes to continue the existing encroachment of a chain link fence, playground equipment, and recreation or playground area in a portion of the Seventh Street right-of-way, and a stone retaining wall and stone steps in a portion of the Alabama Street right-of-way. The Lawrence Community Nursery School wishes to alter the grade and construct a stone retaining wall in a portion of the Seventh Street right-of-way. Accordingly, the Lawrence Community Nursery School has requested permission from the City to maintain and construct the improvements and playground equipment in the Rights-of-Way as described above, and the City has agreed to provide an encroachment agreement to the Lawrence Community Nursery School for such purposes, all in accordance with the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein, the parties hereby agree as follows:
1. Acknowledgement of Encroachment. The City hereby grants the Lawrence Community Nursery School the non-exclusive license, right, privilege, and permission to use in common with others that portion of the Seventh Street Right-of-Way on which the fence, playground equipment, and play or recreation area are currently located, for the purpose of maintaining the use of said fence, playground equipment, and play area. The City further grants the Lawrence Community Nursery School the non-exclusive license, right, privilege, and permission to use in common with others that portion of the Seventh Street Right-of-Way as noted in Attachment 1 to grade and construct a stone retaining wall in accordance with the attached plans (Attachment 1). The City further grants the Lawrence Community Nursery School the non-exclusive license, right, privilege, and permission to use in common with others that portion of the Alabama Street Right-of-Way as noted in Attachment 1 on which the existing stone steps and stone retaining wall are located, for the purpose of using said stone steps and retaining wall.
2. No Representation by the City. The Lawrence Community Nursery School represents that the City has made no representations with respect to the Seventh Street or Alabama Street Rights-of-Way or their condition, and that the Lawrence Community Nursery School is not relying on any representations of the City or the City’s agents with respect to the use or condition of the rights-of-way. This Agreement grants the Lawrence Community Nursery School the privilege and permission to use the Seventh Street and Alabama Street Rights-of-Way in their present condition “as is” without any warranties.
3. Covenants of the Lawrence Community Nursery School. The Lawrence Community Nursery School hereby covenants and warrants to the City as follows:
a. To maintain the fence, playground equipment, and playground or recreation area, the existing stone retaining wall and steps, and the stone retaining wall planned for construction in accordance with the plans in Attachment 1 at the Lawrence Community Nursery School’s sole cost and expense and to remove all debris and other items not specifically mentioned herein placed in the rights-of-way by the Lawrence Community Nursery School, or as a result of its use of the rights-of-way.
b. If the fence, playground equipment, stone retaining walls or stone steps need to be moved for the installation, repair, or maintenance of any utilities or for any street improvement or other lawful purposes, located or to be located in, on, under or through the rights-of-way, the Lawrence Community Nursery School shall, at its sole cost and expense, move the improvements and/or equipment from the rights-of-way. The City shall have no duty to replace the equipment or improvements. The City shall not pay damages or reimburse Lawrence Community Nursery School for the cost of removal or replacement of the equipment or improvements.
c. To comply with all applicable laws and ordinances, including land use requirements of the City of Lawrence, and the County of Douglas, Kansas.
d. To refrain from causing waste, damage, or injury to the rights-of-way.
e. The Lawrence Community Nursery School shall not have any right to enlarge the present scope of this Encroachment Agreement, without the prior written consent of the City.
4. Indemnification of the City. During the time this Agreement is in effect, the Lawrence Community Nursery School agrees to indemnify, defend, and save the City, and the City’s officers, commissioners, agents, employees, grantees, and assigns harmless from and against all claims, actions, liabilities, damages, costs, expenses, and judgments, including attorneys’ fees, which relate to, arise from, or are in connection with the Lawrence Community Nursery School’s use or occupancy of the rights-of-way, or any portion thereof or the maintenance of the fence, playground equipment, retaining walls or steps, on or in the rights-of-way on account of any injury to persons or damage to property, excluding therefrom such injury or damage caused by the negligence of the City.
5. Accommodation. The permission granted to the Lawrence Community Nursery School under this Agreement is given to the Lawrence Community Nursery School as an accommodation, and shall be without charge to the Lawrence Community Nursery School. The Lawrence Community Nursery School hereby acknowledges the City’s rights to the rights-of-way, and agrees to never assail, resist, or deny such rights by virtue of the Lawrence Community Nursery School’s occupancy or use under this Agreement.
6. Term and Termination. The City reserves the right to terminate the permission granted by this Agreement at any time and for any reason by giving the Lawrence Community Nursery School at least 30 days written notice of such termination, except that the City may, at the City’s election, terminate the permission immediately without such notice at any time, if (i) the Lawrence Community Nursery School fails to comply with or abide by each and all of the provisions of this Agreement; or (ii) if the continued use of the Agreement presents a health or safety hazard.
7. Binding Effect. This Agreement shall, at all times, be binding upon the City and the Lawrence Community Nursery School and all owners of the Property and all parties claiming by, through, or under them, shall run with the land, and shall be for the benefit of and limitations upon all future owners of the Property; provided, however, that the rights, duties, and obligations of each owner as set forth herein shall cease with the termination of his or its ownership of the Property, or portion thereof, except for the duties and obligations arising during the period of his or its ownership.
8. Governing Law. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of Kansas.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the Effective Date.
LAWRENCE COMMUNITY NURSERY SCHOOL
By:
(Print Name, Title)
STATE OF KANSAS )
COUNTY OF DOUGLAS )
BE IT REMEMBERED, that on this day of , 2006, before me, the undersigned, a Notary Public in and for the County and State aforesaid, came , who is personally known to me to be the same person who executed the within and foregoing instrument of writing on behalf of the Lawrence Community Nursery School, and duly acknowledged the execution of the same.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written.
CITY OF LAWRENCE, KANSAS
Interim City Manager
STATE OF KANSAS )
COUNTY OF DOUGLAS )
BE IT REMEMBERED, that on this day of , 2006, before me, the undersigned, a Notary Public in and for the County and State aforesaid, came David L. Corliss, who is personally known to me to be the same person who executed the within and foregoing instrument of writing, and duly acknowledged the execution of the same.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written.
Seal: