ENCROACHMENT AGREEMENT

 

THIS ENCROACHMENT AGREEMENT (the “Agreement”) is made this _____ day of _____________ 2006 (the “Effective date”) by and between the City of Lawrence, Kansas, a municipal corporation (the “City”), and the Board of Education c/o Unified School District #497, (“School District”), owner of the property legally described as:

 

NEW JERSEY STREET LOTS 49 THROUGH 71 ODD INCL; ALSO NEW YORK STREET LOTS 72  THROUGH 92 EVEN INCL AND ALL OF VAC ALLEY ACCRUING THERETO VACATED ORD #1878, 4-8-35 (U00278-01 & 438-01 COMBINED 1989)

 

RECITALS

 

1.      The City is the holder of the Right-of-way along New York Street located in the

         City of Lawrence, Douglas County, Kansas.

 

2.      The School District is the owner of certain real estate (the “Property”), located at 936 New York Street, adjacent to and along the right-of-way, in the City of Lawrence, Kansas and legally described above.

 

3.      The City acknowledges that existing steps servicing the entrance to the New York Elementary School situated upon the above-described tract of real estate encroach upon the public right-of-way of New York Street.

 

4.      The School District wishes to install an ADA accessible ramp providing access to the elementary school entrance in the right-of-way at 936 New York Street, in Lawrence, Kansas to enhance the use, accessibility and enjoyment of the Property.  Accordingly, the School District has requested permission from the City to construct and maintain an ADA accessible ramp, retaining wall, and a decorative planter on a portion of the right-of-way and the City has agreed to authorize the encroachment, all in accordance with the terms and conditions of this Agreement.

 

5.      The City does not wish to vacate the right-of-way at this time. 

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein, the parties hereby agree as follows:

 

1.      The City shall allow the encroachment described herein and depicted in Exhibit A, attached hereto and incorporated herein by reference, to exist until such time as the City determines the public right-of-way is needed for a public project, improvement or use.   

 

2.      The City has made no representations with respect to the right-of-way or its condition, and the School District is not relying upon any representations of the City or the City’s agents with respect to the use or condition of the right-of-way. 

 

3.      The School District hereby covenants and warrants to the City, as follows:

 

    1. To maintain the steps, ramp, retaining wall, and decorative planter at the School District’s sole cost and expense for the duration of the Encroachment Agreement.
    2. To move the steps, ramp, retaining wall, and/or planter upon the City’s request if the City determines the improvements need to be moved for the installation, repair, maintenance, or expansion of any street or utilities located, or to be located in, on, under or through the right-of-way.  The School District shall bear all costs associated with moving the steps, ramp, retaining wall, and/or planter, and the School District hereby agrees the City shall have no duty whatsoever to replace the steps, ramp, retaining wall, and/or planter.  The School District may replace them, at its sole cost and expense, to their former location except as otherwise provided by this Agreement.
    3. To comply with all applicable laws and ordinances, including land use requirements of the City of Lawrence and the County of Douglas, Kansas. 
    4. To refrain from causing any waste, damage, or injury to the right-of-way.
    5. The School District shall not have any right to enlarge the present scope of this Agreement without the prior written consent of the City.
    6. 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 School District’s use, occupancy or maintenance of the improvements in the right-of-way, or any portion thereof on the right-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.

 

4.         The School District hereby acknowledges the City’s right to the right-of-way, and agrees to never assail, resist, or deny such rights by virtue of the School District’s occupancy or use under this Agreement.

 

5.         The City reserves the right to terminate this Agreement at any time and for any reason by giving the School District at least 30 days written notice of such termination, except that the City may, at the City’s election, terminate immediately without such notice at any times, if (i) the School District fails to comply with or abide by each and all of the provisions of this Agreement, or (ii) if the continued encroachment of the right-of-way presents a health or safety hazard.

 

6.         This Agreement shall, at all times, be binding upon the City and the School District 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.

 

7.         This Agreement shall be construed and enforced in accordance with, and governed by, the law of the State of Kansas.

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the Effective Date.

 

BOARD OF EDUCATION

UNIFIED SCHOOL DISTRICT #497: 

 

 

BY: _______________________________

(Print Name and 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 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:                                                                                                                                        

                                                                        Notary Public

 

CITY OF LAWRENCE, KANSAS a

municipal corporation

 

 

_________________________________

David L. Corliss, 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, Interim City Manager, 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:                                                                                                                                        

                                                                        Notary Public