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Groundwater Contamination License Agreement LICENSE AGREEMENT This License Agreement made thistl~ day of June, 2010, by and between the CITY OF SALINA, KANSAS, a municipal corporation (the "City") and Koch Agriculture Company (the "Licensee"). RECITALS A. WHEREAS, groundwater contamination in the City of Salina attributable to property located at 501 North Santa Fe Avenue is the subject of a Comprehensive Investigation and Remedial Action directed by the Kansas Department of Health and Environment; and B. WHEREAS, the Licensee is working with KDHE to remediate the groundwater contamination; and C. WHEREAS, the Licensee has informed the City of the need to install a groundwater extraction and treatment system consisting of treatment buildings, injection wells, extraction wells, storm water vaults and conveyance piping on City owned property and within the public right-of-way. D. WHEREAS, the City has determined that the granting of a license to the Licensee to install a groundwater extraction and treatment system on City owned property and within the public right- of-way as depicted on the attached and incorporated Exhibit A should not interfere with use of public land or right-of-way by the City or its franchisees; and E. WHEREAS, the City has determined that the public health and safety of the city's residents would be served by granting a license to the Licensee to install groundwater. extraction and treatment system on City owned property and the public right-of-way, subject to the terms and conditions outlined below. THE PARTIES THEREFORE AGREE: 1. Grant. The City hereby grants a license (the "License") to the Licensee and their contractor to install and maintain a groundwater extraction and treatment system consisting of treatment buildings, manholes, storm water vaults, extraction wells, treatment wells and conveyance piping (the "System") as generally depicted on Exhibit A for the limited purpose of extracting, conveying and treating contaminated groundwater and discharging treated groundwater, and other related purposes. The System is not for the provision of or distribution of water under any arrangement with any person or entity for any other purpose. 2. Use of Right-of-Wav. In the use of City property and 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 and their contractor shall be subject to all applicable rules, regulations, policies, resolutions, and ordinances now or, to the extent not excluded by grandfather provisions of such rules, regulations, policies, resolutions and ordinances, hereafter adopted or promulgated by the City relating to permits and fees, sidewalk and pavement cuts, utility location, construction coordination, beautification, and other requirements on the use of City property and the public right-of-way and shall comply with the following: a. The Licensee's use of City property and the Right-of-Way shall in all matters be subordinate to the City's use of the property and Right-of-Way for any public purpose. The Licensee and their contractor shall coordinate the placement of the System in a manner which minimizes adverse impact on public improvements, as reasonably determined by the City. Where placement is .not otherwise regulated, the System shall be placed with adequate clearance from such public improvements so as not to impact or be impacted by such public improvement. b. All earth, materials, sidewalks, driveway approaches, paving, crossings, utilities, public improvements, or improvements of any kind injured or removed by the Licensee or their contractor in their activities under this License. Agreement shall be fully repaired or replaced promptly by the Licensee or their contractor at their expense and to the reasonable satisfaction of the City or owner thereof. c. All of the materials, plans, and installation of the System shall be in accordance with work plans approved by the KDHE. Licensee shall provide the City all such work plans relating to the System. City reserves the right to request adjustments to the work plans approved by KDHE if City determines there are conflicts with the location of existing City Utilities. d. The Licensee or their contractor shall keep and maintain accurate records and as- built drawings depicting accurate horizontal and vertical location of the System as constructed or reconstructed in the Right-of-Way after the date hereof. All points of the System shall be horizontally located from street centerline, or section or quarter section lines or comers. Vertical locations of all points of facilities shall consist of elevations in either City datum or United States Geological Survey datum. e. Prior to construction, reconstruction, or relocation of any components of the System on City property or in the Right-of-Way, the Licensee or their contractor shall submit to the Director of Utilities for approval, plans and specifications of the proposed installation. Such approval shall not be unreasonably withheld, delayed, or conditioned. f. The Licensee shall cooperate promptly and fully with the City and take all measures necessary to provide accurate and complete information regarding the nature of locations, both horizontal and vertical of the System located on City property and 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 ofthe Licensee without expense to the City, its employees, agents or authorized contractors. The Licensee shall have a person familiar with the System, who is responsible for timely satisfying the information needs of the City and other users of the Right-of-Way. g. Upon request by the City, the Licensee shall make reasonable efforts to promptly relocate or adjust any components of the System located on City property and 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 request to relocate or adjust System components shall be -2- 1-- reasonable, taking into account the nature of the System components requested to be relocated or adjusted and the overall impact on Licensee's remedial action. Such relocation or adjustment shall be performed by the contractors and shall be specifically subject to rules and regulations of the City not inconsistent with the License Agreement pertaining to such. h. It shall be the sole responsibility of the Licensee to take reasonable measures to protect and defend the System both on City property and within the Right-of-Way from harm or damage. If the Licensee fails to accurately or timely locate the components of the System when requested, they will have no claim for costs or damages against the City and its authorized contractors or any 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. i. The Licensee or their contractor shall notify the City not less than three (3) working days in advance of any excavation, construction, reconstruction, repair, or relocation of the System which would require any street closure which reduces traffic flow to less than two (2) lanes of moving traffic. The City shall follow its policies in the grant or denial of such street closure, which shall not be unreasonably delayed or withheld. In addition, all work performed in the traveled way or which if 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. j. All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance, and dismantling of the System on City property and in the Right-of-Way shall be in accordance with applicable federal, state, and City law and regulation, including but not limited to the most recent editions of the Uniform Plumbing Code, National Electrical Code, the National Electrical Safety Code and the Fiber Optic Line Installation Standard of the Telecommunications Industry Committee, or such substantive equivalents. It is understood that the standards established in this paragraph are minimum standards and the requirements established or referenced in those codes 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 identified City property or Right-of-Way. In the event that it is determined by a court oflaw that the City is not entitled to possess and utilize the property or Right-of-Way, this License Agreement shall terminate as to the portion of the property and/or Right-of-Way which the City does not lawfully possess and the Licensee shall quit and surrender their use of the System on such property and / or in the Right-of-Way in compliance with this License Agreement. 4. Corps of Engineer Approvals. Any permission granted pursuant to this License Agreement to install the System shall be subject to and conditional upon approval by the Corps of Engineers where applicable. 5. Breach of License Agreement. In the event that the Licensee uses the System for any purpose other than that specifically authorized under this License Agreement, within ten (10) days after written notice has been given to Licensee to cease such unauthorized activity, and Licensee has not ceased or otherwise corrected such unauthorized use, all rights granted hereunder to the Licensee shall -3- immediately cease as to that portion of the property or Right-of-Way on which such unauthorized activity continues to exist and the Licensee shall immediately quit and surrender its use of the System on such City property and lor in the Right-of-Way. In the event that the Licensee or their contractor 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 them by the City, or in the event the Licensee abandons their 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 shall quit and surrender their use of the System on City property and I or in the Right-of-Way in compliance with the terms of this License Agreement. 6. 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 City property and the Right-of- Way as described in Paragraph 5; 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 5 above. 7. Removal of System. Upon termination of this License Agreement, the Licensee shall have the right, but not the obligation, to remove the System 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 System, Licensee or their contractor shall within the permitted time period restore the City property and the Right- of- Way from which the System is removed to as good a condition as existed prior to the removal, reasonable wear and tear excepted. In the event the Licensee or her contractor should exercise its right to remove the System but fail to properly restore the City property and I or the Right-of-Way as described in the preceding sentence, the City shall have the right to cause the City property and I or Right -of- Way to be so restored, and to charge any reasonable costs associated therewith to the Licensee. 8. Indemnification and Hold Harmless. During the term of License, the Licensee and its successors and assigns shall hold harmless and indemnify the City, its agents and employees, against all liability, loss damage, expense, and judgment, including attorney's fees so incurred, arising from or relating to its use of the public right-of-way pursuant to the License by the Licensee. In addition, such indemnity shall extend to any liability imputed to and incurred by the City resulting from the Licensee's failure to comply with all federal, state, county, and city laws, ordinances, and regulations relating to the operation of the System. Each party shall give immediate notice to the other of all such claims, actions or proceedings brought against the party giving such notice. The Licensee and its successors and assigns agrees to defend against all claims brought or actions filed against the City with respect to Licensee's use of the public right-of-way pursuant to the License, whether such claims are rightfully or wrongfully brought or filed. The City agrees that the Licensee and its successors and assigns may employee attorneys of their own selection to appear and defend the claim or action on behalf of the City, at the sole expense of the Licensee and its successors and assigns and shall have control of the defense in any such lawsuit and negotiations relating to its settlement. The City shall assist as reasonably requested by the Licensee and its successors and assigns regarding such lawsuit. -4- The Licensee and its successors and assigns agree to reimburse the City for all expenses, costs, and attorney's fees incurred by the City of Salina in the enforcement of any part of this agreement to indemnify the City. 9. 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 David A. Smith Reiss Remediation, LLC 4111 East 37th Street North Wichita, KS 67201-4034 10. Assignment of License. The assignment of any rights under this License Agreement by the Licensee and its successor and assigns shall be subject to the prior written consent ofthe City. 11. 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. - ' 12. Binding Effect. This License Agreement shall be binding upon the parties, their heirs and asSIgnS. -5- EXECUTED the day and year first above stated. CITY O~F SAL:A, ~71 By: Aaro . Peck, Mayor ATTEST: IBy: ' , Koch Agriculture Company STATE OF KANSAS COUNTY OF SALINE, SS: On this J4~day of June, 2010, before me a Notary Public in and for said state, personally appeared Aaron G. Peck, 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 Publi - S te f Kansas My Appt. Expires ~~~ ~ No Public STATE OF KANSAS COUNTY OF SEDGWICK, SS: On this .Jf day of June, 2010, before me a Notary Public in and for said state, personally appeared Randy Lair, President of Koch Agriculture Company known to me to be the person who executed the within License Agreement and acknowledged to me that they executed the same for the purposes therein stated on behalf of the Trust. -6- I . Cleanout @ Manhole . Injection VVeIl A. Recovery VVeIl - GW Conveyance Piping - - - Treated GW Discharge