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License & Maintenance Agr .' LICENSE AND MAINTENANCE AGREEMENT This License and Maintenance Agreement is entered into this ~~y of May, 2005, by and between the CITY OF SALINA, KANSAS (the "City") and JOHNSON SAND CO. ("Johnson Sand"). Recitals A. Johnson Sand currently owns and conducts a surface mining operation in Saline County, specifically located north of East Schilling Road, east of Ohio Street, and west of the City's flood control levee. B. Johnson Sand desires to expand its surface mining operation to a tract of real estate lying east of the City's flood control levee, including portions of the following described real estate: The Northwest Qmllier (NW/4) of Section Five (5), Township Fifteen (15) South, Range Two (2) West ofthe 6th P. M.; and The Southwest Quarter (SW/4) of Section ThÎíiy-two (32), Township Fourteen (14) South, Range Two (2) West ofthe 6th P. M.; thus requiring ingress and egress to the expanded mining operation by heavy truck traffic via the Schilling Road crossing of the flood control levee (the "Schilling Road Levee Crossing"). C. The Saline County Planning Commission granted the Conditional Use Pennit necessary to allow Johnson Sand to expand its surface mining operation until March 16, 2017, subject to a number of conditions (the "Conditional Use Permit") as set forth in a letter from Saline County Planning and Zoning Director Vicki R. Koepsel to Gary and Pam Johnson dated March 23, 2005 (the "CUP Letter"), including, among others, the requirements that Johnson Sand: (1) Physically widen and improve the Schilling Road Levee Crossing to a public road standard to allow for two-way traffic and heavy truck traflìc, based upon a design approved by the City engineer; (2) Enter into an ingress-egress easement across the Schilling Road Levee Crossing (this License Agreement); (3) Participate in costs related to any upgrading of Schilling Road, including the actual access over the dike and dust control on Schilling Road and any gate system to prevent unauthorized access to the levee; and (4) Limit hours of operation to 7:00 a.m. to 5:00 p.m., Monday through Friday, and 7:00 a.m. to 12:00 p.m. on Saturday (the "Hours of Operation"). D. The City's flood control levee is administered by the United States Army Corps of Engineers (the "Corps of Engineers") and maintained by the City. Johnson Sand has obtained written confirmation that the Corps of Engineers does not object to the proposed modification and use ofthe Schilling Road Levee Crossing E. The City's Engineering Division has concluded that allowing Johnson to access its expanded surface mining operation with heavy truck traffic via the Schilling Road Levee Crossing, subject to strict compliance with the terms and conditions of this License Agreement, should not adversely impact the integrity ofthe flood control levee system. THE PARTIES THEREFORE AGREE: 1. Grant of License. The City grants a license to Johnson Sand to access its expanded surface mining operation with heavy truck traffic over the Schilling Road Levee Crossing (the "License"), subject to the following conditions: A. Johnson Sand shall cause the Schilling Road Levee Crossing to be physically widened and improved to a public road standard to allow for two-way traffic and heavy truck traffic (the "Crossing hnprovements"). B. In order to protect the integrity of the flood control levee, the Crossing Improvements shall include the concrete paving of the Schilling Road Levee Crossing. The concrete paving shall meet City standards for installation of concrete paving in the public right-of-way. Johnson Sand shall be responsible for maintaining the concrete paving. C. Plans for the Crossing hnprovements shall be prepared and stamped by Johnson Sand's Kansas-licensed civil engineer, and shall be subject to approval by the City Engineer (the "Approved Plans"). Construction of the Crossing Improvements shall be subject to inspection by the City. The Crossing hnprovements shall be subject to final inspection and approval by the City Engineer prior to use of the Schilling Road Levee Crossing by Johnson Sand pursuant to this License Agreement. D. Johnson Sand shall utilize the Schil1ing Road Levee Crossing only during the Hours of Operation prescribed by Saline County. E. Prior to commencement of construction of the Crossing Improvements Johnson Sand shall obtain and shall provide to the City Engineer written authorization by Saline County for commencement of construction of the Crossing Improvements based upon submission of the Approved Plans and this License and Maintenance Agreement to the Saline County Planning Department as required by the CUP Letter. 2. Term of License. The License shall commence upon fulfillment of conditions (a) through (c) set forth in Paragraph 1 above and shall continue until the earliest of: -2- '. A. March 16,2017 (the date the current Saline County Conditional Use Permit is set to expire), except as otherwise provided in Paragraph 3 below in the event of any number of extensions ofthe Saline County Conditional Use Permit; B. Discontinuation of use of the Schilling Road Levee Crossing by Johnson Sand for the purpose of accessing its expanded surface mining operation; C. Termination, cancellation, or suspension ofthe Levee Permit for any reason; D. Termination, cancellation, or suspension of the Saline County Conditional Use Permit for any reason; E. Failure of Johnson Sand to make City inspected and approved repairs to the concrete paving required under Paragraph 1 (b) above following 60 days written notice from the City ofthe need to make specified repairs; or F. Notification of Johnson Sand by the City that the public interest is best served by the use of the Schilling Road Levee Crossing in a manner in conflict with the License, and that the License shall terminate no less than 180 days following such notice. 3. Extension of Saline County Conditional Use Permit. In the event of consideration by Saline County of any number of possible extensions of the Conditional Use Permit beyond March 16, 2017, the City may make such additional requirements for extension of the License as may serve the public interest, particularly with regard to assuring Johnson Sand's proper maintenance or repair ofthe concrete paving over the Schilling Road Levee Crossing. 4. Release. Indemnification and Hold Harmless. During the term of the License, Johnson Sand shall release, hold harmless, and indemnify the City, its agents and employees, against all liability, loss, damage, expense, and judgment, including attorneys' fees so incurred, arising from or relating to its use of the Schilling Road Levee Crossing pursuant to the License. In addition, such indemnity shall extend to any liability imputed to the City resulting from Johnson Sand's failure to comply with all federal, state, county, and city laws, ordinances, and regulations relating to the Schilling Road Levee Crossing and the City's flood control levee. Each party shall give immediate notice to the other of all such claims, actions, or proceedings brought against the party giving such notice. Johnson Sand agrees to defend against all claims brought or actions filed against the City with respect to Johnson Sand's use of the Schilling Road Levee Crossing pursuant to the License, whether such claims are rightfully or wrongfully brought or filed. The City agrees that Johnson Sand may employ attorneys of its own selection to appear and defend the claim or action on behalf of the City, at the sole expense of Johnson Sand. Johnson Sand shall have control of the defense in any such lawsuit and negotiations relating to its settlement. The City shall assist Johnson Sand as reasonably requested by Johnson Sand regarding such lawsuit. Johnson Sand agrees to reimburse the City for all expenses, costs, and attorneys' fees incurred by the City in the enforcement of any part of Johnson Sand's agreement to indemnify the City. -3- , . 5. Notices. Any notice to either party 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 Johnson Sand Co. Attn.: Gary Johnson 1601 East Schilling Road Salina, KS 67401 6. Assignment of License. The assignment of any rights under this License Agreement by Johnson Sand shall be subject to the prior written consent ofthe City. 7. Binding Effect. This License Agreement shall be binding upon the parties, their successors and authorized assigns. Executed the day and year first above written. ~:lL Lieu Ann Elsey, ~ CMC CITY OF SALINA, KANSAS By: jjJ~ p ~ Deborah P. Divine, Mayor By: STATE OF KANSAS, SALINE COUNTY, ss: On this ~~ J day of May, 2005, before me, the undersigned, a notary public in and for the county and state aforesaid, came Deborah P. Divine, Mayor of the City of Salina, Kansas, and Lieu Ann Elsey, 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, -4- . . ," and such persons duly acknowledged the execution of the same to be the act and deed of said City. ~ ~ -"'~':"'~K~~' ~~ - -- My Appr. Explrea .s- -//-",- STATE OF KANSAS, COUNTY OF SALINE, SS: On this6b~day of~2005, before me a Notary Public in and for said state, personally appeared Gary Johnson, President, known to me to be the person who executed the within License Agreement on behalf of Johnson Sand Co. and acknowledged to me that he executed the same for the purposes therein stated. VJ~ ~L) Notary Public My appointment expires: ~ Notary Public - State of Kansas PAM JOHNSON My Appointment Expires I-3D--£) 8 I , .. -5-