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Cable in ROW LICENSE AGREEMENT This License Agreement made this tqAi day of October, 1991, by and between the CITY OP SALINA, KANSAS, a municipal corporation (hereinafter referred to as "the Ci ty") and KIN NETWORK, INC. (hereinafter referred to as "KIN"). RECITALS A. KIN wishes to utilize an underground fiber optic cable running from the city limits of the city to its place of business at 621 Westport Boulevard, Salina, KS 67401. B. The most efficient means of laying such underground fiber optic cable is to follow the public right-of-way from the south boundary of the city limits north to KIN's place of business. C. The City has found that the granting of a license to KIN to install such an underground cable in the public right-of-way shall not interfere with use of the right-of-way by the City or its franchisees. D. The City has found it to be in the public interest to grant a license to KIN to install such underground cable, subject to the terms and conditions outlined below. THE PARTIES THEREPORE AGREE: 1. Grant. The City hereby grants a license to KIN to install and maintain a single underground fiber optic cable (hereinafter referred to as "the cable") in the public right-of-way described in Attachment A, for the limited purpose of transporting company official traffic and remote testing of company equipment. The cable to be installed pursuant to this grant of license is not for the provision of any service to any member of the public on a common carrier or contract basis, or any other basis to any customer, and does not authorize KIN to provide cable service either as a cable operator or through carriage arrangements with any other entity. 2. Use of Right-of-way. In the use of right-of-way under this License Agreement, KIN shall be subject to all rules, regulations, policies, resolutions and ordinances now or hereafter adopted or promulgated by the City and is subject to all applicable laws, orders, rules and regulations adopted by governmental bodies now or hereafter having jurisdiction. In addition, KIN 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, sidewalk and pavement cuts, utility location, construction coordination, beautification and other " requirements on the use of the right-of-way and shall comply with the following: a. KIN's use of right-of-way shall in all matters be subordinate to the City's use of the right-of-way for any public purpose. KIN shall coordinate the placement of the cable in a manner which minimizes adverse impact on public improvements, as reasonably determined by the City. Where placement is not otherwise regulated, the cable 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, paving, crossings, utilities, public improvements or improvements of any kind injured or removed by KIN in its activities under this License Agreement shall be fully repaired or replaced promptly by KIN at its sole expense and to the reasonable satisfaction of the City or owner thereof. c. All of the materials, plans and installation of the cable shall be approved by or as directed by the City Engineer. d. KIN shall keep and maintain accurate records and as- built drawings depicting accurate horizontal and vertical location of the cable as constructed, reconstructed, or relocated in the right-of-way after the date hereof. All points of the cable shall be horizontally located from street centerline, or section or quarter section lines or corners. vertical locations or 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 facilities in the right-of-way, KIN shall submit to the City Engineer for approval plans and specifications of the proposed installation. Such approval shall not be unreasonably withheld, delayed or conditioned. f. KIN 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 cable located within 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 KIN without expense to the City, its employees, agents or authorized contractors. KIN shall have a person familiar with the facilities, who is responsible for timely satisfying information needs of the city and other users of the right-of-way. -2- g. KIN shall promptly relocate or adjust the cable located in right-of-way for any project planned or undertaken by the City of 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 be performed by KIN at its sole expense without expense to the ci ty , 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. h. It shall be the sole responsibility of KIN to take adequate measures to protect and defend the cable in the right-of-way from harm or damage. If KIN fails to accurately or timely locate the cable when requested, it 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. i. KIN shall notify the City not less than three (3) working days in advance of any construction, reconstruction, repair or relocation of the cable 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. 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 I 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 cable 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 of the National Electrical Code, the National Electrical Safety Code and the Fiber Optic Cable 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. Xndemnirication and Hold Harmless. KIN shall indemnify and hold and save the City, its officers, employees, agents, and authorized contractors, harmless from any loss, cost or damage, -3- including attorneys fees, that may arise from the installation, use or maintenance of the cable in the public right-of-way by KIN, its agents, contractors or employees pursuant to this License Agreement. 4. General Liability Insurance. KIN agrees to procure and maintain public liability insurance covering its use and operations on the public right-of-way, with limits of not less than the maximum liability for claims which could be asserted against the City for any number of claims arising out of a single occurrence or accident under the Kansas Tort Claims Act, as it now exists or may hereafter be amended, and will from time to time increase its limits in such amount as may be necessary to at all times during the term of this license maintain such limits at the then maximum liability for such claims under the Kansas Tort Claims Act. The policy shall provide that such insurance may not be canceled by issuer thereof without at least thirty (30) days' written notice to the ci ty . KIN shall deliver to the ci ty evidence of such insurance. 5. Term. This license shall be for a term of three (3) years from the date of this License Agreement, subject to any terms of this License Agreement which may provide for earlier termination. 6. 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 KIN shall quit and surrender its use of the cable in the right-of-way in compliance with this License Agreement. 7. Corp of Enqineer Approvals. Any permission granted pursuant to this License Agreement to install the cable shall be subject to and conditional upon approval by the Corp of Engineers where applicable. 8. Pranchise. The parties specifically agree that a franchise must be obtained before the company can utilize the cable for any activities other than those specifically authorized by this License Agreement. KIN agrees to give at least six (6) months written notice to the City in the event it anticipates utilizing the cable for any purpose other than those specifically authorized in this License Agreement. The six (6) month period shall be for the purpose of allowing the City and KIN to negotiate a franchise for such use of the public right-of-way. In the event a franchise cannot be negotiated and lawfully enacted within the allotted six (6) month period, KIN shall either continue use of the cable only for the purposes specifically authorized under this License Agreement or this License Agreement shall be terminated and KIN shall quit and surrender the use of the cable in the public right- Of-way in compliance with this License Agreement. -4- 9. compensation. KIN agrees to pay to the City as compensation for permission to use the right-of-way pursuant to this License Agreement the initial sum of Five Hundred Dollars ($500.00), plus an annual sum thereafter of One Hundred Dollars ($100.00) per year. The initial paYment shall be due upon execution of this License Agreement and the subsequent annual paYments shall be due on the anniversary date each year thereafter. 10. Breech of License Aqreement. In the event that KIN uses the cable for any purpose other than that specifically authorized under this License Agreement, all rights granted hereunder to KIN shall immediately cease as if never granted and KIN shall immediately quit and surrender its use of the cable in the public right-of-way. In the event that KIN 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 KIN abandons its authorized use of the public right-of-way for the end of the term, any such events shall be deemed an immediate breech and forfeiture of the License Agreement which shall then terminate. Upon such termination of this license, KIN will quit and surrender its use of the cable in the public right-of-way in compliance with the terms of this License Agreement. 11. Removal of Cable. Upon expiration of this License Agreement, whether by completion of its stated term, by agreement between the parties, or by forfeiture, KIN shall have the right to remove the cable wi thin a reasonable time, not to exceed one hundred twenty (120) days. In the event KIN chooses to exercise the right to remove the cable, it shall within the permitted time period restore the right-of-way from which the cable is removed to as good a condition as existed prior to the removal. In the event KIN should exercise its right to remove the cable 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 KIN. 12. 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 380 Salina, KS 67402-0380 KIN Network, Inc. P.O. Box 1607 Salina, KS 67402-1607 13. Assiqnment of License. KIN shall not assign this license or any interest therein without prior consent of the city. -5- 14. 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. 15. Bindinq Bffect. This License Agreement shall be binding upon the parties, their successors, or authorized assigns. BXBCUTED the day and year first above stated. CITY OF SALINA, KANSAS bYste~' Mayor ATTEST: -- sd~~ liulh::~y city Clerk KIN NETWORK, INC. bY~~~ Dennis L. Carlsen, Executive Vice President STATE OF KANSAS COUNTY OF SALINE, SS: . ~~ . On th1s I day of October, 1991, before me a Notary Pub11C in and for said state, personally appeared Stephen C. Ryan, Mayor of the City of Salina, Kansas and Stephanie Krug, Deputy 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. II.?I. qf f;9\ ~ c:B. Notary Public ~a+b STATE OF KANSAS COUNTY OF SALINE, SS: On this ~ day of October, 1991, before me a Notary Public in and for sa1d state, personally appeared Dennis L. Carlsen, -6- . . Executive Vice President of KIN Network, Inc., known to me to be the person who executed the within License Agreement and acknowledged to me that he executed the same for the purposes therein stated on behalf of the corporation. .TAIIY PUBlJ: . State at Kaasas It GARNETT ZAM80NI Mr. EIp. _1, 1182 ~~.-- , -' ~- Not ry pu l.C {/ -7- ... . . ... Attachment "A" North along Centennial Rd. from Water Well Rd. to Crawford St.; thence west along Crawford St. from Centennial Rd. to Graves Blvd; thence north along Graves Blvd. from Crawford St. to St. Louis St.; thence west along St. Louis St. from Graves Blvd. to 621 Westport Blvd.