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Unitility in ROW LICENSE AGREEMENT This License Agreement made this .l.:2.i:l day of December, 1994, by and between the CITY OF SALINA, KANSAS, a municipal corporation (hereinafter referred to as "the City") and DALE E. MATTISON AND TERRI I. MATTISON, husband and wife, (hereinafter referred to as "the Mattisons"). RECITALS A. The Mattisons wish to utilize an underground sanitary sewer pipeline between their residence at 1740 North 5th Street, and the existing public sanitary sewer system located on Stimmel Road, Salina, Kansas. B. The City has found that the granting of a license to the Mattisons to install such an underground pipeline in the public right-of-way shall not interfere with use of the public right-of- way by the City or its franchisees. C. The City has found it to be in the public interest to grant a license to the Mattisons to install such underground pipeline, subject to the terms and conditions outlined below. THE PARTIES THEREFORE AGREE: 1. Grant. The City hereby grants a license (the "License") to the Mattisons to install and maintain a single underground pipeline (the "Pipeline") in the public right-of-way described in Attachment A (the "Right-of-Way"), for the limited purpose of transporting domestic sewage. The Pipeline is not for the provision of any service to any member of the public on a contract basis, or any other basis to any customer, and the License does not authorize the Mattisons to provide sewer service either as a sewer operator or through arrangements with any other entity. 2. Use of Right-of-Way. In the use of the Right-of-Way under this License Agreement, the Mattisons 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, the Mattisons 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 ofthe public right-of-way and shall comply with the following: a. The Mattisons' use of the Right-of-Way shall in all matters be subordinate to the City's use of the Right-of-Way for any public purpose. The Mattisons shall coordinate the placement of the Pipeline in a manner which minimizes adverse impact on public improvements, as reasonably determined by the City. Where placement is not otherwise regulated, the Pipeline 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 the Mattisons in its activities under this License Agreement shall be fully repaired or replaced promptly by the Mattisons at their sole expense and to the reasonable satisfaction of the City or owner thereof. c. All ofthe materials, plans and installation of the Pipeline shall be approved by or as directed by the City Engineer. d. The Mattisons shall keep and maintain accurate records and as-built drawings depicting accurate horizontal and vertical location of the Pipeline as constructed, reconstructed, or relocated in the Right-of-Way after the date hereof. All points of the Pipeline shall be horizontally located from street centerline, or section or quarter section lines or comers. V erticallocations 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, the Mattisons 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. The Mattisons 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 Pipeline located 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 of the Mattisons without expense to the City, its employees, agents or authorized contractors. The Mattisons 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. g. The Mattisons shall promptly relocate or adjust the Pipeline located 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 relocation or adjustment shall be performed by the Mattisons at their sole expense without expense to the City, 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 ofthe Mattisons to take adequate measures to protect and defend the Pipeline in the Right-of-Way from harm or damage. If the Mattisons fail to accurately or timely locate the Pipeline when requested, they will have -2- 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. The Mattisons shall notify the City not less than three (3) working days in advance of any construction, reconstruction, repair or relocation of the Pipeline 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'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 Pipeline in the Right-of-Way shall be in accordance with applicable present and future federal, state and City law and regulation, 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. Indemnification and Hold Harmless. The Mattisons shall indemnify and hold and save the City, its officers, employees, agents, and authorized contractors, harmless from any loss, cost or damage, including attorneys fees, that may arise from the installation, use or maintenance of the Pipeline in the Right-of-Way by the Mattisons, their agents, contractors or employees pursuant to this License Agreement. 4. General Liability Insurance. The Mattisons agree to procure and maintain public liability insurance covering its use and operations on the 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 City. The Mattisons shall deliver to the City evidence of such Insurance. 5. 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 the -3- Mattisons shall quit and surrender its use of the Pipeline in the Right-of-Way in compliance with this License Agreement. 6. Corp of Engineer Approvals. Any permission granted pursuant to this License Agreement to install the Pipeline shall be subject to and conditional upon approval by the Corp of Engineers where applicable. 7. Breach of License Agreement. In the event that the Mattisons use the Pipeline for any purpose other than that specifically authorized under this License Agreement, all rights granted hereunder to the Mattisons shall immediately cease as if never granted and the Mattisons shall immediately quit and surrender its use of the Pipeline in the Right-of-Way. In the event that the Mattisons 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 the Mattisons abandon 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 Mattisons will quit and surrender their use of the Pipeline in the Right-of-Way in compliance with the terms of this License Agreement. 8. Term. The License shall commence upon execution of this License Agreement and shall continue until the earlier of: a. The Mattisons' discontinuation oftheir authorized use of the Right-of-Way; b. Notification of the Mattisons 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 7 above. 9. Removal of Pipeline. Upon termination of this License Agreement, the Mattisons shall have the right to remove the Pipeline within a reasonable time, not to exceed one hundred twenty (120) days. In the event the Mattisons choose to exercise the right to remove the Pipeline, they shall within the permitted time period restore the Right-of-Way from which the Pipeline is removed to as good a condition as existed prior to the removal. In the event the Mattisons should exercise their right to remove the Pipeline 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 the Mattisons. 10. Notices. Any notice to either party hereunder shall be sufficient if mailed by United States mail, postage prepaid, at the following addresses: -4- City of Salina, Kansas c/o City Clerk P.O. Box 380 Salina, KS 67402-0380 Dale E. and Terri I. Mattison 1740 North 5th Street Salina, KS 67401 11. Assignment of License. The Mattisons shall not assign this license or any interest therein without prior consent of the City. 12. 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. 13. Binding Effect. This License Agreement shall be binding upon the parties, their successors, or authorized assigns. EXECUTED the day and year first above stated. CITY OF SALINA, KANSAS By ~O %4#1L oseph . Warner, Mayor ATTEST: ~~!J. ~ u y Lo City Clerk . ...'j ,., c" , i/ ,,/ /':/. <. >../ c.- >-Z' c: Dale E. Mattison .<9'7 ~;:..-<..."- ./'/ .../:::-:R" C .. \J~ 2I:-.~i~-Y) Terri I. Mattison -5- STATE OF KANSAS COUNTY OF SALINE, SS: On this JJ t:I..- day of /J ~ L. , 1994, before me a Notary Public in and for said state, personally appeared Joseph A. Warner, Mayor of the City of Salina, Kansas and Judy D. Long, 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. .IIOTARY PUB.....".... STEPHANIE My .f.ppt. Exp. f 44 .~ ,Il)p flU _ otary Public My appointment expires: STATE OF KANSAS COUNTY OF SALINE, SS: On this,:)C'fu day of '~(':)"T.jW{' 1994, before me a Notary Public in and for said state, personally appeared Dale E. Mattison and Terri I. Mattison, husband and wife, 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. ~----,.__._-- JOLENE D, U\NTZ . NOTARY PUBliC ETI~IT! S,TATE 0, F KANSAS. My Appt Exp. . \ D .J. <.0 :< '( G ---_._...'"'-,.,.~"..,~ '"" . .. \------ ','" ,.., \(~ ^ \. ,-",,< (j "-. \ -- d( .' '';-....~ Not . Pubhc My appointment expire: -6-