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Build in ROW LICENSE AGREEMENT This License Agreement made this ./ / ~, day of January, 1997, by and between the CITY OF SALINA, KANSAS, a municipal corporation (referred to as lithe City") and MOWERY CLINIC, L.L.C., (referred to as lithe Licensee"). RECITALS A. The Licensee wishes to utilize underground cabling which will allow for data transmission and electronic communication between the Mowery Clinic Building at 737 East Crawford and the Mowery West Building at 671 Elmore Drive. B. The City has found that the granting of a license to the Licensee to install such underground cabling in the public right-of-way as shown on Attachment A will not interfere with use of the public 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 the Licensee to install such underground cabling, 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 to install and maintain underground cabling between the Mowery Clinic Building and its Mowery West Building (the "Cable") in the public right-of-way along the route shown on Attachment A (the "Right-of- Way "), for the limited purposes of: a. connecting the Licensee's telephone systems; and b. connecting the Licensee's computer systems. The Cable 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 the License does not authorize the Licensee 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 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 is subject to all applicable laws, orders, rules, and regulations adopted by governmental bodies now or hereafter having jurisdiction. In addition, the Licensee 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 public right-of-way and shall comply with the following: a. The Licensee's 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 Licensee 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 the Licensee in its activities under this License Agreement shall be fully repaired or replaced promptly by the Licensee at its 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. The Licensee 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 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 Licensee 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 Licensee 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 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 Licensee without expense to the City, its employees, agents or authorized contractors. The Licensee 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 Licensee shall promptly relocate or adjust the Cable 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 Licensee at its 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. -2- h. It shall be the sole responsibility of the Licensee to take adequate measures to protect and defend the Cable in the Right-of-Way from harm or damage. If the Licensee 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. The Licensee 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'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. Indemnification and Hold Harmless. The Licensee 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 Cable in the Right-of-Way by the Licensee, its agents, contractors, or employees pursuant to this License Agreement. 4. General Liability Insurance. The Licensee agrees 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 Licensee shall deliver to the City evidence of such insurance. -3- 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 Licensee shall quit and surrender its use of the Cable 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 Cable 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 Licensee uses the Cable for any purpose other than that specifically authorized under this License Agreement, all rights granted hereunder to the Licensee shall immediately cease as if never granted and the Licensee shall immediately quit and surrender its use of the Cable in the Right-of-Way. In the event that the Licensee 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 its 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 will quit and surrender its use of the Cable 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 Licensee's discontinuation of its authorized use of the Right-of-Way; 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 7 above. 9. Removal of Cable. Upon termination of this License Agreement, the Licensee shall have the right to remove the Cable 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 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 the Licensee 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 the Licensee. 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 Mowery Clinic, L.L.C. P.O. Box 0260 Salina, KS 67401-0260 11. Assignment of License. The Licensee 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, its successors, or authorized assigns. EXECUTED the day and year first above stated. CITY OF SALINA, KANSAS By C~~i:~ ATTEST: , ~> ~~:>i J~6iCI~ ~ MOWERY CLINIC, L.L.C. by ';/ Ann M. Siemers, Administrator STATE OF KANSAS COUNTY OF SALINE, SS: On this ~ -I:::J-I. day of January, 1997, before me a Notary Public in and for said state, personally appeared Evelyn Maxwell, 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 -5- Agreement and acknowledged to me that they executed the same for the purposes therein stated on behalf of the City of Salina, Kansas. .IOTMY PUBlIC.....".... PENNY L ~ ^,., My Appt. Exp, ~ t? ~ff1:1. /llb- t1 Notary Public STATE OF KANSAS COUNTY OF SALINE, SS: On this ~ day of January, 1997, before me a Notary Public in and for said state, personally appeared Ann M. Siemers, Administrator of Mowery Clinic, L.L.c., known to me to be the person who executed the within License Agreement and acknowledged to me that she executed the same for the purposes therein stated on behalf of the limited liability company. .' . H01. .~RY PUBLIC - State of Ka. nsas BAR BAR" ~;J)-~EJ - .. ft.; A~pt Exp. .3 . 'q (-=-=~Cl l f).d~.c~') f-t.(lppp /( ) Notary Public -6-