Cable in ROW
RESTATED LICENSE AGREEMENT
This License Agreement made this ~ day of June, 1998, by and between the CITY OF
SALINA, KANSAS, a municipal corporation (referred to as "the City") and MOWERY CLINIC,
L.L.C., (referred to as "the Licensee").
RECITALS
A. The City and the Licensee entered into a License Agreement dated January 9, 1997,
authorizing Licensee to locate underground cabling in a portion of the public right-of-way to allow
for data transmission and electronic communication between the Mowery Clinic Building at 737 East
Crawford Street and the Mowery West Building at 671 Elmore Drive.
B. The Licensee has infonned the City of its desire to also install underground cabling
for data transmission and electronic communication connecting the Mowery Clinic Building and the
Mowery West Building with its business office located in the building at 655 East Crawford Street.
C. 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 tenns and conditions outlined below.
E. The City and the Licensee wish to restate their License Agreement.
THE PARTIES THEREFORE AGREE:
1. Grant. The City hereby grants a license (the "License") to the Licensee to install and
maintain underground cabling connecting the Mowery Clinic Building, the Mowery West Building,
and its business office located in the building at 655 East Crawford Street (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-or-Way. In the use of the Right-of-Way under this Restated 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 Restated 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.
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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 Restated License Agreement pertaining to such.
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
Restated 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
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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.
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 Restated 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 Restated License
Agreement.
6. Corp of Engineer Approvals. Any permission granted pursuant to this Restated
License Agreement to install the Cable shall be subject to and conditional upon approval by the Corp
of Engineers where applicable.
7. Breach of Restated Ucense Agreement. In the event that the Licensee uses the
Cable for any purpose other than that specifically authorized under this Restated 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
Restated 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 fOIfeiture of the Restated 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 Restated
License Agreement.
8. Term. The License shall commence upon execution of this Restated 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 Restated 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
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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:
City of Salina, Kansas
c/o City Clerk
P.O. Box 380
Salina, KS 67402-0380
Mowery Clinic, L.L.C.
P.O. Box 260
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 Restated License
Agreement shall be held to be invalid, it shall not affect the validity of the remaining provisions of
this Restated License Agreement.
13. Termination of Prior License Agreement The License Agreement between the
parties dated January 9, 1997 shall be terminated upon the execution of this Restated License
Agreement.
14. Binding Effect. This Restated 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
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ATTEST:
~A~~ra H
:Judy Lo ity Clerk
MOWERY CLINIC, L.L.C.
B0,J/rjdk~
Darrell E. Wilson, Administrator
STATE OF KANSAS COUNTY OF SALINE, SS:
On this / .5'/ day of June, 1998, before me a Notary Public in and for said state, personally
appeared Peter F. Brungardt, 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 Restated License
Agreement and acknowledged to me that they executed the same for the purposes therein stated on
behalf of the City of Salina, Kansas.
4~?~
o . Notary Public
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STATE OF KANSAS COUNTY OF SALINE, SS:
On this 9 W day of June, 1998, before me a Notary Public in and for said state, personally
appeared Darrell E. Wilson, Administrator of Mowery Clinic, L.L.C., known to me to be the person
who executed the within Restated License Agreement and acknowledged to me that he executed the
same for the purposes therein stated on behalf of the limited liability company.
.;. NOTARY PUBLIC - State of Kansas
BARBARA J. LLEN
- - My Appt Exp.
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Notary Public
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