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Cable in ROW liCENSE AGREEMENT This License Agreement made this...ll.Eh day of Octnhpr, 1994, by and between the CITY OF SAUNA, KANSAS, a municipal corporation (hereinafter referred to as "the City") and TONY'S PIZZA SERVICE, a division of Schwan's Sales Enterprises, Inc. (hereinafter referred to as "Tony's"). RECITALS A. Tony's wishes to utilize an underground fiber optic cable for data transmIssIOn between its facilities located at the Salina Airport Industrial Center, Salina, Kansas. B. The most efficient means of laying such underground fiber optic cable is to follow and/or traverse the public right-of-way for Schilling Road and Centennial Road. C. The City has found that the granting of a license to Tony's to install such an underground cable in the public right-of-way shall 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 Tony's to install such underground cable, subject to the terms and conditions outlined below. THE PARTIES THEREFORE AGREE: 1. Grant. The City hereby grants a license (the "License")to Tony's to install and maintain a single underground fiber optic cable (the "Cable") in the public right-of-way described in Attachment A (the "Right-of-Way"), for the limited purpose of transporting official company data. 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 Tony's 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, Tony's 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, Tony's 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. Tony'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. Tony's 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 Tony's in its activities under this License Agreement shall be fully repaired or replaced promptly by Tony's 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. Tony's 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 . 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, Tony's 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. Tony's 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 Tony's without expense to the City, its employees, agents or authorized contractors. Tony's 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. Tony's 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 Tony's at its sole expense without expense to the City, its employees, agents or authorized contractors and shall be specifically subject -2- - to rules and regulations of the City not inconsistent with this License Agreement pertaining to such. h. It shall be the sole responsibility of Tony's to take adequate measures to protect and defend the Cable in the Right-of-Way from harm or damage. If Tony's 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. Tony's 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. Tony's 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 Tony's, its agents, contractors or employees pursuant to this License Agreement. 4. General Liability Insurance. Tony's 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 -3- - 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. Tony's 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 Tony's 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 Tony's uses the Cable for any purpose other than that specifically authorized under this License Agreement, all rights granted hereunder to Tony's shall immediately cease as if never granted and Tony's shall immediately quit and surrender its use of the Cable in the Right-of-Way. In the event that Tony's 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 Tony's 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, Tony's 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. Tony's discontinuation of its authorized use of the Right-of-Way; b. Notification of Tony's 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, Tony's shall have the right to remove the Cable within a reasonable time, not to exceed one hundred twenty (120) days. In the event Tony's 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 Tony's should exercise its right to remove the Cable but fail to properly restore the Right-of-Way, the City -4- - . shall have the right to cause the Right-of-Way to be restored and to charge any reasonable costs associated therewith to Tony's. 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 Tony's Pizza Service 3019 Scanlan Salina, KS 67402 11. Assignment of License. Tony's 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 ATTEST: ~~~ seph amer, Mayor TONY'S PIZZA SERVICE -~ by duJ _~,~ Bruce Puls,f..s: f11 Ci--eUI -Ie-\.. , -5- STATE OF KANSAS COUNTY OF SALINE, SS: On this t.jt:L day of l'ct:t-k>\-, 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. 'J -'. -"._~'J -~~ -=-d(~" /111 ;4'0 No bItc STATE OF KANSAS COUNTY OF SALINE, SS: On this II day of (/r+ , 1994, before me a Notary Public in and for said state, personally appeared Bruce PuIs, J5 11;19n/,,!?,,-"- of Tony's Pizza Service, 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. DOROTHY DOERING ~ . St te of Kansas ... Notary Public - a . "''' ;'. My Appt Exptres ". . (.., , ..., j NS~'~tnfJ .hM<07 -6- Exhibit A Data Processing Computer Bldg. 40' 40' ..... "1 8CH.I..tn: ~ fI). 1 .., -Coimincation C8ble- 250' ~.J 36' .lUl:R in in ,., fI). ~ ,., ~ 40' 40' 12..... ; Paul Schwan Tech. Bldg. 50' 50' b I() b I() 682'