LICENSE AGREEMENT

 

THIS LICENSE AGREEMENT (the “License”) is made this _____ day of _____________ 2007 (the “Effective date”) by and between the City of Lawrence, Kansas, a municipal corporation (the “City”), and Lawrence Freenet, Inc., a nonprofit corporation, (“Licensee”).

           

RECITALS

 

  1. Whereas the City is the holder of the Right-of-way along Clinton Parkway from South Iowa Street to Kasold Drive, in Lawrence, Douglas County, Kansas; and

 

  1. Whereas the City owns and maintains the traffic signal poles, mast arms, signal heads, and luminaire arms of four traffic signal poles located along Clinton Parkway, more fully described in the attached Land Use Review, SP-03-15-07, attached hereto as Exhibit A and incorporated herein by reference; and

 

  1. Whereas Licensee is a nonprofit corporation that provides internet access to the residents of Lawrence at a free or reduced rate; and

 

  1. Whereas Licensee wishes to install communications equipment in the right-of-way and on the traffic signal poles at the intersections of Clinton Parkway and S. Iowa Street, Clinton Parkway and Crestline Drive, Clinton Parkway and Lawrence Avenue, and Clinton Parkway and Kasold Drive, in Lawrence, Kansas to enhance its abilities to provide free internet access to Lawrence residents; and

 

  1. Whereas, the City has agreed to permit Licensee to install certain communications equipment for this purpose on its traffic signal poles in the right-of-way in accordance with the approved plans described in Exhibit A on a trial basis, all in accordance with the terms and conditions of this License.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein, the parties hereby agree as follows:

 

  1. Grant of License.  The City hereby grants to the Licensee the non-exclusive license, right, privilege, and permission (the “License”) to use in common with others an area in the right-of-way to access in a safe and professional manner and with the prior approval of the City Engineer, the traffic signal poles located generally at the four intersections more fully described in Exhibit A, for the purpose of installing and maintaining, at Licensee’s sole cost and expense, certain communications equipment approved in Exhibit A for its internet access points.  The City grants to the Licensee the non-exclusive license, right, privilege and permission to use in common with others space on the four traffic signal poles to install and maintain in a safe and professional manner and its communications equipment approved in Exhibit A.  Nothing in this License Agreement shall be interpreted to give Licensee authority to install (1) any equipment other than the equipment approved in Exhibit A; and (2) on any other City property or right-of-way not specifically described herein without the prior approval of the City.

 

  1. No Representation by the City.  The Licensee represents that the City has made no representations with respect to the right-of-way, the traffic signal poles, or their respective conditions, and that the Licensee is not relying on any representations of the City or the City’s agents with respect to the use or condition of the right-of-way or the traffic signal poles.  This License Agreement grants the Licensee the privilege and permission to use that portion of the right-of-way and the space on the traffic signal poles described in Paragraph 1 of this License Agreement in their present condition “as is” without any warranties subject to the conditions set forth herein.

 

  1. Covenants of the Licensee.  The Licensee hereby covenants and warrants to the City, as follows:

 

    1. To install and maintain its communications equipment at the Licensee’s sole cost and expense for the duration of the License Agreement.
    2. To employ persons who are qualified to perform the installation and maintenance work and who are trained in appropriate safety procedures for the installations and maintenance work in the City’s right-of-way and on the City’s traffic signal poles;
    3. To cause said persons installing and maintaining Licensee’s equipment to use “Best Practices” in all work related to the installation and maintenance of the equipment;
    4. To cause said persons installing and maintaining Licensee’s equipment to use bucket trucks to access the City’s traffic signal poles and to use at all times industry standard safety gear, including fall restraints and other safety equipment for such installation and maintenance work;
    5. To procure and maintain at all times this License Agreement is in effect, general liability insurance for Licensee’s equipment and installation and maintenance operations, with the City of Lawrence named as an additional insured party, in the amount of $1,000,000.00 for each occurrence, $1,000,000.00 of coverage for personal injury and $2,000,000.00 general aggregate coverage and $300,000.00 coverage for damage to City property.
    6. To allow only authorized representatives of Licensee to access the traffic signal poles for installation or maintenance work.  For the purposes of this provision, “authorized representatives of Licensee” shall mean persons covered by Licensee’s general liability insurance policy in effect during the term of this License.
    7. To notify the City Engineer in person or by telephone at least 24 hours in advance of any installation or maintenance work on the traffic signal poles;
    8.  To coordinate with Westar, its successors and assigns, in advance of any installation or maintenance work that affects or may affect Westar’s luminaire fixtures;
    9. To refrain from causing any waste, damage, or injury to the right-of-way and any part of the traffic signal poles;
    10. To refrain from causing any waste, damage, or injury to the luminaire fixtures;
    11. To ensure traffic is not unreasonably impeded by Licensee’s installation or maintenance work; Licensee shall provide a traffic control plan to the City Engineer for approval prior to completing any work in the right-of-way. All traffic control shall be in compliance with the Manual of Uniform Traffic Control Devices (MUTCD). Licensee shall be responsible for all costs for traffic control. Licensee will notify the Lawrence Police Department and the Lawrence-Douglas County Fire and Medical Department of any lane closures within a reasonable time in advance of the lane closure. 
    12. To remove, adjust, or relocate Licensee’s equipment immediately when the City deems it an emergency, or when the City determines the equipment is interfering with or reducing the efficiency of City equipment or operations.  Licensee agrees to remove or relocate its equipment when the City determines Licensee’s equipment needs to be moved for the non-emergency installation, repair, maintenance, or expansion of any streets or utilities located, or to be located in, on, under or through the right-of-way.  The Licensee shall bear all costs associated with moving its equipment and Licensee hereby agrees the City shall have no duty whatsoever to replace the Licensee’s equipment.  The Licensee may replace, at its sole cost and expense, its communications equipment to its former location as approved in Exhibit A, except as otherwise provided by paragraph 6 of this Agreement.
    13. To comply with all applicable state, federal and local laws, ordinances and regulations relating to its use and occupancy of the right of way and traffic signal poles for an internet access point. 
    14. The Licensee shall not have any right to enlarge the present scope of this License Agreement, without the prior written consent of the City.

 

  1. Indemnification of the City.  During the time this License Agreement is in effect, the Licensee agrees to indemnify, defend, and save the City, and the City’s officers, commissioners, agents, employees, grantees, and assigns, harmless from and against all claims, actions, liabilities, damages, costs, expenses, and judgments, including attorneys’ fees, which relate to, arise from, or are in connection with the Licensee’s use, occupancy or maintenance of the right-of-way, the four traffic signal poles or any portion thereof on account of any injury to persons or damage to property, excluding therefrom such injury or damage caused by the negligence of the City.

 

  1. Accommodation.  The permission granted to the Licensee under this License Agreement is given to the Licensee as an accommodation, and shall be without charge to the Licensee. The Licensee hereby acknowledges the City’s rights to the right-of-way and the traffic signal poles located in the right-of-way, and agrees to never assail, resist, or deny such rights by virtue of the Licensee’s occupancy or use under this License Agreement.

 

  1. Term and Termination.  The City reserves the right to terminate the permission granted by this License Agreement at any time and for any reason by giving the Licensee seven (7) calendar days written notice of such termination, except that the City may,  at the City’s election, terminate the permission immediately without such notice at any times, if (i) the Licensee fails to comply with or abide by each and all of the provisions of this License Agreement, or (ii) if the continued use of the License presents a health or safety hazard.

 

  1. Binding Effect.  This License Agreement shall, at all times, be binding upon the City and the Licensee. 

 

  1. No Assignment.  Licensee shall not transfer, assign, sublet, or pledge this License Agreement without the prior written consent of the City.

 

  1. Test.  Licensee understands that the City’s approval to install equipment on the four traffic signal poles approved in Exhibit A is on a trial basis.  The City may or may not authorize installations on other traffic signal poles.  The City may revoke this License Agreement at its discretion.

 

  1. Governing Law.  This License Agreement shall be construed and enforced in accordance with, and governed by, the law of the State of Kansas.

 

IN WITNESS WHEREOF, the undersigned have caused this License Agreement to be executed as of the Effective Date.

 

LICENSEE: 

 

 

_______________________________

Lawrence Freenet, Inc.

By:                                                      

Title:                                                   

 

 

STATE OF KANSAS             )

COUNTY OF DOUGLAS     )

 

BE IT REMEMBERED, that on this                          day of                                                             , 2007, before me, the undersigned, a Notary Public in and for the County and State aforesaid, came                                                                , who is personally known to me to be the same person who executed the within and foregoing instrument of writing and duly acknowledged the execution of the same.

 

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written.

 

 

                                                                                                                                               

Seal:                                                                Notary Public

 

 

 

CITY OF LAWRENCE, KANSAS a

municipal corporation

 

 

 

_________________________________

David L. Corliss, City Manager

                                                                                     

STATE OF KANSAS             )

COUNTY OF DOUGLAS     )

 

BE IT REMEMBERED, that on this                          day of                                                             , 2007, before me, the undersigned, a Notary Public in and for the County and State aforesaid, came David L. Corliss, City Manager, who is personally known to me to be the same person who executed the within and foregoing instrument of writing and duly acknowledged the execution of the same.

 

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written.

 

 

                                                                                                                                               

Seal:                                                                Notary Public