LICENSE AGREEMENT FOR TEMPORARY CONSTRUCTION

LICENSE AGREEMENT FOR TEMPORARY CONSTRUCTION

ACCESS AND STAGING BY AND BETWEEN

THE CITY OF LAWRENCE, KS, AND

THE BOWERSOCK MILLS & POWER COMPANY

This LICENSE AGREEMENT FOR TEMPORARY CONSTRUCTION ACCESS AND CONSTRUCTION STAGING (this “License Agreement” or this “Agreement”) is entered into this day of ______________ 2011 by and between the City of Lawrence, Kansas (“City”), a municipal corporation organized and existing under the laws of the State of Kansas, acting by and through its duly authorized representative, David L. Corliss, City Manager, and; The Bowersock Mills & Power Company (“Bowersock”) of Lawrence, Kansas, a for-profit corporation organized and existing under the laws of the State of Kansas, acting by and through its duly authorized officer, Sarah Hill-Nelson.

RECITALS

WHEREAS, the City is the owner of property along the banks of the Kansas River, including the Kansas River Levee; and

WHEREAS, Bowersock is constructing a hydroelectric powerhouse on the north bank of the Kansas River generally east of the Kansas River Bridge, commonly located at 250 North Powerhouse Road; and

WHEREAS, the City desires to provide Bowersock with access to and temporary use of City property, by way of a license agreement for purposes of staging of construction equipment, delivery of construction materials, and vehicular turnaround subject to the terms and limitations set forth herein.

NOW, THEREFORE, the parties to this License Agreement, in consideration of the sum of One and 00/100 Dollars ($1.00), paid by Bowersock to the City upon the mutual execution and delivery of this Agreement, plus other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in consideration of the covenants Bowersock expresses herein, agree as follows:

I. GRANT OF LICENSE

The City hereby grants to Bowersock, its employees, contractors, and subcontractors (collectively “Bowersock and Agents”) responsible for construction or restoration or any related activity as described herein the license, privilege and permission (“the License”) to access and use during the term set forth below, that portion of the City’s property shaded in red in the Map attached hereto as Exhibit A and incorporated herein by reference (“Construction Staging Area”). The license shall be for the limited purpose of accessing the construction site, for use as a construction staging area, for delivery of construction materials, and vehicular turnaround, subject to the terms and limitations set forth below.

This License Agreement shall cease and be terminated at such time as the Restorations have been accepted by the City in writing, or sooner if terminated pursuant to Section VIII. of this License Agreement.

II. TERM

The term of this Agreement shall be for twenty-four (24) months, beginning as of the date first set forth above, and concluding when the Restorations, as defined hereinafter, have been accepted by the City.

III. DESIGNATION OF PARTIES’ REPRESENTATIVES

The City designates the Director of the City’s Public Works Department (“PWD”) as its authorized representative to receive communication on the City’s behalf with respect to this Agreement. Bowersock designates its Secretary-Treasurer, Sarah Hill-Nelson, as its duly authorized representative to act on Bowersock’s behalf with respect to this Agreement. The Parties may designate a different representative so long as the party notifies the other.

IV. NO REPRESENTATIONS BY CITY

Bowersock represents that the City has made no representations with respect to the property or its condition, and that Bowersock is not relying on any representations of the City or the City’s agents with respect to the use or condition of the property. This License grants Bowersock the privilege and permission to use the property depicted in Exhibit A in its present condition “as is” without any warranties and subject to the conditions set forth herein.

V. RESONSIBILITIES OF BOWERSOCK

A. Bowersock agrees to design and construct, at is sole expense, the “Construction Staging Area” and “Restorations.” The Construction Staging Area and Restorations shown in Exhibit “A” shall be constructed according to plans and specifications approved by PWD prior to commencing construction activity. Said plans shall include an alternate pedestrian access route. Such approval by PWD shall not be unreasonably withheld.

B. Bowersock shall, at its sole cost and expense, install and maintain in good condition a chain link fence around the perimeter of the construction staging area. The Construction Staging Area, including the fence, shall be located at least ten (10) feet from the edge of the City’s Recreation Path. The fence shall be installed pursuant to a plan, approved in advance by the City. Said chain link fence shall contain a shield or barrier that will protect the area outside the Construction Staging Area from debris. The fence shall be secured with Knox padlocks to ensure emergency responders’ access.

C. Bowersock agrees to maintain the Construction Staging Area in good condition at all times keeping it free of trash and other debris, and shall regularly mow and trim the Construction Staging Area and fence line to maintain a neat and orderly condition.

D. Bowersock shall, at its sole cost and expense, install Type III barriers at locations designated by the City to prevent vehicular access on the levee. Bowersock and Agents shall not operate or park any motor vehicle of any kind on the levee and shall ensure all contractors, subcontractors, delivery drivers, equipment operators, and the like not operate or park any motor vehicle of any kind on the levee. EXCEPT AS NECESSARY TO CROSS THE KANSAS RIVER LEVEE TO TRAVEL FROM THE CONSTRUCTION STAGING AREA TO THE CONSTRUCTION SITE, THERE SHALL BE ABSOLUTELY NO VEHICLE ACCESS ON THE KANSAS RIVER LEVEE.

E. Bowersock Agents shall access the Construction Staging Area from the intersection at 2^nd Street and Locust Street only. There shall be no access from 2^nd Street.

F. Bowersock understands and agrees that Elm Street, 2^nd Street, 3^rd Street and Locust Street shall remain open and fully accessible to the City and the public at all times during construction.

G. Bowersock shall ensure Bowersock’s Agents travel on Elm Street, 3^rd Street, Locust Street and 2^nd Street. Bowersock Agents shall keep these streets free from Bowersock construction debris. Sediment, rock, mud and other debris from the Bowersock project shall be cleaned immediately. As part of its Restorations, Bowersock agrees to repair said streets, curbs, sidewalks, recreation paths, and other public infrastructure to a condition existing prior to the Bowersock project mobilization.

H. Bowersock agrees to timely comply with any request of City to perform maintenance and repairs to streets, curbs, sidewalks and other city infrastructure damaged by Bowersock or Bowersock’s Agents in the course of the powerhouse construction or the required Reconstructions while the construction project is in progress. This maintenance or repair work shall be performed to the City’s reasonable satisfaction, but the parties agree that this is interim maintenance and need not be completed to the same standards as the Restorations.

I. Bowersock agrees to maintain a 20 foot (20’) wide, all weather access road from Locust Street through the staging area to the construction site. The vertical clearance under the Kansas River Bridges must be at least 13’6” and shall account for the approach and departure angles of the bridges.

J. Bowersock agrees to install and maintain at its expense signs informing the public that the City’s recreation path adjacent to the construction site is closed and redirecting the public to the alternate pedestrian access route.

K. Bowersock agrees to coordinate all construction and construction staging activity with PWD, so as to ensure that normal City operations continue uninterrupted.

L. Bowersock agrees to comply with all City ordinances and other rules and regulations regarding permits and approvals related to construction of the Construction Staging Area and Restorations, as well as those of any other governmental entity having jurisdiction.

M. Bowersock and Agents shall employ appropriate means and methods to protect existing trees in the Construction Staging Area from damage. In the event a tree(s) is damaged or dies as result of Bowersock and Agents’ use, Bowersock agrees to reimburse the City for the value of the tree(s), as determined by the City’s Horticulture Manager.

N. Bowersock shall have the right to deposit tools, implements, and other materials in the Construction Staging Area and utilize construction, automotive and other equipment thereon when necessary for the purpose of constructing the power house.

O. Bowersock shall procure and maintain in full force and effect for the duration of this Agreement, liability and property damage insurance with a minimum of $1,000,000 (one million dollars) bodily injury, and $1,000,000 (one million dollars) property damage for each occurrence, and $2,000,000 (two million dollars) comprehensive general liability insurance. Bowersock shall provide a current copy of its policy or policies of insurance, or a Certificate of Insurance evidencing same, to the City prior to exercising their rights and duties under this Agreement. The City shall be named as an additional insured on all policies required by this License Agreement.

Bowersock shall require its contractor(s) who are responsible for constructing the Construction Staging Area and Restorations to procure and maintain statutory limits of workers’ compensation insurance coverage, motor vehicle liability insurance, and a minimum of $1,000,000 (one million dollars) employer’s liability insurance for the duration of this Agreement.

P. Bowersock and Agents shall take all necessary precautions to prevent sloughing or erosion in the Construction Staging Area. If such sloughing or erosion occurs, including any displacement of the land as a result of Bowersock’s use of the Construction Staging Area, its construction, deliveries to the construction site or by overloading the ground, Bowersock shall promptly restore the premises, to the satisfaction of the City; and Bowersock agrees to hold harmless and indemnify the City from and against demands and actions arising from or growing out of such sloughing or erosion, including all expenses and attorneys’ fees incurred in connection with any of these claims, actions or demands.

Q. Bowersock agrees that neither Bowersock nor any of its agents, contractors, subcontractors, engineers, or employees shall perform any drilling, digging or perforating the ground within the Construction Staging Area without first obtaining City’s prior consent. Bowersock and Agents agree to comply with any and all laws, ordinances or regulations concerning the Levee whether such laws, regulations and/or ordinances now exist or shall be enacted or issued during the term or any extension of this License Agreement.

R. Bowersock shall save and hold harmless, protect and indemnify City, its elected officials, employees and agents, from and against any and all liabilities, obligations, damages, penalties, claims of any kinds, causes of action, costs, charges and expenses, including attorney’s fees and expenses of agents, which may be imposed upon or incurred or served against City, its elected officials, employees or agents by reason of any occurrence or accident arising out of Bowersock and Agents’ use of the Construction Staging Area. In the case of any asserted claim or with respect to any action or proceeding brought against the City by reason of any such occurrence, Bowersock, upon written notice from the City, shall at Bowersock’s own cost and expense, promptly resist and defend such claim or action. Bowersock agrees, upon written request, to provide City with status reports and reasonable information about the pendency, disposition and/or handling of any such claim, action or proceeding.

S. Bowersock shall vacate the Construction Staging Area and perfect the Restorations in accordance with Section VI. as soon as its general contractor has installed and completed Bowersock’s construction project such that the Construction Staging Area is no longer needed. The Construction Staging Area will be timely vacated and Restoration timely perfected so as to vacate the License herein as soon as practicable. All expenses related to surveying, preservation and relocation of existing monuments, if any, shall be borne by Bowersock. Bowersock agrees after completion of the construction, Bowersock will, at its expense, restore the ground, to the City’s satisfaction and in accordance with Section VI., to the condition it was in prior to Construction Staging within a reasonable time.

VI. RESTORATIONS

A. Bowersock shall reseed, drill, fertilize, mulch, and water regularly the Construction Staging Area until such time as an acceptable stand of vegetation has been approved by the PWD. Bowersock and Agents’ reseeding shall comply with the specifications set forth in Exhibit B and incorporated by reference.

B. Bowersock shall restore the City Recreation Trail to a condition as good or better than existed prior to Bowersock’s mobilization of the construction project. Repairs may include grading, repairs of any failed or soft areas, and new surfacing including 6” (six inch) compacted AB-3 material.

C. The road from North Second Street through the Construction Staging Area to the Kansas River Levee shall be restored and/or repaired to a condition as good or better than existed prior to Bowersock’s mobilization of the construction project. Repairs may include grading, repairs to failed subgrade, and new surfacing material of asphalt millings.

D. Bowersock shall restore damage Bowersock and Agents cause to the streets, curbs, sidewalks, recreation paths, and other public infrastructure in or adjacent to 2^nd, 3^rd, Elm and Locust Streets to a condition as good or better than existed prior to Bowersock’s mobilization of the construction project. Prior to the project mobilization, the City shall perform a street rating with video and / or photographs to record the condition of the streets. As part of its Restorations, Bowersock agrees to make all required repairs timely and to the PWD’s satisfaction.

E. The City retains the right to inspect construction of the Construction Staging Area and Restorations, and to exercise its rights or duties in order to protect persons, property or the public interest in the Construction Staging Area.

VII. PROJECT COSTS AND RESPONSIBILITIES

A. All costs of the Construction Staging Area and Restorations shall be the sole responsibility of Bowersock.

B. Any increase in the actual costs of the Construction Staging Area and Restorations, including cost increases, change orders and overruns, shall be borne by Bowersock. Costs include, but are not limited to, architectural, engineering, consulting, design, labor, site preparation, site restoration, materials, supplies, legal fees, utilities, permits, inspections, insurance, and any other costs incurred in the design and construction of the Construction Staging Area and Restorations. Bowersock’s costs shall not include the City’s expenses in administering this Agreement.

VIII. TERMINATION

A. If any party fails to properly fulfill its obligations under this Agreement in a timely manner, or if any party violates any of the provisions of this Agreement, the non-breaching party shall notify the other party in writing of the specific violations of this Agreement. The breaching party shall have fourteen (14) days from receipt of this notice in which to cure any such violation. If the violation cannot be reasonably cured within said 14-day period, and the breaching party has diligently pursued such remedy as shall be reasonably necessary to cure violation, then the parties may agree in writing to an extension of the period in which the violation must be cured.

B. If, however, the breaching party has not cured any such violation as specified in the written notice or any extension within the time provided, then the non-breaching party, at its sole option, shall have the right to terminate this Agreement. This termination shall be made by sending written “Notice of Termination” to the breaching party. This notice of Termination shall be effective for all purposes when deposited in the US Mail, postage prepaid and mailed Certified US Mail, Return Receipt Requested.

C. If Bowersock defaults under this Agreement, upon depositing the Notice of Termination with the US Mail as specified above, the City may assume control and possession of the Construction Staging Area and Bowersock and Agents shall vacate it immediately and commence the Restorations.

D. The City reserves the right to immediately terminate this Agreement in the event of an emergency or when necessary, in the City’s sole discretion, to protect the public health, welfare or safety or to protect the levee system.

IX. MISCELLANEOUS PROVISIONS

A. This Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement. Any previous agreement, assertion, statement, understanding, or other commitment before the date of this Agreement, whether written or oral, shall have no force or effect upon the terms and conditions of this Agreement, except as otherwise provided for and acknowledged. Notwithstanding the foregoing sentence, nothing in this Agreement shall be construed or interpreted in such a way as to vacate or amend any certain preexisting underlying agreements by and between the City and Bowersock, all of which certain preexisting underlying agreements are and shall remain fully performable by the parties, subject to their terms and conditions. No agreement, assertion, statement, understanding, or other commitment during the term of this Agreement, or after the term of this Agreement, shall have any legal force or effect upon the terms and conditions of this Agreement unless properly executed in writing by the parties.

B. This Agreement is made, and shall be construed and interpreted under by the laws of the State of Kansas, and venue for any suit concerning this Agreement shall rest in Douglas County District Court.

C. Regardless of the actual drafter of this Agreement, this Agreement shall, in the event of any dispute over its meaning or application, be interpreted fairly and reasonably, and neither more strongly for nor against the parties to this Agreement.

D. All official communications and notices required to be made under this Agreement shall be deemed made if sent postage prepaid to the parties at the addresses listed below, unless otherwise specified in this Agreement:

If to the City: City of Lawrence

Attn: Public Works Director

PO Box 708

Lawrence, KS 66044

If to Bowersock: Sarah Hill-Nelson

Bowersock Mills and Power Co.

P.O. Box 66

Lawrence, KS 66044

E. The City and Bowersock respectively, bind themselves, their successors in interest, assigns and legal representatives to this Agreement. Bowersock shall not assign or transfer any interest in this Agreement without the prior written consent of the City.

F. Time is of the essence in this Agreement.

G. The parties hereto acknowledge that the Construction Staging Area as depicted on Exhibit A is under contract for purchase from the City by the North Mass Redevelopment Group, LLC pursuant to an agreement authorized by the Lawrence City Commission on October 28, 2008.

X. SEVERABILITY

A. If the final judgment of a court of competent jurisdiction invalidates any part of this Agreement, then the remaining parts of this Agreement shall remain in full effect.

XI. WAIVER

A. If at any time the City, its successors or assigns, fails to enforce this Agreement, whether or not any violations of it are known, such failure shall not constitute a waiver or estoppel of the right to enforce it.

XII. NO RECOURSE

A. No recourse shall be had against any elected official, director, officer, attorney, agent, or employee of the City, whether in office on the effective date of this Agreement or after such date, for any claim based upon this Agreement.

THIS AGREEMENT is made to be effective on the date first written above.

CITY OF LAWRENCE, KANSAS THE BOWERSOCK MILLS & POWER CO.

(A Municipal Corporation) (A Kansas for-Profit Corporation)

By By

David L. Corliss, Sarah Hill-Nelson,

City Manager Secretary-Treasurer

Date Date