Full Text
WIRELESS COMMUNICATION FACILITY AGREEMENT BETWEEN CITY OF MOSCOW, IDAHO AND FIRST STEP INTERNET, LL.C. ROTARY PARK WATER TOWER THIS Agreement is made and entered into, this day of Prua , 2004, by and between CITY OF MOSCOW, IDAHO a municipal corporation of the state of Idaho, (hereinafter called "CITY") and FIRST STEP INTERNET, L.L.C., an Idaho Limited Liability Company, (hereinafter "FIRST STEP"), and for good and valuable consideration the parties agree as follows: SECTION 1: Property. Subject to the following terms and conditions, CITY allows and permits FIRST STEP to use certain designated space on one of CITY'S water towers and certain designated space on such water tower for the purposes set forth in Section 2. The location of CITY'S water tower and the space for the use permitted herein is more particularly described in Exhibit attached hereto. SECTION 2: Permitted Use. FIRST STEP may construct, operate, maintain, repair, and remove a wireless communication facility (WCF) on the property more particularly described in Section 1 herein. The WCF will include the following components: 2.1 Equipment Enclosure, 20" x 24" x 37"- Containing equipment related to the transmission and reception of microwave signals. 2.2 Antennas - Six panel/sector style antennas and one parabolic mounted with the appropriate hardware to the tower subject to approval by the Public Works Director. Antenna cables shall be secured to the tower. All work shall be approved by CITY. SECTION 3: Term. The initial term of this permission shall be for three years, commencing the date of the execution of this Agreement by both parties and terminating at midnight on the last day of the month in which the third annual anniversary of the commencement date shall have occurred. SECTION 4: Fee. The fee under this Agreement shall consist of a monetary fee as follows: Annual Monetary Fee. Upon the commencement date, FIRST STEP shall pay to CITY the sum of Two Thousand Two Hundred and No One Hundredths Dollars ($2,200.00) per year and thereafter a like sum on each anniversary date during the initial term of this agreement. SECTION 5: Recovery of Costs. FIRST STEP shall: 5.1 Reimburse CITY for any and all costs CITY reasonably incurs in responding to any emergency caused by FIRST STEP'S wireless communication facility. 5.2 Reimburse CITY for its proportionate share for all expenses and costs, including CITY personnel salary and benefits, incurred by CITY in 2004-36 ---PAGE BREAK--- planning, constructing, installing, repamng or altering any CITY facility which becomes reasonably necessary as the result of the presence of the WCF permitted by this Agreement. SECTION 6: FIRST STEP'S Responsibilities. 6.1 FIRST STEP agrees to comply with Moscow City Ordinance Section 4-6- 14 and Resolution No. 2001-02, as those currently exist and any amended Moscow City Ordinance Section 4-6-14 and related CITY Council Resolutions existing at the time of subsequent renewals of this Agreement relating to the safety of the public and employees of CITY or of FIRST STEP; provided that if FIRST STEP seeks to modify or change its WCF facilities requiring compliance with CITY'S Zoning Code, then its WCF shall meet the then existing requirements relating to its WCF. 6.2 FIRST STEP shall pay all costs involved in the construction, operation, maintenance, repair, and removal of the WCF permitted under this Agreement. Fl RST STEP shall have a representative inspector on-site during the installation process. including when work is being done by any subcontractor. 6.3 FIRST STEP shall comply with all applicable CITY, county, state, and federal laws, ordinances, and regulations regarding the use permitted under this Agreement; and, obtain all appropriate permits, approvals, and certifications at FIRST STEP'S own expense. 6.4 FIRST STEP shall not do anything or allow anything to be done on the property described in Section I and CITY'S water tank located thereon which would in any way compromise the integrity of CITY'S water tank or CITY'S water system. Prior to construction of the WCF or any associated component, FIRST STEP will submit for review and approval by the Public Works Director or Designee plans and specifications for the proposed work. 6.5 Whenever construction, maintenance, repair, operation, or removal of the WCF or facilities authorized by this Agreement has caused or contributed to a condition that appears to the Public Works Director or Designee to impair or endanger CITY property or utilities, the Public Works Director or Designee may direct FIRST STEP, at FIRST STEP'S own expense, to take action to protect CITY property or CITY utilities. Such action may include compliance within such time as may be prescribed by the Public Works Director or Designee. The prescribed time will be reasonable and related to the seriousness of what needs correcting both of which will be determined solely by the Public Works Director or Designee. In the event that FIRST STEP fails or refuses to take the actions directed by the Public Works Director or Designee; or fails to fully comply with such directions; or if emergency conditions exist which require immediate action, CITY may enter upon FIRST STEP'S WCF, located on the property described in Section I, and take such actions as CITY in its sole discretion considers appropriate in order to protect CITY property or its utilities and FIRST STEP shall be liable to CITY for the costs thereof. ---PAGE BREAK--- 6.6 This Agreement contemplates that both CITY and FIRST STEP will from time to time need to do maintenance on their respective facilities. It further contemplates that mutual reviews of plans for construction or maintenance will occur in order to coordinate and accommodate such work and maintenance. Consistent with this approach, FIRST STEP shall take any and all steps necessary to allow CITY to carry out ongoing required maintenance in an efficient and safe manner. For example, during painting of the tank, this requirement could include covering possible extra costs for the contractor to deal with the antennas and cable on the tank. Any required work on CITY components such as protection, removal, or relocation to allow maintenance of FIRST STEP'S facilities will be done only with the prior approval of the Public Works Director or Designee at no cost to CITY. The present essential function of this CITY property, as noted in Section 8 of this Agreement, is the storage and conveyance of CITY potable water supplies. The approval of FIRST STEP'S plans for a WCF and associated components on this water tank property will be based on currently adopted long-range planning. Even so, over time, the needs of CITY may change and thus other functions may be added or exchanged for the existing function to maintain essential services to the citizens of Moscow. However, in the event CITY requires either temporary or permanent relocation of FIRST STEP'S WCF or any of its components, in order to maintain or carry out any or all of the essential CITY functions of the site, including any decision to demolish or remove the tank, FIRST STEP shall make such changes at FIRST STEP'S sole expense. CITY will, to the extent practical in non-emergency situations, provide FIRST STEP with a written request for relocation changes at least one hundred eighty (180) calendar days in advance. 6.7 FIRST STEP shall be solely responsible for inspecting the ladder system on CITY'S water tower for safety before allowing its employees or contractors to use the ladder system. CITY DOES NOT MAKE AND WILL NOT MAKE ANY REPRESENTATION WHATSOEVER AS TO THE SAFETY CONDITION OF THE LADDER SYSTEM ON CITY'S WATER TOWER FOR THE PURPOSE OF THE USE INTENDED BY FIRST STEP OR ANYONE ACTING FOR OR ON BEHALF OF FIRST STEP. 6.8 Under-grounding of electrical service to serve the WCF permitted under this Agreement is required by this Agreement on the property described in Section I and in the public right-of-way serving the entrance to said property. All costs of obtaining electrical service to the WCF and the under-grounding thereof as herein required shall be the sole obligation of FIRST STEP and not CITY. The location of the electrical service meter shall be approved by CITY. SECTION 7: Ingress and Egress Rights. 7.1 CITY grants to FIRST STEP, a nonexclusive right for ingress and egress across CITY's property described in Section I, subject to twenty-four (24) prior written notice to CITY for scheduled or routine maintenance, construction, servicing, and/or repair. Such twenty-four (24) hours prior written notice to CITY does not apply to emergencies. In case of an ---PAGE BREAK--- emergency, FIRST STEP shall notify CITY of entry as soon as practicable following FIRST STEP'S first notice of such emergency. 7.2 FIRST STEP, upon written permission from Public Works Director or Designee, may, at FIRST STEP'S own cost, make such improvements as it may deem necessary in and to any access way controlled by CITY used for access to and egress from the WCF. FIRST STEP shall, at its own cost, repair to CITY standards any damage resulting from its use. 7.3 Should FIRST STEP require the assistance of CITY or the presence of CITY employees, agents, contractors, or subcontractors, in support of construction, maintenance, servicing, repair, and/or removal of it's WCF, FIRST STEP shall compensate CITY for costs and services rendered by CITY. 7.4 CITY retains the right to shut down all power to its property including Rotary Park Water Tower at any time without notice to FIRST STEP; however, where practicable, CITY will give advance notice of such power shut down twenty four (24) hours prior and will work with FIRST STEP to minimize any disruption to FIRST STEP'S business which may occur as a result of such shut down.. Nothing in this Agreement shall limit or be interpreted to limit the CITY'S right to access to its own property or to appurtenances, attachments or fixtures thereto. 7.5 FIRST STEP shall, at all times other than during an emergency, require the presence of a CITY employee when performing any services which require FIRST STEP to be physically present on the Rotary Park Water Tower. SECTION 8: Nonexclusive Grant. 8.1 This Agreement and the permission granted hereunder shall not in any manner prevent CITY from entering into other agreements for uses similar to the use herein permitted or prevent CITY from granting or entering into other agreements for uses on, under, across, or over the property described in Section I of this Agreement whether or not those uses be similar to the use permitted by this Agreement. This Agreement shall in no way prevent or prohibit CITY from using said property as CITY in its sole discretion considers appropriate, or affect its jurisdiction over it. CITY shall retain the exclusive power to make all necessary changes, relocations, repairs, maintenance, establishment, and improvement of and to CITY facilities within said property. It is understood that the primary use of the CITY'S water tower is a public use, which is to provide water to water users, and FIRST STEP'S use of the CITY'S water tower is secondary and subordinate to that public use. It is further understood that any agreements entered into by the CITY and parties not a party to this Agreement will not unreasonably interfere with the use permitted to FIRST STEP under this Agreement. 8.2 CITY and FIRST STEP understand and agree herein that co-location shall be required at any time designated by CITY pursuant to any ---PAGE BREAK--- conditions CITY wishes to establish. Such co-location shall not give rise to any expectation of financial benefit to FIRST STEP. FIRST STEP shall not charge any fee to CITY or to co-locator for such co-location, neither shall FIRST STEP establish any requirements for such co-location. CITY agrees to make a good faith attempt to accommodate FIRST STEP'S operational needs when considering whether to allow co-location and when imposing conditions for co-location. SECTION 9: Insurance. FIRST STEP shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges and authority granted hereunder to FIRST STEP, its agents, representatives or employees. Throughout the term of this Agreement, FIRST STEP shall provide an insurance certificate, together with an endorsement naming CITY, its officers, elected officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the CITY for its inspection and approval prior to the commencement of any work or installation of any facilities pursuant to this Agreement, and such insurance certificate shall evidence: 9.1. Automobile Liability insurance with limits no less than $1,000,000 Combined Single Limit per accident tor bodily injury and property damage; and 9.2 Commercial General Liability insurance, written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and $2,000,000 aggregate tor personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations; broad form property damage; explosion, collapse and underground (XCU); and employer's liability. The above coverage may be provided, in part, through an umbrella policy, with the approval of CITY. Any deductibles or self-insured retention must be declared to and approved by CITY. Payment of deductible or self-insured retention shall be the sole responsibility of FIRST STEP. The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, elected officials, agents, employees, representatives, consultants or volunteers. In addition, the insurance policy shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. FIRST STEP'S insurance shall be primary insurance as respects CITY, its officers, officials, employees, and volunteers. Any insurance maintained by CITY for or by its officers, officials, employees or volunteers shall be in excess of FIRST STEP'S insurance and shall not contribute with it. The insurance policy or policies required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to CITY. The insurance certificate shall contain language evidencing these requirements. ---PAGE BREAK--- SECTION 10: Indemnification. FIRST STEP hereby releases CITY and covenants not to bring suit and agrees to indemnify, defend, and hold harmless CITY, its officers, employees, agents and representatives from any and all claims, costs, judgments, awards or liability to any person, including claims by FIRST STEP'S own employees to which FIRST STEP might otherwise be immune, arising from the installation, use, operation, maintenance, repair, interruption of service, or removal of FIRST STEP'S WCF permitted under the terms of this Agreement except for claims based on the sole negligent and intentional acts of CITY, EXCEPT THAT FIRST STEP SHALL HOLD CITY HARMLESS AND INDEMNIFY IT AGAINST ANY LOSS FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE LADDER SYSTEM ON CITY'S WATER TOWER BY ANYONE (WHEN REQUESTED BY FIRST STEP) TO INSTALL, USE, MAINTAIN, REPAIR, OR REMOVE THE ANTENNA FACILITIES OF FIRST STEP'S WIRELESS COMMUNICATION FACILITIES. Fl RST STEP expressly agrees that this indemnity provision extends to any and all claims for injury, sickness, or death of any person, including employees of FIRST STEP, arising out of or caused by electro-magnetic emissions from FIRST STEP'S equipment. This indemnity shall not extend to emissions shown to be caused by any other electro-magnetic source. This shall be interpreted as a WAIVER of immunity under the workers compensation laws of the State of Idaho, which has been negotiated between the parties. Inspection or acceptance by CITY of any work performed by FIRST STEP at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. SECTION 11: Taxes. FIRST STEP shall pay all taxes, including leasehold excise taxes, if any, and assessments which may be assessed and become due and payable upon the property described in Section I, the improvements thereon or operation of FIRST STEP. It is the intention of the parties hereto that the WCF described in Section 2, and any building, fence, or other improvements of FIRST STEP'S on the property described in Section I, shall be deemed between the parties to be personal property of FIRST STEP. Upon the expiration of this Agreement FIRST STEP shall remove all of such property and restore the property described in Section I to its former condition, excepting normal wear and tear. SECTION 12: Failure to Construct Facility - Termination. If FIRST STEP is unable, through no fault of it's own, to obtain within six months after the execution of this Agreement by both parties all necessary permits, authorizations, and government approvals to construct and operate the WCF, FIRST STEP may, by sending written notice directed as specified in Section 16, terminate this Agreement. FIRST STEP shall remove any property it has placed on the property designated in Section I, and shall restore the premises to its previous condition, whereupon the parties shall be under no further obligation to each other. Failure to begin construction within three months of the commencement date established in Section 3 and to complete construction in a timely manner shall be basis for termination of the Agreement by CITY, provided that such time limit shall not apply to delays caused by acts of God, strikes, or other occurrences over which FIRST STEP has no control. SECTION 13: Right to Terminate Agreement-FIRST STEP. FIRST STEP shall have the right to terminate this Agreement at any time after the commencement date ---PAGE BREAK--- established in Section 3 upon giving CITY sixty (60) calendar days notice directed as specified in Section 16. FIRST STEP shall remove all of its property and return the land and CITY'S water tower described in Section 2 to its original state, excepting normal wear and tear, within the sixty (60) calendar day period. SECTION 14: Right to Terminate Agreement - CITY. CITY shall have the right to terminate this Agreement with or without cause at any time after the date of execution of this Agreement upon giving FIRST STEP sixty (60) calendar days notice directed as specified in Section 17. SECTION 15: Termination and Forfeiture. If FIRST STEP willfully violates or fails to comply with any of the provisions of this Agreement, or fails to comply with any notice given FIRST STEP by CITY under the provisions of this Agreement, then at the election of the Moscow City Council, and after a hearing held upon reasonable notice to FIRST STEP, this Agreement may be terminated by CITY, and FIRST STEP shall forfeit all rights conferred hereunder and shall restore the property described in Section I and CITY'S water tower to its original condition. The Council may decide, after consideration of the reasons for FIRST STEP'S failure to comply with the Agreement, to allow FIRST STEP additional time to cure before such termination. This termination provision is in addition to CITY'S right to demolish or remove the water tank or declare the property surplus contained in Paragraph 6.6. SECTION 16: Remedies to Enforce Compliance. In addition to any other remedy provided herein, CITY reserves the right to pursue any remedy to compel or force FIRST STEP and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by CITY shall not prevent CITY from thereafter declaring a forfeiture or revocation for breach of the conditions herein. SECTION 17: Notices. All written notices shall be directed to: CITY: City of Moscow Attention Public Works Director P 0 Box 9203 Moscow, I D 83843 Phone: (208) 883-7003 Facsimile: (208) 883-7018 FIRST STEP: FIRST STEP INTERNET, L.L.C. Kevin Owen, President I CEO P 0 Box 9587 Moscow, ID 83843 Phone: (208) 883-8869 Facsimile: (208) 883-3733 Delivery of said notice shall be effected in any one of the following manners: 17.1 By personal delivery to and acknowledgment of receipt thereof signed by the receiving party. ---PAGE BREAK--- 17.2 By depositing the notice in the United States mails, in an envelope properly addressed to the address indicated above with postage fully prepaid thereon and mailed certified, return receipt requested. In the event said notice is mailed, it shall be deemed delivered seven days following the deposit thereof in the United States mails. SECTION 18: Assignment. Subject to CITY'S prior approval, FIRST STEP may assign this permit upon written notice CITY, provided FIRST STEP is not in default, to any person or business entity which is authorized pursuant to and licensed by the FCC to operate a wireless communications business, is a parent, subsidiary or affiliate of FIRST STEP, is merged or consolidated with FIRST STEP or purchases more than fifty (50) percent of either an ownership interest in FIRST STEP or the assets of FIRST STEP in the "Metropolitan Trading Area" or "Basic Trading Area" (as those terms are defined by the FCC) in which the property is located. Upon such assignment, FIRST STEP shall be relieved of all liabilities and obligations hereunder CITY shall look solely to the assignee for performance under this Agreement and all obligations herein. Additionally, provided FIRST STEP is not in default, FIRST STEP may, upon notice to CITY, mortgage or grant a security interest in the permission granted under this Agreement and the WCF, and may assign the permission granted under this Agreement and the WCF to any mortgagees or holders of security interests, including their successors or assigns, (hereinafter collectively referred to as "Mortgagees"), provided such Mortgagees agree to be bound by the terms and provisions of the permission granted under this Agreement. In such event, CITY shall execute such consent to financing as may reasonably be required by Mortgagees. CITY agrees to notify FIRST STEP and FIRST STEP'S Mortgagees simultaneously of any default by FIRST STEP and to give Mortgagees the same right to cure any default as FIRST STEP or to remove any property of Fl RST STEP or Mortgagee located on the premises, except that the cure period for any Mortgagee shall not be less than thirty (30) days after receipt of the default notice, as provided in Section 16 of this Permit, provided there is no default. All such notices to Mortgagees shall be sent to Mortgagee at the address specified by FIRST STEP. Failure by CITY to give Mortgagee such notice shall not diminish CITY'S rights against FIRST STEP, but shall preserve all rights of Mortgagee to cure any default and to remove any property of FIRST STEP or Mortgagee located on the Premises, as provided in Section 14 of this Permit. SECTION 19: Venue Stipulation. This Agreement shall be construed as having been made and delivered within the state of Idaho, and it shall be mutually understood and agreed by each party hereto that this Agreement shall be governed by laws of the state of Idaho, both as to interpretation and performance. Any action at law, suit in equity, or judicial proceeding for the enforcement of this Agreement or any provisions thereof shall be instituted and maintained only in a court of competent jurisdiction in Latah County, Idaho. SECTION 20: Extent of Agreement. This Agreement contains all the terms and conditions agreed upon by the parties hereto. No other understanding, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind either of the parties hereto. ---PAGE BREAK--- SECTION 21: Modification. CITY and FIRST STEP reserve the right to change or modify the terms and conditions of this Agreement. However, no change or modification to this Agreement shall be valid or binding upon either party unless such change or modification is in writing and executed by both CITY, after receiving formal authorization by the CITY Council, and FIRST STEP with each party employing the same formalities as to the identity of signatories as have been utilized in this Agreement. SECTION 22: Binding Effect. That this Agreement shall be binding upon and inure to the benefit of the legal representatives and proper assigns and proper successors of the parties. SECTION 23: Waiver of CITY'S Lien. CITY hereby waives any and all lien rights it may have, statutory or otherwise concerning the WCF or any portion thereof which shall be deemed personal property for the purposes of this Permit, whether or not the same is deemed real or personal property under applicable laws, and CITY gives FIRST STEP and FIRST STEP'S Mortgagees the right to remove all or any portion of the same from time to time, so long as FIRST STEP is not in default under this Permit, in FIRST STEP'S and/or Mortgagee's sole discretion and without CITY'S consent. SECTION 24: lnterierence. CITY and FIRST STEP agree that CITY and/or any other tenants of the Property who currently have or in the future take possession of the Property will be permitted to install only such radio equipment that is of the type and frequency which will not cause measurable interierence to the existing equipment of FIRST STEP. Additionally, FIRST STEP agrees to only install such radio and other equipment that will not interiere with the existing equipment owned and operated by the CITY and other existing tenants of the Property. FIRST STEP agrees that upon notification that FIRST STEP's equipment is disrupting and intertering with CITY's or other existing tenant's equipment, FIRST STEP shall immediately discontinue use of said interiering equipment until such time as modifications can be made to eliminate said interierence. The parties acknowledge that there will not be an adequate remedy at law for non-compliance with the provisions of this paragraph and therefore, FIRST STEP shall have the right to equitable remedies, such as, without limitation, injunctive relief and specific periormance. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in duplicate, the day and year first above written. LESSOR: CITY OF MOSCOW, IDryunicipal corporation of the State of Idaho / v/ ---PAGE BREAK--- LESSEE: FIRST STEP INTERNET, LLC. an Idaho Limited Liability Company By: - Kevin Owen, Chief Executive Officer STATE OF IDAHO l ) ss. County of Latah ) ACKNOWLEDGEMENT On this day personally appeared before me, a Notary Public in and for said State, K..t.\l IO 0 , to me known to be the person name above as the duly authorized legal agent of FIRST STEP INTERNET, L.L.C., who executed the within and foregoing instrument, on behalf of FIRST STEP INTERNET, L.L.C. and acknowledged that he signed the same as his free and voluntary act and deed, for the uses and purposes therein mentioned. acknowledges and affirms that he has specific authority to legally bind FIRST STEP INTERNET, L.L.C. to this Agreement. GIVEN under my hand and official seal this day of Lusf: 200 . \11111111111/tu, R. l'lt. J ' \ E . . D ' ' - . ,g.,h B, uo F ICO.WL HrI? ··JK \ QTARMN G . i: ! r @ 'N'Oia!y Public in and for the State of Idaho : PUBL\C / § Residing ) 1 , • . e at a;>j, -ll My commission expires: A - { '1tt1''E: OF \v 1111it(H Agreement\FIRST STEP lease\pm