Document Moscow_doc_50461d5eff

INTERMODAL TRANSIT CENTER SITE LEASE THIS INTERMODAL TRANSIT CENTER SITE LEASE is entered into as of the 2Co day of April, 2012, by and between THE BOARD OF REGENTS OF THE UNIVERSITY OF IDAHO, a state educational institution and body politic and corporate organized and existing pursuant to the Constitution and laws of the State of Idaho (hereinafter "UNIVERSITY") and the CITY OF MOSCOW, IDAHO, a municipal corporation of the State ofldaho (hereinafter "CITY"). This Agreement is hereinafter referred to as the "Site Lease". RECITALS UNIVERSITY is the owner of certain real property shown in Exhibit A ("Premises") hereto and desires to lease such property to the CITY for the purpose of permitting CITY to construct, own, and operate an intermodal transit center ("lTC") as described by the Memorandum of Agreement entered into by the parties to this Site Lease. The Memorandum of Agreement (MOA) is attached hereto as Exhibit and CITY has adequate funding to construct the lTC and has determined UNIVERSITY's site is the best location for the lTC to serve CITY residents and UNIVERSITY's students, employees, and visitors, and Premises are currently occupied by landscaping and parking and pedestrian improvements owned by UNIVERSITY. Prior to commencement of this Lease on May 14, 2012, UNIVERSITY has provided CITY with ample opportunity to inspect and test the condition of the Premises. Therefore, when CITY takes possession of Premises, CITY will accept the Premises in its "AS-IS" condition with all faults, if any, including both latent and patent defects. UNIVERSITY is not making, will not make, has not made and expressly disclaims any representations or warranties, express or implied, with respect to any aspect, feature or condition of the Premises including, without limitation, the existence of hazardous waste or the suitability of Premises for CITY's intended use. CITY's use and occupation of the Premises under this Site Lease will be at CITY's sole risk and in reliance solely upon CITY's inspection or non­ inspection, as the case may be, as to the condition of Premises; and This Site Lease is granted to CITY by UNIVERSITY upon condition that CITY simultaneously grants to UNIVERSITY a long term lease providing UNIVERSITY with operational use of a portion of the completed lTC ("Facility Lease") as provided by the MOA. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: A. Recitals: The parties acknowledge the foregoing Recitals are true and are incorporated into this Site Lease as if set forth in full. lTC SITE LEASE- Page I ---PAGE BREAK--- B. Premises: UNIVERSITY hereby leases to CITY, subject to the conditions expressed herein, certain real property located in the City of Moscow in Latah County, Idaho, commonly known as 1006 Railroad Street and more specifically shown in Exhibit attached hereto and incorporated herein, and together with a non-exclusive right for reasonable vehicular and pedestrian and ingress and egress over and across adjacent property owned by the UNIVERSITY (excluding any public rights of way), all of which as they may exist from time-to-time, sufficient to provide reasonable access to and from, for the reasonable use of the Premises. C. Initial Term and Renewal Term: The Site Lease commences May 14, 2012 and shall terminate on December 31, 2051 ("Initial Term"). If, as provided by the agreed upon conditions for renewal of the Facility Lease, the parties renew the Facility Lease, then this Site Lease shall be renewed for a term that is concurrent with such Facility Lease term renewal ("Renewal Term"), but such renewal term shall not extend beyond December 31, 2091, unless such further renewal is agreed upon by both parties, by separate written agreement. D. Rent: In lieu of rent for this Site Lease, City shall lease space in the completed lTC to UNIVERSITY as provided by the MOA. E. Development: CITY shall have the right to construct, own, and operate lTC as described in the MOA. F. Removal ofBuildings and Improvements: CITY shall, at the end of the Initial Term or, if extended, the Renewal Term, at CITY's sole cost and expense, remove or cause to be removed all buildings, structures, foundations, footings, materials signs or signboards, debris or other articles or facilities owned or used by CITY or CITY's contractors or placed on, above or below the surface of Premises by CITY or CITY's Contractors. CITY agrees to restore and level Premises to a condition satisfactory to UNIVERSITY. In the event the buildings and improvements are deemed by UNIVERSITY to be functional at the time of Site Lease termination, and CITY wishes to abandon rather than demolish and remove the buildings and improvements, UNIVERSITY shall accept the surrender of the Premises with the building and improvements left intact on the Premises. Unless otherwise agreed in writing by the Parties, CITY shall not be entitled to compensation for any value attributed to the buildings or improvements removed or abandoned to UNIVERSITY under the terms of this Site Lease. Unless otherwise agreed to in writing by the Parties, CITY shall remove CITY's and any contractor's personal property from Premises at the end of the Term. CITY is granted a period of thirty (30) days following the termination date of this Site Lease to effect such removal. G. Taxes and Fees: CITY or CITY's contractors shall pay all applicable taxes, fees, special assessments or other charges which may become due or which may be assessed against Premises, against CITY or its contractors, against the business conducted or personal property placed or used on Premises and against any and all improvements placed thereon during or for the period of the term of Site Lease even though such taxes, fees, special assessments, or other charges may not become due and payable until after termination of Site Lease. H. Right to Assign: Except to the extent described by the MOA in regards to other parties providing specific public transportation services at the lTC, CITY shall not assign this lTC' SITE LEASE- Page 2 ---PAGE BREAK--- Site Lease or sublet the Premises, or any part or portion thereof, without the prior written consent of UNIVERSITY. In the event of assignment of this Site Lease or other permission granted by CITY to public transportation service providers operating at the lTC, CITY is responsible for ensuring compliance with the occupation terms of this Site Lease from any assignee or subtenant. In the event of sale by UNIVERSITY of the property on which the Premises are located, UNIVERSITY shall be released from any and all obligations or duties arising under this Site Lease. In the event that UNIVERSITY's rights and obligations hereunder are assigned to a third party or Premises are sold to a new owner, UNIVERSITY shall cause such successor in interest to expressly assume in writing all of UNIVERSITY's duties and obligations pursuant to this Site Lease. I. Permitted Use: CITY shall use and occupy Premises for the sole and exclusive purpose of constructing, operating, and maintaining the lTC. Use of the Premises for purposes other than the lTC as defined in the MOA are not permitted without written request from CITY and the written approval of UNIVERSITY. J. Utilities: CITY agrees to pay all utilities required by CITY or assign payment responsibility to any contractor performing or operating on Premises or as otherwise provided by the MOA and Facility Lease. K. Indemnification and Insurance: CITY and UNIVERSITY are each considered a Governmental entity under the Idaho Tort Claims act (Idaho Code 6-901 through 6-929). CITY's liability coverage is provided through the Idaho Counties Risk Management Program (ICRMP). UNIVERSITY's liability coverage is provided through a self-funded liability program administered by the State of Idaho Office of Insurance Management. Limits of liability, and of UNIVERSITY and CITY's indemnification hereunder, with respect to claims covered by the Idaho Tort Claims Act, are five hundred thousand dollars ($500,000) Combined Single Limits, which amount is CITY's and UNIVERSITY's limit of liability under the Idaho Tort Claims Act. Nothing in this agreement shall be construed so as to expand the liability of CITY or UNIVERSITY beyond the limit of liability under the Idaho Tort Claims Act for any claims covered by such act. Indemnification between CITY and UNIVERSITY: 1. Unless otherwise determined by a condition of Federal Transit Administration Tiger II Grant No. ID-79-000 1 Key No. 12905, CITY waives any and all claims and recourse against UNIVERSITY, including the right of contribution for loss and damage to persons or property arising from, growing out of, or in any way connected with or incident to UNIVERSITY's performance hereunder, except for liability arising out of the sole negligence of UNIVERSITY or its officers, agents, or employees. Further, subject to the limits of liability specified in Idaho Code Section 6-901 through Section 6-929, known as the Idaho Tort Claims Act, UNIVERSITY shall indemnify, hold harmless, and defend CITY against any and all claims, demands, damages, costs, expenses, or liability arising out of UNIVERSITY's performance of this MOA, except for liability arising out of the sole negligence of CITY or its officers, agents, or employees. lTC SITE LEASE- Page 3 ---PAGE BREAK--- If CITY is determined to be solely negligent by a final decision in a court of law and such sole negligence by CITY directly results in judgment(s), costs, and/or expenses to UNIVERSITY, then CITY shall reimburse UNIVERSITY for the portion of such judgment(s), costs and/or expenses attributed to CITY as a result of such determination of CITY's sole negligence. 2. Unless otherwise required by a condition of Federal Transit Administration Tiger II Grant No. ID-79-000 1 Key No. 12905, UNIVERSITY waives any and all claims and recourse against CITY, including the right of contribution for loss and damage to persons or property arising from, growing out of, or in any way connected with or incident to CITY's performance hereunder, except for liability arising out of the sole negligence of CITY or its officers, agents, or employees. Further, subject to the limits of liability specified in Idaho Code Section 6-901 through Section 6-929, known as the Idaho Tort Claims Act, CITY shall indemnify, hold harmless, and defend UNIVERSITY against any and all claims, demands, damages, costs, expenses, or liability arising out of CITY's performance of this MOA, except for liability arising out of the sole negligence of UNIVERSITY or its officers, agents, or employees. If UNIVERSITY is determined to be solely negligent by a final decision in a court of law and such sole negligence by UNIVERSITY directly results in judgment(s), costs, and/or expenses to CITY, then UNIVERSITY shall reimburse CITY for the portion of such judgment(s), costs and/or expenses attributed to UNIVERSITY as a result of such determination of sole negligence. Insurance Requirements for CITY and UNIVERSITY. CITY's liability coverage is provided through the Idaho Counties Risk Management Program (ICRMP). UNIVERSITY's liability coverage is provided through a self-funded liability program administered by the State of Idaho Office of Insurance Management. Limits of liability with respect to claims covered by the Idaho Tort Claims Act, are five hundred thousand dollars ($500,000) Combined Single Limits, which amount is CITY's and UNIVERSITY's limit of liability under the Idaho Tort Claims Act. CITY and UNIVERSITY shall maintain their insurance through ICRMP and the State of Idaho Office of Insurance Management, throughout the term hereof. Notification. CITY and UNIVERSITY shall notify the other party of any claim arising under, or otherwise related to, the provisions hereof. CITY and UNIVERSITY shall cooperate with the other party in defense of such claims. CITY and UNIVERSITY shall each provide a Certificate of Insurance or a Certificate of Financial Responsibility to the other party, evidencing coverage pursuant hereto. Notice of claim or incident shall be given to the representative for the party by the party receiving such claim or incident. Indemnification by Third Parties. lTC SITE LEASE- Page 4 ---PAGE BREAK--- Subtenants or contractors of CITY (other than UNIVERSITY) shall be required to indemnify, defend and hold the State of Idaho, and UNIVERSITY and its governing board, employees, agents, and assigns harmless from and against any and all claims, losses, damages, injuries, liabilities and all costs, including attorneys fees, court costs and expenses and liabilities incurred in or from any such claim, arising from any breach or default in the performance of any obligation on CITY's or subtenant's/contractor's part to be performed under the terms of this Site Lease, or arising from any act, negligence or the failure to act of subtenant or contractor, or any agents, contractors, employees, invitees or guests thereof. CITY shall require any subtenants or contractors to provide indemnification to UNIVERSITY, as provided above. Insurance by Third Parties. During the Term of this Site Lease, subtenants or contractors of CITY shall be required to carry the types and limits of insurance shown in this insurance clause, and to provide UNIVERSITY with a Certificate of Insurance. At any time, UNIVERSITY reserves the right to amend insurance requirements or require a security bond, if circumstances warrant such action. Additionally and at its option, UNIVERSITY may request certified copies of required policies and endorsements. Such copies shall be provided within (1 0) ten days of UNIVERSITY's request. All insurers shall have a Best's rating of AV or better and be licensed and admitted in Idaho. CITY shall furnish UNIVERSITY with a certificate of insurance executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements set forth below. All policies required shall be written as primary policies and not contributing to nor in excess of any coverage UNIVERSITY may choose to maintain. All certificates shall provide for thirty (30) days' written notice to UNIVERSITY prior to cancellation or material change of any insurance referred to therein. All policies shall name State of Idaho and the Regents of the University of Idaho as an additional insured. Certificates shall be mailed to: P 0 Box 443162, Moscow, Idaho, 83844-3162, Attn: Risk Management. All policies shall contain waiver of subrogation coverage or endorsements. Failure of UNIVERSITY to demand such certificate or other evidence of full compliance with these insurance requirements or failure of UNIVERSITY to identify a deficiency from evidence that is provided shall not be construed as a waiver of CITY's obligation to maintain such insurance. Failure to maintain the required insurance may result in termination of this Site Lease at UNIVERSITY's option. By requiring insurance herein, UNIVERSITY does not represent that coverage and limits will necessarily be adequate to protect CITY, and such coverage and limits shall not be deemed as a limitation on CITY's liability under the indemnities granted to UNIVERSITY in this Site Lease. CITY shall require any subtenants or contractors to comply with the insurance provisions of this Site Lease. In the event CITY is not occupying space and is enforcing the subtenant's compliance with these insurance provisions, CITY shall not be responsible, as a requirement of this Site Lease, to maintain the specific insurance required below: CITY shall obtain or require subtenants (other than UNIVERSITY) or contractors to obtain insurance of the types and in the amounts described below: lTC SITE LEASE- Page 5 ---PAGE BREAK--- 1. Commercial General and Umbrella Liability Insurance. CITY (or subtenant) shall maintain Commercial General Liability (CGL) and, if necessary, commercial umbrella insurance with a limit of not less than $1,000,000 each occurrence and in the aggregate. If such CGL insurance contains a general aggregate limit, it shall apply separately to the Demised Premises and shall not be less than $1,000,000. CGL insurance shall be written on standard ISO occurrence form (or a substitute form providing equivalent coverage) and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract including the tort liability of another assumed in a business contract. 2. Commercial Auto Insurance. CITY (or subtenant) shall maintain a Commercial Auto policy with a Combined Single Limit of $1 ,000,000; Underinsured and Uninsured Motorists limit of $1 ,000,000; Comprehensive; Collision; and a Medical Payments limit of $10,000. Coverage shall include Non-Owned and Hired Car coverage. 3. Personal property. CITY (or subtenant) shall purchase insurance to cover CITY's (or subtenant's) personal property. In no event shall UNIVERSITY be liable for any damage to or loss of personal property sustained by CITY (or subtenant), whether or not insured, even if such loss is caused by the negligence of UNIVERSITY, its employees, officers or agents. 4. Workers' Compensation. Where required by law, CITY (or subtenant) shall maintain all statutorily required coverages including Employer's Liability. L. Hazardous/Materials: CITY shall not, nor shall it allow others to, accumulate, use, or store on the Premises materials classified as hazardous, biomedical or toxic waste except in compliance with environmental laws and other applicable state, federal, or local laws, rules or regulations. CITY shall comply and require its contractors to comply with any lawful order by an entity reposed with authority to regulate the use, accumulation, storage or disposal of hazardous waste. CITY shall not be responsible for any of such materials placed on the Premises by or through the UNIVERSITY prior to or during this Site Lease. As used herein, the term "environmental laws" shall mean the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended (CERCLA), the Resource Conservation Recovery Act, as amended (RCRA), the Federal Water Pollution Control Act, the Clean Air Act and any similar local, state or federal law, rule, ordinance or regulation. As used herein, the term "hazardous materials" shall mean any hazardous substance, pollutants, contaminants, or other hazardous waste or toxic substances defined in any environmental laws including, without limitation, petroleum and petroleum products, asbestos and asbestos containing materials, PCBs and urea-formaldehyde. In the event CITY or its contractors or subcontractors placed hazardous materials in violation of any environmental laws on the Premises during or prior to the date of the Site Lease, CITY shall, at CITY's cost and expense, cause such testing to be performed and shall cause any such hazardous materials to be removed, remediated or abated in compliance with all environmental laws. CITY hereby agrees to indemnify, defend, and hold UNIVERSITY harmless from and against any and all claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees), causes of action and judgments arising out of or lTC SITE LEASE -Page 6 ---PAGE BREAK--- related to hazardous materials existing in, or under the Premises caused by CITY or its contractors during or prior to the date of this Site Lease. M. Property Encumbrances: This Site Lease is subject to all applicable restrictions and all limitations of record, and is subject to any and all easements for public utilities of record. N. Waste and Nuisance Prohibited: CITY shall comply, during the term of this Site Lease, with all applicable laws affecting the Premises, the violation of which might result in any penalty assessed upon the UNIVERSITY or forfeiture of the UNIVERSITY's title to the Premises. CITY shall not commit, or suffer to be committed, any waste on the Premises or improvements, or any nuisance. 0. Remedies and Forbearance/Waivers: No delay or omission on the part of the UNIVERSITY or CITY to exercise any right or power granted herein shall impair any such right or power nor shall be construed as a waiver thereof, and every such right or power may nevertheless be exercised. P. Officials, Agents. and Employees Not Personally Liable: It is agreed that in no event shall any official, officer, employee or agent of the UNIVERSITY, nor any official, officer, employee or agent of the CITY be in any way personally liable or responsible for any covenant or agreement herein contained, whether expressed or implied, nor for any statement, representation or warranty made herein or in any way connected with this Site Lease. Q. Quiet Enjoyment: UNIVERSITY covenants that the CITY shall have the peaceful and quiet enjoyment of the Premises for the term of the Site Lease. R. Right of Entry: CITY shall permit the UNIVERSITY and the agents and employees of the UNIVERSITY to enter into and upon the Premises at all reasonable times for the purpose of inspecting the same for compliance with the terms of this Site Lease; provided, however, that UNIVERSITY shall first give twenty four (24) hours written notice of its desire to inspect the Premises and such inspection shall be accompanied by a designated representative of the CITY. Such notice for right of entry and inspection procedures shall not apply during an emergency in which such notice is impractical and UNIVERSITY's access to the Premises is necessary for preservation of life and/or property. S. Default: In the event UNIVERSITY shall at any time deem CITY to be in breach of this Site Lease, UNIVERSITY shall notifY CITY, in writing, stating specifically the nature of any such alleged breach. CITY shall not be deemed to be in default hereunder unless CITY fails to commence to cure any such default within ninety (90) calendar days after its receipt of such written notice and to diligently proceed to cure such default within a reasonable time. In the event of default, UNIVERSITY shall have all rights and remedies provided by law. T. Attorney Fees and Costs: In the event that either party to this Site Lease shall enforce any of the provisions hereof in any action at law or in equity the prevailing party to such litigation shall be entitled to recover from the other party or parties all costs and expenses, including reasonable attorney fees, incurred therein. U. Integration: This Site Lease embodies the entire agreement regarding the disposition of the rights associated with the Premises and represents the understanding of the parties relating to lTC SITE LEASE - Page 7 ---PAGE BREAK--- the subject matter herein and supersedes all prior understandings relating thereto. This Site Lease shall not be modified except in writing signed by all parties to be bound. V. Execution of Documents: The parties agree that they shall sign or cause to be signed all documents necessary to the effectuation of this Site Lease or any of the provisions herein. W. Authority to Enter Lease: UNIVERSITY has the authority to enter into this Site Lease and the execution, delivery of this Site Lease and the performance of the contractual obligations set forth herein are not in violation of any federal, state, or local statute, ordinance, rule or regulation and that no consents not already obtained are required. Individuals signing on behalf of UNIVERSITY and CITY have the delegated authority to obligate their respective entity as provided by this Lease. X. Notices: All notices under this Site Lease shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the date of mailing if mailed to the party to whom notice is to be given by registered or certified United States mail, postage prepaid, and properly addressed as follows: If to the UNIVERSITY: If to the CITY: Board of Regents of the University of Idaho Attn: Vice President for Finance and Administration University of Idaho Moscow 10 83844-3168 City of Moscow Attn: City Supervisor PO Box 9203 Moscow 10 83843 The addresses provided above may be changed and additional addresses or notices may be specified from time to time by notice given in writing in accordance with this Section. Y. Binding Effect: This Site Lease shall be binding upon and shall inure to the benefit of the heirs, personal representatives, successors and assigns of the parties. Z. Severability: If any term or provision of this Site Lease or the application of it to any person or entity or circumstances shall to any extent be invalid or unenforceable, the remainder of this Site Lease or the application of such term or provision to persons, entities or circumstances, other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Site Lease shall be valid and shall be enforced to the extent permitted by law. AA. Headings: Section headings contained herein are for convenience and reference and are not intended to define or limit the scope of any provisions of this Site Lease. BB. Counterparts: This Site Lease may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. CC. Time of the Essence: Time is of the essence of this Site Lease, and of each and every covenant, term, condition, and provisions thereof. lTC SITE LEASE - Page 8 ---PAGE BREAK--- DO. Nondiscrimination and Affirmative Action: UNIVERSITY and CITY shall not discriminate against any employee or applicant for employment in the performance of this Site Lease, with respect to tenure, terms, conditions or privileges of employment, or any matter directly or indirectly related to employment, because of race, sex, color, religion, age, status as disabled or a veteran, or physical or mental handicaps, national origin or ancestry. Breach of this covenant may be regarded as a material breach of this Site Lease. UNIVERSITY and CITY certify that they do not, and will not maintain segregated facilities or accommodations on the basis of race, color, religion or national origin. Regarding any position for which an employee or an applicant is qualified, the UNIVERSITY and CITY agree to take affirmative action to employ, train, advance in employment, and retain individuals in accordance with applicable laws and regulations including: 1. For nondiscrimination based on race, color, religion, sex or national origin, this includes, but is not limited to, the U.S. Constitution, and Parts II and IV of Executive Order 11246, September 24, 1965 (30 FR 12319). Grantee disputes related to compliance with its obligations shall be handled according to the rules, regulations, and relevant orders of the Secretary of Labor (See 41 CFR 60Ŷ 1.1 2. For nondiscrimination based on Disabled or Vietnam Veterans this includes, but is not limited to, the Vietnam Era Veterans Readjustment Assistance Act of 1972, as amended (38 U.S.C. 4012)(the Act); Executive Order 11701, January 24, 1973 (38 CFR 2675, January 29, 1973); and the regulations of the Secretary of Labor (41 CFR Part 60é250). 3. For nondiscrimination based on the Handicapped this includes, but is not limited to, Section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 793)(the Act); Executive Order 11758, January 15, 1974; and the regulations of the Secretary of Labor (41 FR Part 60é 741). 4. For nondiscrimination based on Age this includes, but is not limited to, executive Order 11141, February 12, 1964 (29 CFR 24 77). 5. UNIVERSITY and CITY shall include the terms of this clause in every subcontract or purchase order exceeding $50,000 and shall act as specified by the Department of Labor to enforce the terms and implement remedies. EE. Venue, Governing Law: Any legal proceeding instituted between the parties shall be in the courts of the County of Latah, State of Idaho, and each of the parties agrees to submit to the jurisdiction of such courts. It is further agreed that this Agreement shall be governed by the laws of the State of Idaho. lTC SITE LEASE- Page 9 ---PAGE BREAK--- IN WITNESS WHEREOF, the parties have caused this Site Lease to be executed effective as of the day and year first above written. UNIVERSITY: BOARD OF REGENTS OF THE UNIVERSITY OF IDAHO Finance and Administration Date _ lTC SITE LEASE- Page 10 CITY: CITY OF MOSCOW ---PAGE BREAK--- EXIIIBIT Diagram of Leased Premises lTC' SITE LEASE- Page II ---PAGE BREAK--- lntennodal Transit Center Lease Area • 1 inch= 50 feet ---PAGE BREAK--- EXHTBIT Memorandwn of Agreement lTC SIT!; I.A3ASF.-Pago 12 ---PAGE BREAK--- MEMORANDUM OF AGREEMENT BETWEEN CITY OF MOSCOW, IDAHO AND UNIVERSITY OF IDAHO REGARDING THE INTERMODAL TRANSIT CENTER (lTC) PROJECT THIS MEMORANDUM OF AGREEMENT BETWEEN CITY OF MOSCOW, IDAHO AND THE UNIVERSITY OF IDAHO REGARDING THE INTERM.ODAL TRANSIT GENTER (IT C) PROJECT (hereinafter "MOA") is entered into the C: -ft\ day of (/1t? re. A , 2012 by and between City of Moscow, Idaho, a municipal corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "CITY"), and The Board of Regents of the University of Idaho, a public corporation, state educational institution and body politic and corporate organized and existing under the Constitution and laws of the State of Idaho, P 0 Box 443168, Moscow, Idaho, 83844-3168 (hereinafter "UNIVERSITY"). WHEREAS, the project will include an approximately eight thousand (8,000) square foot building that will house CITY's public transit provider, UNIVERSITY's Parking and Transportation Services offices, and will include external covered platform and bus loading areas to serve intra-city, inter-city, and regional surface transportation providers (hereinafter lTC PROJECT"); and WHEREAS, CITY has secured approximately one point seven million dollars ($1,700,000) of Federal Transit Administration (FTA) Grant Funding for the development of the ITC; and WHEREAS, UNIVERSITY has secured approximately two hund.red thousand dollars ($200,000), in FTA grant awards to fund the construction of the ITC; and WHEREAS, the plan to locate the ITC on the University of Idaho campus has lead CITY and UNIVERSITY (in consultation with administrative personnel from Region 10 of the Federal Transportation Administration) to determine that the facility would be best owned, operated and maintained by CITY; and WHEREAS, CITY and UNIVERSITY wish to enter into a long-term site lease to allow CITY's ITC to occupy land owned and controlled by UNIVERSITY during the useful life of the lTC and to establish the relationship and relative rights and responsibilities between CITY and UNIVERSITY throughout the PARTIES' use of the ITC during its useful life; and WHEREAS, CITY and UNIVERSITY intend that CITY shall retain control of use by the public transit operators serving the community and those public transit related functional components of the lTC for the duration of the ITC's functional life (contemplated to be forty [40] years); and WHEREAS, CITY and UNIVERSITY will proportionately share the cost of operation and maintenance of the lTC pursuant to the terms of a long term facility lease; and WHEREAS, this necessitates the creation of legal agreements to a) permit the CITY to construct, own, and occupy the ITC upon UNIVERSITY's real property/ b) permit UNIVERSITY's MOA- CITY AND UNIVERSITY (lTC) p (j r: Jl ---PAGE BREAK--- occupation and use of a portion of the ITC, and c) describe the PARTIES' division of the cost of lTC facility operation and maintenance; NOW, THEREFORE, CITY and UNIVERSITY hereby agree as follows: SECTION 1: MOA PARTIES. City of Moscow, Idaho ("CITY"), a municipal corporation of the State of ldaho, 206 East Third Street, Moscow, Idaho, 83843. The Board of Regents of the University of Idaho ("UNIVERSITY"), a public corporation, state educational institution and body politic and corporate organized and existing under the Constitution and laws of the State of Idaho, P 0 Box 443168, Moscow, Idaho, 83844-3168. SECTION 2: Term of MOA. Term of this MOA shall be from the date of the last signature hereto to the simultaneous execution of a long term site lease ("Site Lease") and a long term facility lease ("Facility Lease") between CITY and UNIVERSITY for the functional life of the ITC (contemplated to be forty (40) years from the execution of the leases). SECTION 3: lTC PROJECT Description. The purpose of the lTC PROJECT is to design, construct and operate the lTC as shown in Exhibit which is anticipated to include an approximately eight thousand (8,000) square foot facility to be occupied by CITY's public transit administrative and operational staff and UNIVERSITY's Parking and Transportation Services (PTS) administrative and operational staff; three thousand (3,000) square feet of exterior covered passenger loading and bicycle parking areas and bike lockers; ten (1 0) overnight bus parking spaces; and an approximately two thousand five hundred (2,500) square foot exterior plaza and pedestrian area. The lTC shall include dedicated space to be occupied by CITY, or CITY's agent (hereinafter "TRANSIT SPACE"), dedicated space for PTS (hereinafter "PTS SPACE"), and shared common areas, such as building lobby areas, mechanical rooms, restrooms and the like (hereinafter "COMMON SPACE"). The ITC PROJECT Site (hereinafter "lTC SITE'') is located within the City of Moscow, Idaho, on land directly adjacent to a portion of Lot 60 on the University of Idaho campus addressed as 1 006 Railroad Street and located generally on the northeast corner of Sweet A venue and Railroad Streets as shown in Exhibit attached hereto and incorporated herein by this reference. SECTION 4: CITY agrees to do the following: CITY agrees to make CITY's awarded FTA funding available for the construction of the lTC facility; secure professional services for and manage the design of the lTC (with the input and assistance of UNIVERSITY); bid, contract, and manage the construction of the lTC; convey a Facility Lease to UNIVERSITY for dedicated use of the PTS SPACE and shared use of the COMMON SPACE for the useful life of the lTC (contemplated to be forty [40] years); and to operate the lTC upon the lTC SITE as required by FTA and further provided by the Facility Lease. SECTION 5: UNIVERSITY agrees to do the following: Make the lTC SITE available by granting the Site Lease to CITY for the purpose of CITY, its agents and contractors, constructing City's ITC on UNIVERSITY property and then operating the lTC for the contemplated useful life of the ITC; participate within the design and construction process; ; and jointly occupy the MOA-CITY AND UNIVERSITY (ITC) p A (j j2 ---PAGE BREAK--- lTC with CITY pursuant to the terms of the Facility Lease granted by CITY to UNIVERSITY with said Facility Lease allocating the costs of operation and maintenance of the ITC set forth therein. SECTION 6: CITY agrees to follow all conditions of the Federal Transit Administration Tiger II Grant No. ID-79-0001 Key No. 12905. CITY and UNIVERSITY agree that the operational costs of the ITC shall be shared in accordance with this MOA and the Facility Lease. SECTION 7: Design and Construction Process: CITY shall lead the design and construction process with the assistance of UNIVERSITY. CITY shall manage PROJECT bid and construction process, provide final direction to contractor and architect and shall be responsible for the ITC PROJECT until completion or issuance of Certificate of Occupancy. CITY may delegate all or a portion of the construction management to UNIVERSITY with UNIVERSITY's prior consent and agreement. SECTION 8: lTC Ownership. CITY shall own the lTC facility and improvements during and following completion of construction of the lTC PROJECT. SECTION 9: Use ofiTC and lTC SITE. CITY agrees to preserve UNIVERSITY's right of use of the PTS SPACE and COMMON SPACE and surrounding lTC SITE including passenger boarding platform, and overnight bus parking areas, and four designated short-term customer parking spaces for the duration of the Facility Lease, which terms are to be incorporated into the Facility Lease. SECTION 10: lTC Operation, Maintenance, and Improvement: The lTC shall be operated by CITY and jointly occupied by CITY and UNIVERSITY pursuant to the terms of the Facility Lease. The terms of the Facility Lease shall be in substantial conformance to the terms set forth in the draft Facility Lease attached hereto as Exhibit CITY shall operate and maintain the lTC in accordance with the landlord/tenant relationship established by the Facility Lease. CITY and UNIVERSITY shall jointly agree upon base level of utility and maintenance service (utility, janitorial, landscape and snow removal) to be provided to the lTC, PTS SPACE, and COMMON SPACE, and the cost of such services shall be shared proportionately between CITY and UNIVERSITY. Such proportionate cost sharing shall be calculated as the sum of all utility, janitorial and site maintenance costs multiplied by the percentage of dedicated space occupied. by CITY or UNIVERSITY plus fifty percent (50%) of the percentage of shared COMMON AREA as illustrated in the following example: Total Building Enclosed Square Footage= TRANSIT SPACE= PTS SPACE= COMMON SPACE= Total Annual Cost= $5 per sq. ft. x 7.245 = 7,245 sq. ft. 2,430 sq. ft. 2,580 sq. ft. 2,235 sq. ft. $36,225 CITY Share= (2,430 + (2,235 x 0.5)) I 7,245 = 48.96 % x $36,225 = $17,737.50 MOA- CITY AND UNIVERSITY (ITC) p (i 13 ---PAGE BREAK--- UNIVERSITY Share= (2,580 + (2,235 x 0.5)) I 7,245 = 51.04% x $36,225 = $18,487.50 lTC repairs and/or improvements, beyond common janitorial or minor maintenance activities, shall be jointly agreed between both PARTIES regarding the need, extent and payment for such improvements prior to the completion of such improvements. It is the intent that any such costs shall be shared in the same proportionate fashion as described herein. Should any primary building system component (such as heating and ventilation systems, plumbing systems or components, or electrical systems or components) fail and require immediate repair or replacement, both PARTIES agree that such primary system repair or replacement shall occur and the cost shall be paid by each party in the same proportionate manner described herein. SECTION 11: lTC Ancillary Revenue Generation: Any revenue generated as a result of the construction ·or operation of the lTC, such as any third party tenant lease of space within the lTC, locker rental, or similar revenue that is the result of the construction of the lTC with FT A grant funding, shall be accounted for separately and may only be used for the operation of the ITC or the provision of public transit services within Moscow in accordance to Federal regulation. Revenues of PTS arising from its operations (including but not limited to parking fees, ticketing and other typical parking management revenues) shall not be considered revenues generated as a result of the construction or operation of the lTC. SECTION 12: General Provisions A. Records Custody, Maintenance, and Ownership CITY shall be custodian of records in its possession or control according to Idaho law. UNIVERSITY shall be custodian of its own records, pursuant to Board of Regents custom rules and practice and according to Idaho law. Both PARTIES shall make available to CITY all technical data of record in the respective PARTIES' possession, including maps, surveys, water quality data and other information necessary to support the ITC PROJECT. Documents of service to the lTC PROJECT shall be the property of CITY, which shall have the exclusive and unrestricted authority to release, publish, or otherwise use them, in whole or in part. All such documents developed under this MOA shall not be subject to copyright or patent in the United States or in any other country without the prior written approval and express authorization of CITY. B. Compliance with Applicable State or Federal Laws. This MOA is performed in Moscow, Latah County, Idaho, and is subject to all applicable Federal and State laws, statutes, codes, any and applicable permits, ordinances, rules, orders, and regulations of any local, state, or federal government authority having or asserting jurisdiction. C. Force Majeure MOA- C!TY AND UNIVERSITY (lTC) P (I E J4 ---PAGE BREAK--- Time periods provided for performance of the obligations set forth in this MOA shall be extended for a period or periods of time equal to any period or periods of delay caused by strikes, lockouts, fire, or other casualty, litigation by third parties, the elements or acts of God, or other causes, other than financial, which are beyond the reasonable control of the party having the relevant obligation. D. Notice and Communications, PROJECT Representatives CITY and UNIVERSITY hereby designate their authorized representatives to act on their behalf with respect to the services and responsibilities under this MOA. The following designated representatives are authorized to receive notices, transmit information and make decisions regarding the ITC PROJECT on behalf of their respective PARTIES, except as expressly limited herein. These representatives are not authorized to alter or modify the terms and conditions of this MOA, except as provided in this MOA. For CITY: Name: Bill Belknap, Com Dev Director Address: P 0 Box 9203 Moscow, ID 83843 E-mail Address: [EMAIL REDACTED] For UNIVERSITY: Name: Brian Johnson, A VP Facilities Address: PO Box 442281 Moscow ID 83844-2281 E-mail Address: [EMAIL REDACTED] Work Telephone: [PHONE REDACTED] Fax Telephone: 208-8 83-7033 Work Telephone: [PHONE REDACTED] Fax Telephone: [PHONE REDACTED] In the event any changes are made to the authorized representatives or other information listed above, CITY and UNIVERSITY agree to furnish each other timely, written notice of such changes. E. No Joint Venture and No Joint Powers Agreement Nothing contained in this MOA shall be construed as creating a JOmt venture partnership or agency relationship between the PARTIES other than as provided in this MOA. The PARTIES herein specifically intend not to create a joint powers agreem¯nt as authorized by Idaho Code Sections 67-2326 through 67-2333. F. Successors and Assigns MOA-CITY AND UNIVERSITY (ITC) P c; r. Is ---PAGE BREAK--- The work on the ITC PROJECT to be provided under this MOA, and any claim arising hereunder, is not assignable or delegable by either PARTY in whole or in part, without the express prior written consent of the other PARTY. G. Severability The illegality, invalidity or unenforceability of any term, condition, or provision of the MOA shall in no way impair or invalidate any other term, condition, or provision of the MOA. All such other terms, conditions, and provisions shall remain in full force and effect. H. Jurisdiction and Venue It is agreed that this MOA shall be construed under and governed by the laws of the State of Idaho. In the event of litigation concerning it, it is agreed that proper venue shall be the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah. I. Indemnification 1. Unless otherwise determined by a condition of Federal Transit Adminis:tration Tiger II Grant No. ID-79-0001 Key No. 12905, CITY waives any and all claims and recourse against UNIVERSITY, including the right of contribution for loss and damage to persons or property arising from, growing out of, or in any way connected with or incident to UNIVERSITY's performance of this MOA, except for liability arising out of the sole negligence of UNIVERSITY or its officers, agents, or employees. Further, subject to the limits of liability specified in Idaho Code Section 6-901 through Section 6-929, known as the Idaho Tort Claims Act, UNIVERSITY shall indemnify, hold harmless, and defend CITY against any and all claims, demands, damages, costs, expenses, or liability arising out of UNIVERSITY's performance of this MOA, except for liability arising out of the sole negligence of CITY or its officers, agents, or employees. If CITY is determined to be solely negligent by a final decision in a court of law and such sole negligence by CITY directly results in judgment(s), costs, and/or expenses to UNIVERSITY, then CITY shall reimburse UNIVERSITY for the portion of such judgment( s costs and/or expenses attributed to CITY as a result of such determination of CITY's sole negligence. 2. Unless otherwise required by a condition of Federal Transit Administration Tiger II Grant No. ID-79-0001 Key No. 12905, UNIVERSITY waives any and all claims and recourse against CITY, including the right of contribution for loss and damage to persons or property arising from, growing out of, or in any way connected with or incident to CITY's performance of this MOA, except for liability arising out of the sole negligence of CITY or its officers, agents, or MOA-CITY AND UNIVERSITY (ITC) P (i E j6 ---PAGE BREAK--- employees. Further, subject to the limits of liability specified in Idaho Code Section 6-901 through Section 6-929, known as the Idaho Tort Claims Act, CITY shall indemnify, hold harmless, and defend UNIVERSITY against any and all claims, demands, damages, costs, expenses, or liability arising out of CITY's performance of this MOA, ecept for liability arising out of the sole negligence of UNIVERSITY or its officers, agents, or employees. If UNIVERSITY is determined to be solely negligent by a final decision in a court of law and such sole negligence by UNIVERSITY directly results in judgment(s), costs, and/or expenses to CITY, then UNIVERSITY shall reimburse CITY for the portion of such judgment(s), costs and/or expenses attributed to UNIVERSITY as a result of such determination ofUNIVERSITY1s sole negligence. J. Insurance and Notice of Claims CITY's liability coverage is provided through the Idaho Counties Risk Management Program (ICRMP). UNIVERSITY's liability coverage is provided through a self­ funded liability program administered by the State of Idaho Office of Insurance Management. Limits of liability, and of UNIVERSITY and CIT'i's indemnification under this MOA, with respect to claims covered by the Idaho Tort Claims Act, are five hundred thousand dollars ($500,000) Combined Single Limits, which amount is CITY's and UNIVERSITY's limit of liability under the Idaho Tort Claims Act. Notification. CITY and UNIVERSITY shall notify the other party of any claim arising under, or otherwise related to, the provisions of this MOA. CITY and UNIVERSITY shall cooperate with the other party in defense of such claims, as provided in this MOA. CITY and UNIVERSITY shall each provide a Certificate of Insurance or a Certificate of Financial Responsibility to the other party, evidencing coverage pursuant to this MOA. Notice of claim or incident shall be given to the ITC PROJECT representative for the party by the party receiving such claim or incident. Following completion of the ITC PROJECT, notice of claim or incident shall be given to CITY Clerk, P 0 Box 9203, Moscow, Idaho, 83843, or Risk Manager, University ofldaho, P 0 Box 4431 62, Moscow, Idaho, 83844-3 162. K. Remedies and Disputes. Any and all claims, disputes or controversies arising under, out of, or in connection with this MOA, which the PARTIES hereto shall be unable to resolve within sixty (60) days, shall be mediated in good faith by the PARTIES. Nothing in this MOA shall be construed to limit the PARTIES' choice of a mutually acceptable dispute resolution method in addition to the dispute resolution procedure outlined above, or to limit the PARTIES' rights to any remedy at law or in equity for breach of the terms MOA -CITY AND UNIVERSITY {ITC) P · - · u ro  I
· - X w ---PAGE BREAK--- c rn > u rn u I- I  X L.U ---PAGE BREAK--- :0 X L.U ---PAGE BREAK--- Discussion Draft - 201 1-07 1 1 INTERMODAL TRANSIT CENTER SITE LEASE TillS INTERMODAL TRANSIT CENTER SITE LEASE is entered into as of the day of , 201 1 , by and between THE BOARD OF REGENTS OF THE UNIVERSITY OF IDAHO, a state educational institution and body politic and corporate organized and existing pursuant to the Constitution and laws of the State of Idaho (hereinafter ''UNIVERSITY'') and the CITY OF MOSCOW, IDAHO, a municipal corporation of the State ofldaho (hereinafter 11CITY11). This Agreement is hereinafter referred to as the 11Site Lease11• RECITALS UNIVERSITY is the owner of certain real property shown in Exhibit A C'Premises") hereto and desires to lease such property to the CITY for the purpose of permitting CITY to construct, own, and operate an intermodal transit center ("ITC") as described by the Memorandum of Agreement entered into by the parties to this Site Lease. The Memorandum of Agreement (MOA) is attached hereto as EXhibit and CITY has adequate funding to construct the lTC and has determined UNIVERSITY's site is the best location for the lTC to serve CITY residents and UNIVERSITY's students, employees, and visitors, and Premises are currently occupied by landscaping and parking and pedestrian improvements owned by UNIVERSITY. Prior to commencement of this Lease on January 1, 2012, UNIVERSITY has provided CITY with ample opportunity to inspect and test the condition of the Premises. Therefore, when CITY takes possession of Premises, CITY will accept the Premises in its "AS-IS" condition with all faults, if any, including both latent and patent defects. UNIVERSITY is not making, will not make, has not made and expressly disclaims any representations or warranties, express or implied, with respect to any aspect, feature or condition of the Premises including, without limitation, the existence of hazardous waste or the suitability of Premises for CITY's intended use. CITY's use and occupation of the Premises under this Site Lease will be at CITY's sole risk and in reliance solely upon CITY's inspection or non­ inspection, as the case may be, as to the condition of Premises; and This Site Lease is granted to CITY by UNIVERSITY upon condition that CITY simultaneously grants to UNIVERSITY a long term lease providing UNIVERSITY with operational use of a portion of the completed lTC ("Facility Lease") as provided by the MOA. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: A. Recitals: The parties acknowledge the foregoing Recitals are true and are incorporated into this Site Lease as if set forth in full. lTC SITE LEASE -Page 1 ---PAGE BREAK--- Discussion Draft - 20 1 1-07 1 1 B. Premises: UNIVERSITY hereby leases to CITY, subject to the conditions expressed herein, certain real property located in the City of Moscow in Latah County, Idaho, commonly known as 1006 Railroad Street and more specifically shown in Exhibit attached hereto and incorporated herein, and together with a non-exclusive right for reasonable vehicular and pedestrian and ingress and egress over and across adjacent property owned by the UNIVERSITY (excluding any public rights ofway), all of which as they may exist from time-to-time, sufficient to provide reasonable access to and from, for the reasonable use of the Premises. C. Initial Term and Renewal Term: The Site Lease commences January 1, 2012 and shall terminate on December 3 1, 2051 ("Initial Term,). If, as provided by the agreed upon conditions for renewal of the Facility Lease, the parties renew the Facility Lease, then this Site Lease shall be renewed for a term that is concurrent with such Facility Lease term renewal ("Renewal Term,), but such renewal term shall not extend beyond December 31, 2091, unless such further renewal is agreed upon by both parties, by separate written agreement. D. Rent: In lieu of rent for this Site Lease, City shall lease space in the completed ITC to UNIVERSITY as provided by the MOA. E. Development: CITY shall have the right to construct, own, and operate ITC as described in the MOA. F. Removal of Buildings and Improvements: CITY shall, at the end of the Initial Term or, if extended, the Renewal Term, at CITY's sole cost and expense, remove or cause to be removed all buildings, structures, foundations, footings, materials signs or signboards, debris or other articles or facilities owned or used by CITY or CITY's contractors or placed on, above or below the surface of Premises by CITY or CITY's Contractors. CITY agrees to restore and level Premises to a condition satisfactory to UNIVERSITY. In the event the buildings and improvements are deemed by UNIVERSITY to be functional at the time of Site Lease termination, and CITY wishes to abandon rather than demolish and remove the buildings and improvements, UNIVERSITY shall accept the surrender of the Premises with the building and improvements left intact on the Premises. Unless otherwise agreed in writing by the Parties, CITY shall not be entitled to compensation for any value attributed to the buildings or improvements removed or abandoned to UNIVERSITY under the terms of this Site Lease. Unless otherwise agreed to in writing by the Parties, CITY shall remove CITY1s and any contractor1s personal property from Premises at the end of the Term. CITY is granted a period of thirty (30) days following the termination date of this Site Lease to effect such removal. G. Taxes and Fees: CITY or CITY's contractors shall pay all applicable taxes, fees, special assessments or other charges which may become due or which may be assessed against Premises, against CITY or its contractors, against the business conducted or personal property placed or used on Premises and against any and all improvements placed thereon during or for the period of the term of Site Lease even though such taxes, fees, special assessments, or other charges may not become due and payable until after termination of Site Lease. H. Right to Assign: Except to the extent described by the MOA in regards to other parties providing specific public transportation services at the lTC, CITY shall not assign this ITC SITE LEASE - Page 2 ---PAGE BREAK--- Discussion Draft - 201 1-071 1 Site Lease or sublet the Premises, or any part or portion thereof, without the prior written consent of UNIVERSITY. In the event of assignment of this Site Lease or other permission granted by CITY to public transportation service providers operating at the ITC, CITY is responsible for ensuring compliance with the occupation terms of this Site Lease from any assignee or subtenant. In the event of sale by UNIVERSITY of the property on which the Premises are located, UNIVERSITY shall be released from any and all obligations or duties arising under this Site Lease. In the event that UNIVERSITY's rights and obligations hereunder are assigned to a third party or Premises are sold to a new owner, UNIVERSITY shall cause such successor in interest to expressly assume in writing all of UNIVERSITY's duties and obligations pursuant to this Site Lease. I. Permitted Use: CITY shall use and occupy Premises for the sole and exclusive purpose of constructing, operating, and maintaining the ITC. Use of the Premises for purposes other than the ITC as defined in the MOA are not permitted without written request from CITY and the written approval of UNIVERSITY. 1. Utilities: CITY agrees to pay all utilities required by CITY or assign payment responsibility to any contractor performing or operating on Premises or as otherwise provided by the MOA and Facility Lease. K. Indemnification and Insurance: CITY and UNIVERSITY are each considered a Governmental entity under the Idaho Tort Claims act (Idaho Code 6-901 through 6-929). CITY's liability coverage is provided through the Idaho Counties Risk Management Program (ICRMP). UNIVERSITY's liability coverage is provided through a self-funded liability program administered by the State of Idaho Office of Insurance Management. Limits of liability, and of UNIVERSITY and CITY's indemnification hereunder, with respect to claims covered by the Idaho Tort Claims Act, are five hundred thousand dollars ($500,000) Combined Single Limits, which amount is CITY's and UNIVERSITY's limit of liability under the Idaho Tort Claims Act. Nothing in this agreement shall be construed so as to expand the liability of CITY or UNIVERSITY beyond the limit of liability under the Idaho Tort Claims Act for any claims covered by such act. Indemnification between CITY and UNIVERSITY: 1 . Unless otherwise determined by a condition of Federal Transit Administration Tiger II Grant No. ID-79-0001 Key No. 12905, CITY waives any imd all claims and recourse against UNIVERSITY, including the right of contribution for loss and damage to persons or property arising from, growing out of, or in any way connected with or incident to UNIVERSITY's performance hereunder, except for liability arising out of the sole negligence of UNIVERSITY or its officers, agents, or employees. Further, subject to the limits of liability specified in Idaho Code Section 6-901 through Section 6-929, known as the Idaho Tort Claims Act, UNIVERSITY shall indemnify, hold harmless, and defend CITY against any and all claims, demands, damages, costs, expenses, or liability arising out of UNIVERSITY's performance of this MOA, except for liability arising out of the sole negligence of CITY or its officers, agents, or employees. ITC SITE LEASE - Page 3 ---PAGE BREAK--- Discussion Draft - 201 1 -071 1 If CITY is determined to be solely negligent by a final decision in a court of law and such sole negligence by CITY directly results in judgment(s), costs, and/or expenses to UNIVERSITY, then CITY shall reimburse UNIVERSITY for the portion of such judgment(s), costs and/or expenses attributed to CITY as a result of such determination of CITY's sole negligence. · 2. Unless otherwise required by a condition of Federal Transit Administration Tiger II Grant No. ID-79-0001 Key No. 12905, UNIVERSITY waives any and all claims and recourse against CITY, including the right of contribution for loss and damage to persons or property arising from, growing out of, or in any way connected with or incident to CITY's performance hereunder, except for liability arising out of the sole negligence of CITY or its officers, agents, or employees. Further, subject to the limits of liability specified in Idaho Code Section 6-901 through Section 6-929, known as the Idaho Tort Claims Act, CITY shall indemnify, hold harmless, and defend UNIVERSITY against any and all claims, demands, damages, costs, expenses, or liability arising out of CITY's performance of this MOA, except for liability arising out of the sole negligence of UNIVERSITY or its officers, agents, or employees. If UNIVERSITY is determined to be solely negligent by a final decision in a court of law and such sole negligence by UNNERSITY directly results in judgment(s), costs, and/or expenses to CITY, then UNIVERSITY shall reimburse CITY for the portion of such judgment(s), costs and/or expenses attributed to UNIVERSITY as a result of such determination of UNIVERSITY's sole negligence. Insurance Requirements for CITY and UNNERSITY. CITY's liability coverage is provided through the Idaho Counties Risk Management Program (ICRMP). UNIVERSITY's liability coverage is provided through a self-funded liability program administered by the State of Idaho Office of Insurance Management. Limits of liability with respect to claims covered by the Idaho Tort Claims Act, are five hundred thousand dollars ($500,000) Combined Single Limits, which amount is CITY's and UNIVERSITY's lirrilt of liability under the Idaho Tort Claims Act. CITY and UNIVERSITY shall maintain their insurance through ICRMP and the State ofldaho Office of Insurance Management, throughout the term hereof. Notification. CITY and UNIVERSITY shall notify the other party of any claim arising under, or otherwise related to, the provisions hereof. CITY and UNIVERSITY shall cooperate with the other party in defense of such claims. CITY and UNIVERSITY shall each provide a Certificate of Insurance or a Certificate of Financial Responsibility to the other party, evidencing coverage pursuant hereto. Notice of claim or incident shall be given to the representative for the party by the party receiving such claim or incident. Indemnification by Third Parties. lTC SITE LEASE - Page 4 ---PAGE BREAK--- Discussion Draft - 201 1-07 1 1 Subtenants or contractors of CITY (other than UNIVERSITY) shall be required to indemnify, defend and hold the State of Idaho, and UNIVERSITY and its governing board, employees, agents, and assigns harmless from and against any and all claims, losses, damages, injuries, liabilities and all costs, including attorneys fees, court costs and expenses and liabilities incurred in or from any such claim, arising from any breach or default in the performance of any obligation on CITY's or subtenant's! contractor's part to be performed under the terms of this Site Lease, or arising from any act, negligence or the failure to act of subtenant or contractor, or any agents, contractors, employees, invitees or guests thereof. CITY shall require any subtenants or contractors to provide indemnification to UNIVERSITY, as provided above. Insurance by Third Parties. During the Term of this Site Lease, subtenants or contractors of CITY shall be required to carry the types and limits of insurance shown in this insurance clause, and to provide UNIVERSITY with a Certificate of Insurance. At any time, UNIVERSITY reserves the right to amend insurance requirements or require a security bond, if circumstances warrant such action. Additionally and at its option, UNIVERSITY may request certified copies of required policies and endorsements. Such copies shall be provided within (1 0) ten days of UNIVERSITY's request. All insurers shall have a Best's rating of A V or better and be licensed and admitted in Idaho. CITY shall furnish UNIVERSITY with a certificate of insurance executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements set forth below. All policies required shall be written as primary policies and not contributing to nor in excess of any coverage UNIVERSITY may choose to maintain. All certificates shall provide for thirty (30) days' written notice to UNIVERSITY prior to cancellation or material change of any insurance referred to therein. All policies shall name State of Idaho and the Regents of the University of Idaho as an additional insured. Certificates shall be mailed to: P 0 Box 443 162, Moscow, Idaho, 83844-3 162, Attn: Risk Management. All policies shall contain waiver of subrogation coverage or endorsements. Failure of UNIVERSITY to demand such certificate or other evidence of full compliance with these insurance requirements or failure of UNIVERSITY to identify a deficiency from evidence that is provided shall not be construed as a waiver of CITY's obligation to maintain such insurance. Failure to maintain the required insurance may result in termination of this Site Lease at UNIVERSITY's option. By requiring insurance herein, UNIVERSITY does not represent that coverage and limits will necessarily be adequate to protect CITY, and such coverage and limits shall not be deemed as a limitation on CITY's liability under the indemnities granted to UNIVERSITY in this Site Lease. CITY shall require any subtenants or contractors to comply with the insurance provisions of this Site Lease. In the event CITY is not occupying space and is enforcing the subtenant's compliance with these insurance provisions, CITY shall not be responsible, as a requirement of this Site Lease, to maintain the specific insurance required below: CITY shall obtain or require subtenants (other than UNIVERSITY) or contractors to obtain insurance of the types and in the amounts described below: lTC SITE LEASE -Page 5 ---PAGE BREAK--- Discussion Draft - 20 1 1-07 1 1 1 . Commercial General and Umbrella Liability Insurance. CITY (or subtenant) shall maintain Commercial General Liability (CGL) and, if necessary, commercial umbrella insurance with a limit of not less than $1,000,000 each occurrence and in the aggregate. If such CGL insurance contains a general aggregate limit, it shall apply separately to the Demised Premises and shall not be less than $1,000,000. CGL insurance shall be written on standard ISO occurrence form (or a substitute form providing equivalent coverage) and shall cover liability arising from premises, operations, independent contr:actors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract including the tort liability of another assumed in a business contract. 2. Commercial Auto Insurance. CITY (or subtenant) shall maintain a Commercial Auto policy with a Combined Single Limit of $1,000,000; Underinsured and Uninsured Motorists limit of $1,000,000; Comprehensive; Collision; and a Medical Payments limit of$10,000. Coverage shall include Non-Owned and Hired Car coverage. 3. Personal property. CITY (or subtenant) shall purchase insurance to cover CITY's (or subtenant's) personal property. In no event shall UNIVERSITY be liable for any damage to or loss of personal property sustained by CITY (or subtenant), whether or not insured, even if such loss is caused by the negligence of UNIVERSITY, its employees, officers or agents. 4. Workers' Compensation. Where required by law, CITY (or subtenant) shall maintain .all statutorily required coverages including Employer's Liability. L. Hazardous/Materials: CITY shall not, nor shall it allow others to, accumulate, use, or store on the Premises materials classified as hazardous, biomedical or toxic waste except in compliance with environmental laws and other applicable state, federal, or local laws, rules or regulations. CITY shall comply and require its contractors to comply with any lawful order by an entity reposed with authority to regulate the use, accumulation, storage or disposal of hazardous waste. CITY shall not be responsible for any of such materials placed on the Premises by or through the UNIVERSITY prior to or during this Site Lease. As used herein, the term "environmental laws, shall mean the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended (CERCLA), the Resource Conservation Recovery Act, as amended (RCRA), the Federal Water Pollution Control Act, the Clean Air Act and any similar local, state or federal law, rule, ordinance or regulation. As used herein, the term "hazardous materials'1 shall mean any hazardous substance, pollutants, contaminants, or other hazardous waste or toxic substances defmed in any environmental laws including, without limitation, petroleum and petroleum products, asbestos and asbestos containing materials, PCBs and urea-formaldehyde. In the event CITY or its contractors or subcontractors placed hazardous materials in violation of any environmental laws on the Premises during or prior to the date of the Site Lease, CITY shall, at CITY1s cost and expense, cause such testing to be performed and shall cause any such hazardous materials to be removed, remediated or abated in compliance with all environmental laws. CITY hereby agrees to indemnify, defend, and hold UNIVERSITY harmless from and against any and all claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees), causes of action and judgments arising out of or ITC SITE LEASE - Page 6 ---PAGE BREAK--- Discussion Draft - 201 1-071 1 related to hazardous materials existing in, or under the Premises caused by CITY or its contractors during or prior to the date of this Site Lease. M. Property Encumbrances: This Site Lease is subject to all applicable restrictions and all limitations of record, and is subject to any and all easements for public utilities of record. N. Waste and Nuisance Prohibited: CITY shall comply, during the term of this Site Lease, with all applicable laws affecting the Premises, the violation of which might result in any penalty assessed upon the UNIVERSITY or forfeiture of the UNIVERSITY's title to the Premises. CITY shall not commit, or suffer to be committed, any waste on the Premises or improvements, or any nuisance. 0. Remedies and Forbearance/Waivers: No delay or omission on the part of the UNIVERSITY or CITY to exercise any right or power granted herein shall impair any such right or power nor shall be construed as a waiver thereof, and every such right or power may nevertheless be exercised. P. Officials, Agents. and Employees Not Personally Liable: It is agreed that in no event shall any official, officer, employee or agent of the UNNERSITY, nor any official, officer, employee or agent of the CITY be in any way personally liable or responsible for any covenant or agreement herein contained, whether expressed or implied, nor for any statement, representation or warranty made herein or in any way connected with this Site Lease. Q. Quiet Enjoyment: UNIVERSITY covenants that the CITY shall have the peaceful and quiet enjoyment of the Premises for the term of the Site Lease. R. Right of Entry: CITY shall permit the UNIVERSITY and the agents and employees of the UNIVERSITY to enter into and upon the Premises at all reasonable times for the purpose of inspecting the same for compliance with the terms of this Site Lease; provided, however, that UNIVERSITY shall first give twenty four (24) hours written notice of its desire to inspect the Premises and such inspection shall be accompanied by a designated representative of the CITY. Such notice for right of entry and inspection procedures shall not apply during an emergency in which such notice is impractical and UNNERSITY's access to the Premises is necessary for preservation oflife and/or property. S. Default: In the event UNIVERSITY shall at any time deem CITY to be in breach of this Site Lease, UNIVERSITY shall notify CITY, in writing, stating specifically the nature of any such alleged breach. CITY shall not be deemed to be in default hereunder unless CITY fails to commence to cure any such default within ninety (90) calendar days after its receipt of such written notice and to diligently proceed to cure such default within a reasonable time. In the event of default, UNNERSITY shall have all rights and remedies provided by law. T. Attorney Fees and Costs: In the event that either party to this Site Lease shall enforce any of the provisions hereof in any action at law or in equity the prevailing party to such litigation shall be entitled to recover from the other party or parties all costs and expenses, including reasonable attorney fees, incurred therein. U. Integration: This Site Lease embodies the entire agreement regarding the disposition of the rights associated with the Premises and represents the understanding of the parties relating to lTC SITE LEASE - Page 7 ---PAGE BREAK--- Discussion Draft - 201 1-071 1 the subject matter herein and supersedes all prior understandings relating thereto. This Site Lease shall not be modified except in writing signed by all parties to be bound. V. Execution of Documents: The parties agree that they shall sign or cause to be signed all documents necessary to the effectuation of this Site Lease or any of the provisions herein. W. Authority to Enter Lease: UNIVERSITY has the authority to enter into this Site Lease and the execution, delivery of this Site Lease and the performance of the contractual obligations set forth herein are not in violation of any federal, state, or local statute, ordinance, rule or regulation and that no consents not already obtained are required. Individuals signing on behalf of UNIVERSITY and CITY have the delegated authority to obligate their respective entity as provided by this Lease. X. Notices: All notices under this Site Lease shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the date of mailing if mailed to the party to whom notice is to be given by registered or certified United States mail, postage prepaid, and properly addressed as follows: If to the UNIVERSITY: Board of Regents of the University ofldaho Attn: Vice President for Finance and Administration University of Idaho Moscow ID 8 3 844-3 168 If to the CITY: City of Moscow Attn: City Supervisor PO Box 9203 Moscow ID 83843 The addresses provided above may be changed and additional addresses or notices may be specified from time to time by notice given in writing in accordance with this Section. Y. Binding Effect: This Site Lease shall be binding upon and shall inure to the benefit of the heirs, personal representatives, successors and assigns of the parties. Z. Severability: If any term or provision of this Site Lease or the application of it to any person or entity or circumstances shall to any extent be invalid or unenforceable, the remainder of this Site Lease or the application of such term or provision to persons, entities or circumstances, other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Site Lease shall be valid and shall be enforced to the extent permitted by law. AA. Headings: Section headings contained herein are for convenience and reference and are not intended to define or limit the scope of any provisions of this Site Lease. BB. Counterparts: This Site Lease may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. CC. Time of the Essence: Time is of the essence of this Site Lease, and of each and every covenant, term, condition, and provisions thereof. lTC SITE LEASE - Page 8 ---PAGE BREAK--- Discussion Draft - 201 1-071 1 DD. Nondiscrimination and Affirmative Action: UNIVERSITY and CITY shall not discriminate against any employee or applicant for employment in the performance of this Site Lease, with respect to tenure, terms, conditions or privileges of employment, or any matter directly or indirectly related to employment, because of race, sex, color, religion, age, status as disabled or a veteran, or physical or mental handicaps, national origin or ancestry. Breach of this covenant may be regarded as a material breach of this Site Lease. UNIVERSITY and CITY certify that they do not, and will not maintain segregated facilities or accommodations on the basis of race, color, religion or national origin. Regarding any position for which an employee or an applicant is qualified, the UNIVERSITY and CITY agree to take affirmative action to employ, train, advance in employment, and retain individuals in accordance with applicable laws and regulations including: 1 . For nondiscrimination based on race, color, religion, sex or national origin, this includes, but is not limited to, the U.S. Constitution, and Parts II and IV of Executive Order 1 1246, September 24, 1 965 (30 FR 12319). Grantee disputes related to compliance with its obligations shall be handled according to the rules, regulations, and relevant orders of the Secretary of Labor (See 41 CFR 60- 1 . 1 2. For nondiscrimination based on Disabled or Vietnam Veterans this includes, but is not limited to, the Vietnam Era Veterans Readjustment Assistance Act of 1972, as amended (3 8 U.S.C. 4012)(the Act); Executive Order 1 1 701, January 24, 1 973 (38 CFR 2675, January 29, 1 973); and the regulations of the Secretary of Labor (41 CFR Part 60-250). 3 . For nondiscrimination based on the Handicapped this includes, but is not limited to, Section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 793)(the Act); Executive Order 1 1 758, January 15, 1974; and the regulations ofthe Secretary of Labor (41 FR Part 60- 741). 4. For nondiscrimination based on Age this includes, but is not limited to, executive Order 1 1 141, February 12, 1964 (29 CFR 2477). 5. UNIVERSITY and CITY shall include the terms of this clause in every subcontract or purchase order exceeding $50,000 and shall act as specified by the Department of Labor to enforce the terms and implement remedies. EE. Venue, Governing Law: Any legal proceeding instituted between the parties shall be in the courts of the County of Latah, State of Idaho, and each of the parties agrees to submit to the jurisdiction of such courts. It is further agreed that this Agreement shall be governed by the laws of the State of Idaho. lTC SITE LEASE -Page 9 ---PAGE BREAK--- Discussion Draft - 201 1-071 1 IN WITNESS WHEREOF, the parties have caused this Site Lease to be executed effective as of the day and year first above written. UNIVERSITY: BOARD OF REGENTS OF THE UNIVERSITY OF IDAHO By _ Ronald E. Smith, Vice President Finance and Administration Date lTC SITE LEASE- Page 10 CITY: CITY OF MOSCOW By Nancy Chaney, Mayor ATTEST: Stephanie Kalasz, City Clerk Date ---PAGE BREAK--- · - X L.U ---PAGE BREAK--- Discussion Draft - 201 1-071 1 EXHIBIT Memorandum of Agreement lTC SITE LEASE - Page 12 ---PAGE BREAK--- Discussion Draft - 201 1-071 1 INTERMODAL TRANSIT CENTER FACILITY LEASE THIS INTERMODAL TRANSIT CENTER FACILITY LEASE (hereinafter "Facility Lease") is entered into as of the day of 201 1 , by and between the Board of Regents of the University of Idaho, a state educational institution and a body politic and corporate organized and existing under the Constitution and laws of the State of Idaho ("UNIVERSITY") and the City of Moscow, Idaho, a municipal corporation of the State of Idaho ("CITY"). I. BASIC PROVISIONS. The following basic provisions are a part of this Lease: A. Lessee. The Board of Regents of the University of Idaho (UNIVERSITY) is the lessee whose current mailing address is Vice President for Finance and Administration, Moscow, Idaho, 83844-3 168. B. Lessor. City of Moscow is the lessor CITY's current mailing address is P 0 Box 9203, Moscow, Idaho, 83843. C. Premises and Common Space. The leased premises are located at 1006 Railroad Street, Moscow, Idaho and comprise approximately 2580 square feet of space exclusively provided to UNIVERSITY under the terms of this Facility Lease ("Premises") and shared use of approximately 2235 additional square feet to be used for public waiting areas, restrooms, hallways and building systems ("COMMON SPACE"), as well as exterior public transportation facilities which includes passenger boarding platforms, overnight bus parking areas and associated walking areas and vehicular access routes ("EXTERIOR COMMON SPACE"), all as shown on the attached Exhibit D. Permitted Use. The use of Premises by UNIVERSITY permittūd under this Facility Lease shall be limited to dedicated office space for the purposes of operating UNIVERSITY's Parking and Transportation Services and COMMON SPACE to provide public waiting areas, restrooms, hallways and building systems associated with UNIVERSITY's uses. E. Initial Term and Commencement Date. This Facility Lease shall commence upon completion of the Intermodal Transit Center (ITC) as evidenced by issuance to CITY of a Certificate of Occupancy from the applicable certifying agency or department (the "Commencement Date") and shall end on December 31, 2051 ("Initial Term"). F. Rent and Operating Costs. As provided by the Memorandum of Agreement ("MOA") between these parties (attached as Exhibit CITY shall provide Premises and associated COMMON SPACE without payment of rent required. UNNERSITY shall pay CITY lTC FACILITY LEASE - I University of Idaho/City of Moscow Intermodal Transit Center Facility Lease ---PAGE BREAK--- Discussion Draft - 20 1 1 -071 1 the amounts as calculated in Section IV of this Facility Lease for custodial services, grounds keeping, exterior snow removal, and utilities ("Operating Costs"). G. Facility Costs. UNIVERSITY and CITY shall pay amounts calculated in Section IV.D. of this Facility Lease for facility repair, maintenance, or replacement materials and services ("Facility Costs"). Facility Costs shall not include repair or replacement due to fire or other casualty loss. II. GRANT OF PREMISES AND POSSESSION. A. Grant of Premises. CITY leases to UNIVERSITY and UNIVERSITY leases from CITY the Premises subject to the terms and conditions of this Facility Lease. B. Possession. CITY shall deliver possession of the Premises (including the rights, privileges, benefits, rights-of-way and easements now or in the future appurtenant to the Premises) to UNIVERSITY on the Commencement Date. During the Initial Term, CITY covenants on behalf of itself and its respective successors and assigns to provide quiet and peaceable possession of the Premises tQ UNIVERSITY, subject to the express provisions of this Facility Lease. III. INITIAL TERM AND RENEWAL TERM. This Lease shall terminate on December 31, 2051. Prior to January 1, 2047, CITY shall determine if CITY intends to continue operating and maintaining the lTC (as such operation, maintenance, and uses are described by the MOA between the two parties) for a period that extends beyond the Initial Term. If so, CITY shall notify UNIVERSITY in writing of its intent to extend the provisions of this Facility Lease for a specified period that shall not extend past December 3 1 , 2091. Upon such notiŬe requesting an extended term, and UNIVERSITY'S determination that CITY has satisfactorily maintained the lTC to an extent that makes the facility functional for CITY and UNIVERSITY'S continued use, UNIVERSITY shall extend the term of the lTC Site Lease for the same period (which shall not extend past December 3 1 , 2091). Such extended term shall be referred to as the "Renewal Term" and all relevant provisions o f the Initial Term shall be in force for such Renewal Term. IV. PAYMENT OF OPERATING AND FACILITY COSTS. A. Payment of Operating and Facility Costs. UNIVERSITY agrees to pay CITY, its share (as provided herein) of Operating Costs and Facility Costs for the Premises, COMMON SPACE and EXTERIOR CO:M1v10N SPACE. B. Date and Form of Payments. Payments for Operating Costs shall be paid and in accordance with Section IV.C. of this Facility Lease. Facility Costs shall be paid periodically as provided in Section IV.D. of this Facility Lease. Each payment is due within fifteen (15) days of CITY's invoice date for Operating Costs and Facility Costs as calculated in accordance with Sections IV.C. and IV.D. of this Facility Lease. All payments shall be made payable to "City of Moscow", and mailed to the attention of "Finance Department, PO Box ITC FACILITY LEASE - 2 University ofldaho/City of Moscow Intennodal Transit Center Facility Lease ---PAGE BREAK--- Discussion Draft - 201 1-071 1 9203, Moscow, Idaho, 83843" or such different address or person as CITY shall provide to UNIVERSITY by written notice. C. Calculation of Operating Costs. CITY shall calculate and submit to UNIVERSITY all Operating Costs for the entire building and EXTERIOR COMMON SPACE shown in the attached Exhibit and multiply that sum by 0.5104 (the multiplier representing UNIVERSITY's share of Operating Costs). D. Determination and Calculation of Facility Costs. CITY shall determine the ITC facility maintenance needs for repair, maintenance, and replacement of COMMON SPACE, EXTERIOR COMMON SPACE, and all building components, systems, and equipment not exclusively located in or serving the Premises nor for those portions of the building spaces dedicated to CITY's exclusive use ("lTC Facility Maintenance Needs"). ITC Facility Maintenance Needs shall not include repair or replacement due to fire or other casualty loss. Determination of ITC Facility Maintenance Needs and an estimate of Facility Costs to meet such lTC Facility Maintenance Needs, and proposed lTC maintenance project completion dates shall be presented to UNIVERSITY annually (if any). In consultation with UNIVERSITY, but at the ultimate determination of CITY, CITY shall define project scope, coordinate project completion and make payment for such project to performing vendors, CITY employees, or contractors. Based upon the total project costs to complete the defined work (including reasonable costs for work CITY's employees perform), CITY shall multiply the total cost of such work by 0.5104 (the multiplier representing UNIVERSITY's share of Facility Costs) to determine the payment due from UNIVERSITY for each lTC Facility Maintenance Need addressed and completed. In the event of actual failure or partial failure of any building component, system, or equipment (that is defined above as an lTC Facility Maintenance Need), that in the CITY's determination requires immediate repair or replacement, CITY shall arrange for the immediate completion and payment of such work. Based upon the total reported costs to complete this work, CITY shall multiply the total cost of such work by 0.5104 (the multiplier representing UNIVERSITY's share of Facility Costs for the building) to determine the payment due from UNIVERSITY for such project. V. OPERATION OF PREMISES. A. UNIVERSITY's Use of Premises. The Premises shall be occupied and used by UNIVERSITY only for the Permitted Use and for no other purpose. UNIVERSITY will not commit waste on the Premises, CO:MMON SPACE or EXTERIOR COMMON SPACE, or disfigure or deface any part of the building, grounds, or any other part or portion of the Premises, including fixtures, carpeting, or wall coverings (painted surfaces of the Premises). UNIVERSITY further covenants that it will repair and maintain the furnishings fixtures and equipment exclusively occurring within the Premises (but not including components, systems, and equipment that serve the overall building, such as portions of mechanical, electrical and plumbing systems that serve the lTC facility outside the Premises) , at UNIVERSITY's effort and expense throughout the Initial Term. B. CITY's Obligations. Subject to the provisions of Section IV.D. of this Facility Lease for UNIVERSITY's payment of its share of Facility Costs, CITY shall provide repair, lTC FACILITY LEASE- 3 University of Idaho/City of Moscow Interrnodal Transit Center Facility Lease ---PAGE BREAK--- Discussion Draft - 201 1-071 1 maintenance, and replacement materials and services to the building, COMJviON SPACE and EXTERIOR COMMON SPACE. CITY is not obligated or authorized to perform such work within the Premises, except by separate written agreement with UNIVERSITY describing scope and cost assignment (if agreed upon by both parties). C. Utilities and Custodial Services. Subject to the provisions of Section IV.C. of this Facility Lease, CITY shall be responsible for and shall pay all charges to provider, when due, for water, natural gas, electricity, and any other utility, custodial or other service (excluding phone, internet and television) if used upon or furnished to the Premises or COMMON SPACE or EXTERIOR COMMON SPACE. Unless caused by the negligent or intentional acts or omissions of CITY or its representatives, CITY shall not be liable in damages or otherwise for any failure or interruption of any utility service being furnished to the Premises, or (ii) the heating, ventilating and air conditioning system. No such failure or interruption, whether resulting from a casualty or otherwise, shall entitle UNIVERSITY to abate the payments for other Operating or Facility Costs UNIVERSITY is required to make under this Facility Lease. D. Signs. No permanent signs affixed to the Premises shall be installed, replaced or improved by UNIVERSITY without CITY's prior written consent. All such installation, replacement, improvement or maintenance of signs shall be at UNIVERSITY's sole expense. E. Modification to Premises by UN1VERSITY. UNIVERSITY shall neither make nor undertake any modification or improvement to the Premises unless CITY has given its prior written consent, which consent may be withheld, delayed or conditioned as CITY may elect in CITY's discretion. Such modification of the Premises ·shall comply with all of the following requirements: 1. UNIVERSITY shall supply CITY with a complete set of construction drawings for CITY's review and approval at least sixty (60) days prior to UNIVERSITY's proposed commencement of any construction work; and 2. UNIVERSITY may perform construction as provided by Section V.E. or UNIVERSITY shall retain a licensed and bonded contractor, approved in writing by CITY, to perform any construction work (for alterations, repair of fire or casualty, or other construction). The contractor shall carry public liability and property damage insurance, standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements, during the period of construction. F. Hazardous Material Use. UNIVERSITY and CITY shall not cause or permit any Hazardous Material to be brought upon, kept, used, disposed, or discharged, in, on, from or about the Premises, COMMON SPACE, or EXTERIOR COMMON SPACE by their agents, employees, contractors, customers, clients, guests or invitees except as incidental to UNIVERSITY's permitted use of the Premises or CITY's maintenance, repair or other ownership obligations for the Premises, and only in quantities that are less than the quantities that are required to be reported to governmental or other authorities under applicable law or regulations. UNIVERSITY and CITY shall comply with all applicable laws and regulations ITC FACILITY LEASE - 4 University ofldaho/City of Moscow Intennodal Transit Center Facility Lease ---PAGE BREAK--- Discussion Draft - 201 1-071 1 regulating the use, reporting, storage, discharge and disposal of Hazardous Material. As used in this Facility Lease, the term "Hazardous Material" means any hazardous or toxic substance, material or waste that is or becomes regulated by any federal, state or local govenunental authority or political subdivision. The term "Hazardous Material" includes, without limitation, any material or substance that is defined as a "hazardous substance" under applicable law, (ii) petroleum, (iii) asbestos, (iv) biphenyl designated as a ''hazardous substance" pursuant to Section 3 1 1 of the Federal Water Pollution Control Act (33 U.S.C. §1321), (vi) defined as a "hazardous waste" pursuant to Section 1004 of the Solid Waste Disposal Act (42 U.S.C. §6903), (vii) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601), (viii) defined as a "regulated substance" pursuant to Section 9001 of the Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. §6991, (ix) considered a "hazardous chemical substance and mixture" pursuant to Section 6 of the .Toxic Substance Control Act (15 U.S.C. § 2605), or defined as a "pesticide" pursuant to Section 2 of the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136). G. Covenant Against Liens. UNIVERSITY will not directly or indirectly create or cause to be created or to remain, and will discharge, at UNIVERSITY's sole expense, any mechanics' lien or similar lien against the Premises which UNIVERSITY created or caused to be created by UNIVERSITY's work on the Premises. UNIVERSITY has no authority or power to cause or permit any mechanics' lien or similar lien created by act of UNIVERSITY, operation of laws, or otherwise to attach to or be placed upon CITY's title or interest in the Premises. Any lien against UNIVERSITY shall attach . only to UNIVERSITY's leasehold interest in the Premises. UNIVERSITY may contest, at UNIVERSITY's sole expense, any lien, and the lien may remain pending resolution of the challenge. UNNERSITY shall indemnify and hold CITY harmless from any and all loss, damage or expense occasioned by the lien challenge and shall provide such security as CITY may reasonably demand. If the lien is adjudged to be valid, the challenging party shall pay and discharge the lien. CITY will not directly or indirectly create or cause to be created or to remain, and will discharge, at CITY's sole expense, any mechanics' lien or similar lien against the Premises which CITY created or caused to be created by CITY's work on the Premises. H. CITY's Right of Entry. After providing written notice to UNIVERSITY not less than twenty-four (24) hours prior to an intended entry or with UNIVERSITY's verbal consent, CITY and CITY's agents may enter the Premises to inspect the general condition and state of repair of the Premises. CITY's entry may be supervised by UNIVERSITY. In the. event of an emergency arising within the Premises that endangers property or persons, the notice requirement is waived by UNIVERSITY. VI. CHANGES IN THE PARTIES. A Relationship of Parties. Nothing contained in this Facility Lease shall be construed as creating the relationship of principal : or agent, partnership or joint venture. Neither the assignment of Operating Costs nor any other provision of this Facility Lease, nor any act of the parties, shall be deemed to create any relationship other than that of lessor and lessee. lTC FACILITY LEASE - 5 University ofldaho/City of Moscow Intennodal Transit Center Facility Lease ---PAGE BREAK--- Discussion Draft - 201 1-071 1 B. Successors and Assigns. This Facility Lease shall benefit and bind the successors and permitted assigns of CITY and UNIVERSITY. C. Prohibition on UNIVERSITY Assignment. UNIVERSITY may not assign all or a part ofthis Facility Lease unless UNIVERSITY first obtains the written consent of CITY. VII. LOSS AND DAMAGE TO PREMISES. A. UNIVERSITY's Possession at Own Risk. UNIVERSITY covenants and agrees that neither CITY nor its agents shall be liable in any way for personal injuries or property damages sustained by UNIVERSITY, its employees, visitors, or by any occupant of the leased Premises, or by any other persons or organizations claiming through UNIVERSITY, resulting from the condition, state of repair, or use of the Premises, COMMON SPACE or EXTERIOR COMMON SPACE, or any part thereof, or of any equipment therein or appurtenances thereto, or resulting directly or indirectly from any act or negligence of UNIVERSITY or of any other person or persons excepting the CITY or its agent. Neither CITY nor its agents shall be liable for damage to UNIVERSITY's personal property or for any loss suffered by UNIVERSITY caused in any manner whatsoever. B. Insurance. CITY shall insure the building, including the Premises, COMMON SPACE and EXTERIOR COMMON SPACE through CITY'S policy with the Idaho Counties Risk Management Program (ICRMP) in the same or substantially similar fashion as CITY insures its other buildings. UNIVERSITY shall have no obligation to obtain or pay for such insurance. C. UNIVERSITY's Insurance. No insurance is provided by CITY for UNIVERSITY's personal property or for UNIVERSITY's permitted business operations. UNIVERSITY shall insure and be solely responsible for any and all lines of insurance coverage for business operations, and for personal property, of every kind or nature, which is not part of the Premises. UNIVERSITY shall, at UNIVERSITY's sole cost and expense, either obtain the insurance UNIVERSITY and CITY deem advisable, or shall be deemed to be self-insured. UNIVERSITY waives all rights on any insurance purchased by, or risk funding arrangements of, CITY. D. Waiver of Subrogation. To the extent permitted by their respective insurers, CITY and UNIVERSITY (and each person claiming an interest in the Premises through CITY or UNIVERSITY) release and waive their entire right of recovery against the other for direct, incidental or consequential or other loss or damage arising out of, or incident to, the perils covered by insurance carried by each party, whether due to the negligence of CITY or UNIVERSITY. If necessary, all insurance policies may be endorsed to evidence this waiver. E. Effect of One Party's Actions on Other Party's Insurance. Neither party shall do or permit to be done anything that shall invalidate any insurance carried by the other party. F. Damage or Destruction of Premises. In the event of damage to or destruction of the improvements to the Premises by frre or other casualty, CITY shall either repair such damage or cause such damage to be repaired, in which event the Facility Lease shall ITC FACILITY LEASE - 6 University ofidaho/City of Moscow Intermodal Transit Center Facility Lease ---PAGE BREAK--- Discussion Draft - 201 1-071 1 continue in full force and effect, or if agreeable to UNIVERSITY terminate the Facility Lease upon written concurrence from UNIVERSITY within ninety (90) days of the damage. In the event the damage is caused by the negligence or willful act or omission of the UNIVERSITY, UNIVERSITY shall be obligated to provide insurance proceeds to the extent such proceeds are available to repair, restore or rebuild and UNIVERSITY shall deliver all insurance proceeds and/or assign any causes of action it may possess against any person or entity to CITY. If UNIVERSITY elects to proceed under subsection above, during the period of damage, distribution, repair, restoration or rebuilding, this Facility Lease shall remain in effect. VIII. DEFAULT BY UNIVERSITY OR CITY. A. Default by UNIVERSITY. UNIVERSITY shall be in default under this Facility Lease if any of the following occur: UNIVERSITY fails to pay when due any Operating or Facility Cost or other payment required to be paid by UNIVERSITY under this Facility Lease; (ii) UNIVERSITY fails to perform or observe any other covenant, agreement or condition which UNIVERSITY is required to perform or observe and the failure shall not be cured within thirty (30) calendar days after delivery of written notice to UNIVERSITY ofthe failure (or, ifthe cure cannot be effected within the thirty (30) day period, then within the additional period of time as may be required to cure the default provided UNIVERSITY is diligently and continuously pursuing the cure to completion). B. Remedies of CITY. In the event of UNIVERSITY's default as set forth in Section VIlLA, CITY shall have the remedies set forth in this Facility Lease by the giving of prior written notice to UNIVERSITY at any time during the continuance of the event of default. CITY's remedies are cumulative and not alternative remedies. in equity. 1. Legal and Equitable Remedies. CITY shall have all remedies available at law or 2. Termination of Lease. In the event of a UNIVERSITY default, in addition to all other rights and remedies available to CITY in law and equity, CITY may change the locks and lock the doors to the Premises and exclude UNIVERSITY from the Premises, (ii) enter the Premises and remove all persons and property therefrom without being liable for prosecution or any claim for damages for the removal, (iii) declare the Facility Lease terminated, (iv) commence litigation for the any amounts due CITY and to become due under the Facility Lease, and for any damages sustained by CITY, hold the UNNERSITY liable for the reasonable cost of obtaining possession of the Premises. 3. Advance. In the event of UNIVERSITY's default, CITY may remedy the default for the account and at the expense of UNIVERSITY. If CITY at any time, by reason of the default, is compelled to pay, or elects to pay, any money or do any act which will require the payment of any money, or is compelled to incur any expense, including reasonable attorneys' fees, in instituting or prosecuting any action or proceeding to enforce CITY's rights under this lTC facility Lease, the money paid by CITY, with interest from the date of payment, shall be additional rent and shall be due from UNIVERSITY to CITY as rent. ITC FACILITY LEASE - 7 University of Idaho/City of Moscow Intermodal Transit Center Facility Lease ---PAGE BREAK--- Discussion Draft - 201 1 -071 1 C. Default by CITY. CITY shall be in default under this Facility Lease if CITY fails to perform or observe any covenant, agreement or condition which CITY is required to perform or observe and the failure shall not be cured within sixty (60) calendar days after delivery of written notice to CITY by UNIVERSITY of the failure (or, if the cure cannot be effected within the sixty-day period, then within the additional period of time as may be required to cure the default provided CITY is diligently and continuously pursuing the cure to completion). D. Remedies of UNIVERSITY. In the event of CITY's default as set forth in Section VIII.C., UNIVERSITY shall have all rights provided at law or in equity, except UNIVERSITY expressly waives any right to the abatement or withholding of Operating or Facility Costs payable to CITY under this Facility Lease (because such costs represent reimbursement for actual costs incurred by CITY for services and material provided to UNIVERSITY). UNIVERSITY's obligation to pay Operating and Facility Costs is independent of all other rights, and UNIVERSITY may not withhold payment of such costs from CITY or pay to other parties or into any escrow or holding account because of the default or alleged default of CITY. IX. TERMINATION OF LEASE. A. Events of Termination. This Facility Lease shall terminate upon the occurrence of one or more of the following events: by mutual written agreement of CITY and UNIVERSITY; (ii) by CITY pursuant to the express provisions of this Facility Lease; (iii) upon expiration of the Initial Term or Renewal Term; (iv) by reason of Section VII.F. relating to destruction of the Premises; or UNIVERďITY may unilaterally terminate this Facility Lease by notifying City of early termination in writing not less than three months prior to the noticed early termination date. B. Surrender of Possession. In the event of early termination resulting from default by UNIVERSITY, UNIVERSITY will immediately surrender possession of the Premises to CITY. If possession is not immediately surrendered, CITY may, in compliance with the laws of the State of idaho, re-enter and repossess the Premises and remove all persons or property. UNIVERSITY shall restore the Premises to a broom clean and functional condition, with the exception of ordinary wear and tear, and (ii) alterations, improvements and additions which CITY approved in writing prior to installation and which CITY has not directed UNIVERSITY in writing to remove. If UNIVERSITY fails to properly restore the Premises, CITY, at UNIVERSITY's expense, may restore the Premises in any reasonable manner that CITY may choose: In the event of termination for any other reason, UNIVERSITY shall have no obligation to surrender Premises. X. CLAIMS AND DISPUTES. A. Rights and Remedies Cumulative. Except as expressly provided in this Facility Lease, each party's rights and remedies described in this Facility Lease are cumulative and not alternative remedies. B. Nonwaiver of Remedies. A waiver of any condition stated in this Facility Lease shall not be implied by any neglect of a party to enforce any remedy available by reason of the failure ITC FACILITY LEASE - 8 University ofidaho/City of Moscow Intermodal Transit Center Facility Lease ---PAGE BREAK--- Discussion Draft - 201 1-071 1 to observe or perform the condition. A waiver by a party shall not affect any condition other than the one specified in the waiver and a waiver shall waive a specified condition only for the time and in the manner specifically stated in the waiver. The acceptance by CITY of payment previously due from UNIVERSITY after termination of the Facility Lease or after termination of UNIVERSITY's right of possession shall not alter, diminish, affect or waive the Facility Lease termination, termination of possession, default or remedy. C. Indemnification and Insurance. CITY and UNIVERSITY are each considered a Governmental entity under the Idaho Tort Claims act (Idaho Code 6-901 through 6-929). CITY's liability coverage is provided through the Idaho Counties Risk Management Program (ICRMP). UNIVERSITY's liability coverage is provided through a self-funded liability program administered by the State of Idaho Office of Insurance Management. Limits of liability, and of UNIVERSITY and CITY's indemnification hereunder, with respect to claims covered by the Idaho Tort Claims Act, are five hundred thousand dollars ($500,000) Combined Single Limits, which amount is CITY's and UNNERSITY's limit of liability under the Idaho Tort Claims Act. Nothing in this agreement shall be construed so as to expand the liability of CITY or UNIVERSITY beyond the limit of liability under the Idaho Tort Claims Act for any claims covered by such act. Indemnification between CITY and UNIVERSITY: 1 . Unless otherwise determined by a condition of Federal Transit Administration Tiger II Grant No. ID-79-0001 Key. No. 12905, CITY waives any and all claims and recourse against UNIVERSITY, including the right of contribution for loss and damage to persons or property arising from, growing out of, or in any way connected with or incident to UNIVERSITY's performance hereunder, except for liability arising out of the sole negligence of UNIVERSITY or its officers, agents, or employees. Further, subject to the limits of liability specified in Idaho Code Section 6-901 through Section 6-929, known as the Idaho Tort Claims Act, UNIVERSITY shall indemnify, hold harmless, and defend CITY against any and all claims, demands, damages, costs, expenses, or Hability arising out of UNNERSITY's performance of this MOA, except for liability arising out of the sole negligence of CITY or its officers, agents, or employees. If CITY is determined to be solely negligent by a fmal decision in a court of law and such sole negligence by CITY directly results in judgrnent(s), costs, and/or expenses to UNIVERSITY, then CITY shall reimburse UNIVERSITY for the portion of such judgment(s), costs and/or expenses attributed to CITY as a result of such determination of CITY's sole negligence. 2. Unless otherwise required by a condition of Federal Transit Administration Tiger II Grant No. ID-79-0001 Key No. 12905, UNIVERSITY waives any and all claims and recourse against CITY, including the right of contribution for loss and damage to persons or property arising from, growing out of, or in any way connected with or incident to CITY's performance hereunder, except for liability arising out of the sole negligence of CITY or its officers, agents, or employees. Further, subject to the limits of liability specified in Idaho Code Section 6-901 through Section 6-929, known as the Idaho Tort Claims Act, CITY shall indenmify, hold harmless, and defend UNIVERSITY against any and all claims, demands, damages, costs, ITC FACILITY LEASE - 9 University of Idaho/City of Moscow Intermodal Transit Center Facility Lease ---PAGE BREAK--- Discussion Draft - 201 1-07 1 1 expenses, or liability arising out of CITY's performance of this MOA, except for liability arising out of the sole negligence ofUNIVERSITY or its officers, agents, or employees. If UNIVERSITY is determined to be solely negligent by a final decision in a court of law and such sole negligence by UNIVERSITY directly results in judgment(s), costs, and/or expenses to CITY, then UNNERSITY shaH reimburse CITY for the portion of such judgment(s), costs and/or expenses attributed to UNIVERSITY as a result of such determination ofUNIVERSITY's sole negligence. Insurance Requirements for CITY and UNIVERSITY. CITY's liability coverage is provided through the Idaho Counties Risk Management Program (ICRMP). UNIVERSITY's liability coverage is provided through a self-funded liability program administered by the State of Idaho Office of Insurance Management. Limits of liability with respect to claims covered by the Idaho Tort Claims Act, are five hundred thousand dollars ($500,000) Combined Single Limits, which amount is CITY's and UNIVERSITY's limit of liability under the Idaho Tort Claims Act. CITY and UNIVERSITY shall maintain their insurance through ICRMP and the State of Idaho Office of Insurance Management, throughout the term hereof. Notification. CITY and UNIVERSITY shall notify the other party of any claim arising under, or otherwise related to, the provisions hereof. CITY and UNIVERSITY shall cooperate with the other party in defense of such claims. CITY and UNIVERSITY shall each provide a Certificate of Insurance or a Certificate of Financial Responsibility to the other party, evidencing coverage pursuant hereto. Notice of claim or incident shall be given to the representative for the party by the party receiving such claim or incident. Indemnification by Third Parties. Subtenants or contractors of UNIVERSITY who occupy or perform services on the Premises shall be required to indemnify, defend and hold CITY and its governing board, employees, agents, and assigns harmless from and against any and all claims, losses, damages, injuries, liabilities and all costs, including attorneys fees, court costs and expenses and liabilities incurred in or from any such claim, arising from any breach or default in the performance of any obligation on UNIVERSITY's or subtenant's part to be performed under the terms hereof, or arising from any act, negligence or the failure to act of subtenant, contractor, or any agents, contractors, employees, invitees or guests thereof. Insurance by Third Parties. During the Term hereof this, subtenants or contractors of UNIVERSITY shall be required to carry the types and limits of insurance shown in this insurance clause, and to provide CITY lTC FACILITY LEASE - l 0 University of Idaho/City of Moscow Intennodal Transit Center Facility Lease ---PAGE BREAK--- Discussion Draft - 201 1-071 1 with a Certificate of Insurance. At any time, CITY reserves the right to amend insurance requirements or require a security bond, if circumstances warrant such action. Additionally and at its option, CITY may request certified copies of required policies and endorsements. Such copies shall be provided within (1 0) ten days of CITY's request. All insurers shall have a Best's rating of AV or better and be licensed and admitted in Idaho. UNIVERSITY shall furnish CITY with a certificate of insurance executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements set forth below. All policies required shall be written as primary policies and not contributing to nor in excess of any coverage CITY may choose to maintain. All certificates shall provide for thirty (30) days' written notice to CITY prior to cancellation or material change of any insurance referred to therein. All policies shall name State of Idaho and the Regents of the University of Idaho as an additional insured. Certificates shall be mailed to: P 0 Box 443162, Moscow, Idaho, 83844-3 162, Attn: Risk Management. All policies shall contain waiver of subrogation coverage or endorsements. Failure of CITY to demand such certificate or other evidence of full compliance with these insurance requirements or failure of CITY to identify a deficiency from evidence that is provided shall not be construed as a waiver of UNIVERITY's obligation to maintain such insurance. Failure to maintain the required insurance may result in termination of this Site Lease at CITY's option. By requiring insurance herein, CITY does not represent that coverage and limits will necessarily be adequate to protect UNIVERISTY, and such coverage and limits shall not be deemed as a limitation on UNIVERSITY's liability under the indemnities granted to CITY in this Site Lease. UNIVERSITY shall require any subtenants or contractors to comply with the insurance provisions of this Site Lease. In the event UNNERSITY is not occupying space and is enforcing the subtenant's compliance with these insurance provisions, UNIVERSITY shall not be responsible, as a requirement of this Site Lease, to maintain the specific insurance required below: UNNERSITY shall obtain or require subtenants or contractors to obtain insurance of the types and in the amounts described below: 1. Commercial General and Umbrella Liability Insurance. UNIVERSITY (or subtenant/contractor) shall maintain Commercial General Liability (CGL) and, if necessary, commercial umbrella insurance with a limit of not less than $1,000,000 each occurrence and in the aggregate. If such CGL insurance contains a general aggregate limit, it shall apply separately to the Demised Premises and shall not be less than $1,000,000. COL insurance shall be written on standard ISO occurrence form (or a substitute form providing equivalent coverage) and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract including the tort liability of another assumed in a business contract. 2. Commercial Auto Insurance. UNIVERSITY (or subtenant/contractor) shall maintain a Commercial Auto policy with a Combined Single Limit of $1,000,000; Underinsured and Uninsured Motorists limit of $1 ,000,000; Comprehensive; Collision; and a Medical Payments limit of$ 10,000. Coverage shall include Non-Owned and Hired Car coverage. 3. Personal property. UNIVERSITY (or subtenant/contractor) shall purchase insurance to cover UNIVERSITY 's (or subtenant's) personal property. In no event shall CITY be liable for any damage to or loss of personal property sustained by UNNERSITY (or subtenant/contractor), lTC FACILITY LEASE - 1 1 University of Idaho/City of Moscow Intermodal Transit Center Facility Lease ---PAGE BREAK--- Discussion Draft - 201 1-071 1 whether or not insured, even if such loss is caused by the negligence of UNIVERSITY, its employees, officers or agents. 4. Workers' Compensation. Where required by law, UNIVERSITY (or subtenant/contractor) shall maintain all statutorily required coverages including Employer's Liability. D. Hazardous Material Indemnification 1 . By CITY. During and after the Term of this Facility Lease, CITY shall indemnify and hold UNIVERSITY harmless from any and all costs (including costs of remediation or clean-up and any proceedings related thereto), claims, judgments, damages, penalties, fines, liabilities or losses (including, without limitation, diminution in value of the Premises, damages for the loss or restriction on use of rentable or useable space or any amenity of the Premises, damages arising from any adverse impact on marketing of space, and sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees) which arise during or after the Term as a result of CITY's breach of the obligations stated in Section V.F. regarding Hazardous Material. This indemnification of UNIVERSITY by CITY includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal, or restoration work required by any federal, state, or local governmental agency or political subdivision because of Hazardous Material present in the soil or ground water on or under the Premises. Without limiting the preceding, if the presence of any Hazardous Material on the Premises caused or permitted by CITY results in any contamination of the Premises, CITY shall take all actions at CITY's sole expense as are necessary to return the Premises to the condition existing prior to the introduction of any Hazardous Material to the Premises. 2. By UNIVERSITY. During and after the Term of this Facility Lease, UNIVERSITY shall indemnify and hold CITY harmless from any and all costs (including costs of remediation or clean-up and any proceedings related thereto), claims, judgments, damages, penalties, fines, liabilities or losses .(including, without limitation, diminution in value of the Premises, damages for the loss or restriction on use of rentable or useable space or any amenity of the Premises, damages arising from any adverse impact on marketing of space, and sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees) which arise during or after the Term as a result of UNIVERSITY's breach of the obligations stated in Section V.F. regarding Hazardous Material. This indemnification of CITY by UNIVERSITY includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal, or restoration work required by any federal, state, or local governmental agency or political subdivision because of Hazardous Material present in the soil or ground water on or under the Premises. Without limiting the preceding, if the presence of any Hazardous Material on the Premises caused or permitted by UNIVERSITY results in any contamination of the Premises, UNIVERSITY shall take all actions at UNIVERSITY's sole expense as are necessary to return the Premises to the condition existing prior to the introduction of any Hazardous Material to the Premises. lTC FACILITY LEASE - 12 University of Idaho/City of Moscow Intennodal Transit Center Facility Lease ---PAGE BREAK--- Discussion Draft - 201 1-071 1 E. F. Dispute Resolution. If the parties disagree regarding the performance of this Facility Lease, then the parties agree to engage in direct discussions to settle the dispute. If the disagreement cannot be settled by direct discussions, then the parties may agree to attempt to settle the disagreement in an amicable manner by mediation. Thereafter, any unresolved disagreement arising from or relating to this Facility Lease or a breach of this Facility Lease shall be resolved as provided by law. The provisions of this Section X.F. shall not apply to disputes arising from UNIVERSITY's default in the performance of any obligation to make Operating or Facility Cost payments as provided herein. G. Attorney Fees and Costs. If a party is in default under this Facility Lease, then the defaulting party shall pay to the other party reasonable attorney fees and costs incurred by the other party after default and referral to an attorney and (ii) incurred by the prevailing party in any litigation (including any attorney fees on appeal). H. Interpretation. The law of the State of Idaho shall govern this Facility Lease. The courts in the State of Idaho shall have exclusive jurisdiction. The invalidity of any portion of this Facility Lease shall not affect the validity of any other portion of this Facility Lease. This Facility Lease constitutes the entire, completely integrated agreement regarding the lease of Premises from CITY to UNIVERSITY and supersedes all prior memoranda, correspondence, conversations and negotiations in regard to such facility leasing. Whenever the consent of either party is required to an action under this Facility Lease, consent shall not be unreasonably withheld or delayed. XI. GENERAL PROVISIONS. A. Notices. All notices under this Facility Lease shall be in writing and shall be deemed to be delivered on the date of delivery if delivered in person or by fax, or on the date of receipt if delivered by U.S. Mail or express courier. Proof of delivery shall be by affidavit of personal delivery, machine generated confirmation of fax transmission, or return receipt issued by U.S. Postal Service or express courier. Notices shall be addressed to the address set forth below: LESSOR: City of Moscow P 0 Box 9203 Moscow, Idaho 83843 LESSEE: Board ofRegents ofthe University ofldaho Vice President for Finance and Administration P 0 Box 443 168 Moscow, Idaho 83844-3 168 lTC FACILITY LEASE - 1 3 University of Idaho/City of Moscow Intennodal Transit Center Facility Lease ---PAGE BREAK--- Discussion Draft -201 1-071 1 B. Brokers. Each party hereto represents and warrants to the other party that the representing party has no arrangement with any realtor, broker or agent in connection with the negotiations of this Facility Lease. Each party agrees to defend, indemnify and hold the other party harmless from any cost, expense or liability for any compensation, commission or charges claimed by any realtor, broker or agent arising out of the actions of the indemnifying party with respect to this Facility Lease. C. Non-recording. This Facility Lease shall not be recorded. A Memorandum of Lease executed by both parties hereto may be recorded. D. Time is of the Essence. Time is of the essence with respect to the obligations to be performed under this Facility Lease. E. UNIVERSITY and CITY understand that the leased premises has been funded in whole or in part with funds from the Federal Transit Administration (FTA), U. S. Department of Transportation. As such, the following provisions apply: Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 ofthe Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the UNIVERSITY and CITY agree that they will not discriminate against any person in the United States from participating in, denied the benefits of or otherwise subject that person to discrimination under the use, benefit, participation, enjoyment or treatment of the subject Premises, or an employee or applicant for employment, because of race, color, creed, national origin, sex, age, or disability. In addition, the UNIVERSITY and CITY agree to comply with applicable Federal implementing regulations and other implementing requirements FT A may issue. Egual Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: Race. Color. Creed. National Origin. Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S. C. § 2000e, and Federal transit laws at 49 U.S. C. § 5332, the UNIVERSITY and CITY agree to comply with all applicable equal employment opportunity requirements ofU.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.P.R. Parts 60 et seq (which implement Executive Order No. 1 1246, ''Equal Employment Opportunity," as amended by Executive Order No. 1 1375, ''Amending Executive Order 1 1246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect the lease of the Premises during the course of this lease. UNIVERSITY and CITY agree to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or ITC FACILITY LEASE - 14 University ofldaho/City of Moscow Intermodal Transit Center Facility Lease ---PAGE BREAK--- Discussion Draft - 201 1-071 1 termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, UNIVERSITY and CITY agree to comply with any implementing requirements FT A may issue. Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1 967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332, UNIVERSITY and CITY agree to refrain from discrimination against present and prospective employees for reason of age. In addition, UNIVERSITY and CITY agree to comply with any implementing requirements FTA may issue. Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 121 12, UNIVERSITY and CITY agree that they will comply with the requirements ofU.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, UNIVERSITY and CITY agree to comply with any implementing requirements FTA may issue. UNIVERSITY and CITY also agree to include these requirements in each sublease issued on the Premises. F. Non-use of Names and Trademarks. No party to this Facility Lease shall, without express written consent in each case, use any name, trade name, trademark, or other designation of any other party hereto (including contraction, abbreviation, or simulation) in advertising, publicity, promotional, or similar activities or context. XII. SIGNATURES UNIVERSITY Board of Regents of the University of Idaho Ronald E. Smith, Vice President for Finance and Administration Dated: lTC FACILITY LEASE - 1 5 University of Idaho/City of Moscow Intermodal Transit Center Facility Lease CITY City of Moscow, Idaho Nancy Chaney, Mayor ATTEST: Stephanie Kalasz, City Clerk ---PAGE BREAK--- c ro > u ro Ll..  I +J _Q X UJ Q) u ro Q_ V) V) c QJ 0 V) E E E QJ o· u , , < · ' ' b· , ,