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FILED FOR RECORD AT REQllliST OF AND WHEN RECORDED RETURN TO: Verizon Wireless Attn: Network Real Estate- MIS 221 3350 161 ''Avenue SE Bellevue, W A 98008 MEMORANDUM OF WIRELESS COMMUNICATIONS FACILTY AGREEMENT Grantor: Grantee: Legal Description: Assessor's Tax ParcellD#: Reference # (if applicable): BEL 270164vl 520:51"2782 LEW MOUNTA!NV!EW Bdlevue/OS/06/04 City of Moscow, Idaho, a municipal corporation of the State ofidaho Cellco Partnership d/b/a Verizon Wireless A parcel of Land located in the SW of the NE \14 of S8, T39N, R5 WBM Latah County, Idaho Official legal description as Exhibit A N/A I I I I I I ---PAGE BREAK--- SITE NAME: LEW MOUNTAINVIEW MEMORANDUM OF WIRELESS COMMUNICATIONS FACILTY AGREEMENT THIS MEMORANDUM OF WIRELESS COMMUNICATIONS FACILITY AGREEMENT evidences that a Wireless Communications Facility Agreement ("Agreement") was entered into as of 5;p+. 1 , 200'/ by and between City of Moscow, Idaho, a municipal corporation of the State ofidaho ("City''), and Cell co Partnership vritten notice. BEL 259914v3 5205 i -2782 4 LEW Mountainview 08/06/04 ---PAGE BREAK--- 6.7 6.8 Section 7. 7.1 7.2 7.3 Section 8. LESSEE shall be solely responsible for inspecting the ladder system on CITY's water tower for safety before allowing its employees or contractors to use the ladder system. CITY DOES NOT MAKE AND WILL NOT MAKE ANY REPRESENTATION WHATSOEVER AS TO THE SAFETY CONDITION OF THE LADDER SYSTEM ON CITY'S WATER TOWER FOR THE PURPOSE OF THE USE INTENDED BY LESSEE OR ANYONE ACTING FOR OR O N BEHALF OF LESSEE Under-grounding of electrical service to serve the WCF permitted under this Agreement is required by this Agreement on the Property and in the public right of-way serving the entrance to said Property. All costs of obtaining electrical service to the WCF and the under-grounding thereof as herein required shall be the sole obligation of LESSEE and not CITY. The location of the electrical service meter shall be approved by CITY, not to be unreasonably withheld, conditioned or delayed. Ingress and Egress Rights. CITY grants to LESSEE a nonexclusive right for ingress and egress across CITY's Property on a twenty-four (24) hour a day, seven days a week basis; provided, however, LESSEE shall endeavor to provide CITY with at least seventy-two (72) hours prior notice to CITY for any scheduled or routine maintenance, construction, servicing, and/or repair. In case of an emergency, LESSEE shall notify CITY of entry as soon as practicable following LESSEE's first notice of such emergency. LESSEE upon written permission from Public Works Director or Designee, may, at LESSEE's own cost, make such improvements as it may deem necessary in and to any access way controlled by CITY used for access to and egress from the WCF. LESSEE shall, at its own cost, repair to CITY standards any damage resulting from its use. Should LESSEE require the assistance of CITY or the presence of CITY employees, agents, contractors, or subcontractors, in support of construction, maintenance, servicing, repair, and/or removal of it's WCF, LESSEE shall compensate CITY for reasonable costs and services rendered by CITY. Nonexclusive Grant. Subject to CITY's obligations to LESSEE as set forth in Section 18 herein, this Agreement and the permission granted hereunder shall not in any manner prevent CITY from entering into other agreements for uses similar to the use herein permitted or prevent CITY from granting or entering into other agreements for uses on, under, across, or over the Property of this Agreement whether or not those uses be similar to the use permitted by this Agreement. Subject to the provisions of Section 6.6 herein, this Agreement shall in no way prevent or prohibit CITY from using said Property as CITY in its sole discretion considers appropriate, or affect its jurisdiction over it. CITY shall retain the exclusive power to make all necessary changes, BEL 259914v3 52051-2782 5 LEW Mountainview 08/06/04 ---PAGE BREAK--- relocations, repairs, maintenance, establishment, and improvement of and to CITY facilities within said property. It is understood that the primary use of the CITY's water tower is a public use, which is to provide water to water users, and LESSEE's use of the CITY's water tower is secondary and subordinate to that public use. It is further understood that any agreements entered into by the CITY and parties not a party to this Agreement will not unreasonably interfere with the use permitted to LESSEE under this Agreement. Section 9. Insurance. LESSEE shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges and authority granted hereunder to LESSEE its agents, representatives or employees. Throughout the term of this Agreement, LESSEE shall provide an insurance certificate, which shall name the CITY, its officers, elected officials, agents employees, representatives, engineers, consultants, and volunteers as additional insureds, to the CITY for its inspection and approval prior to the commencement of any work or installation of any facilities pursuant to this Agreement, and such insurance certificate shall evidence: 9.a. Automobile Liability insurance with limits no less than $1,000,000 Combined Single Limit per accident for bodily injury and property damage; and 9.b. Commercial General Liability insurance, written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and $2,000,000 aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations; broad form property damage; explosion, collapse and underground (XCU); and Workers Compensation (as per statutory requirement) and employers liability with a minimum limit of $1,000,000 per occurrence. The above coverage may be provided, in part, through an umbrella policy, with the approval of CITY. Payment of any deductible or self-insured retention shall be the sole responsibility of LESSEE. The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, elected officials, agents, employees, representatives, consultants or volunteers. In addition, the insurance policy shall contain a clause to the effect that coverage shall apply separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurers liability. LESSEE's insurance shall be primary insurance as respects CITY, its officers, officials, employees, and volunteers for LESSEE's negligence. Any insurance maintained by CITY for or by its officers, officials, employees or volunteers shall be in excess of LESSEE's insurance and shall not contribute with it in this respect. LESSEE's insurance coverage shall not be canceled, suspended, voided and/or reduced in coverage or limits BEL 2599!4v3 52051 ê2782 LEW Mountainview 08/06/04 6 ---PAGE BREAK--- except after thirty (30) days prior written notice by certified mail, return receipt requested, to CITY. The insurance certificate shall contain language evidencing these requirements. Section 10. Indemnification. LESSEE hereby releases, covenants not to bring suit and agrees to indemnify, defend, and hold harmless CITY, its officers, employees, agents and representatives from any and all claims, costs, judgments, awards or liability to any person arising from the installation, use, operation, maintenance, repair, interruption of service, or removal of LESSEE's WCF permitted under the terms of this Agreement except for claims based on the negligence or the willful misconduct of CITY, EXCEPT THAT LESSEE SHALL HOLD CITY HARMLESS AND INDEMNIFY IT AGAINST ANY LOSS FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE LADDER SYSTEM ON CITY'S WATER TOWER BY A NYONE WHEN REQUESTED BY LESSEE TO INSTALL, USE, MAINTAIN, REPAIR, OR REMOVE THE ANTENNA FACILITIES OF LESSEE'S WCF. CITY hereby releases covenants not to bring suit and agrees to indemnify, defend, and hold harmless LESSEE, its affiliates, subsidiaries, directors, officers, employees, agents and representatives from any and all claims, costs, judgments, awards or liability to any person, arising from the CITY's use, ownership or occupancy of the Property, including the CITY's or Property's compliance with all applicable environmental or industrial hygiene laws, including without limitation any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene concerns or conditions as may now or at any time hereafter be in effect or the presence or release of hazardous substances on, in, under or about the Property, except to the extent caused by negligent or willful misconduct of LESSEE. Inspection or acceptance by CITY of any work performed by LESSEE at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Section 1 1. Taxes. LESSEE shall pay all taxes, including leasehold excise taxes, if any, and assessments which may be assessed and become due and payable upon the Property, the improvements thereon or operation of LESSEE. It is the intention of the parties hereto that the WCF described in Section 2, and any building, fence, or other improvements of LESSEE's on the Property, shall be, deemed between the parties to be personal property of LESSEE Upon the expiration of this Agreement LESSEE shall remove all of such property and restore the Property to its former condition, excepting normal wear and tear. Section 12. Failure to Construct Facility-Termination. If LESSEE is unable, through no fault of it's own, to obtain within one ( 1) year after the execution of this Agreement by both parties all necessary permits and authorizations to construct and operate the WCF, LESSEE may, by sending written notice directed as specified in Section 16, terminate this Agreement. LESSEE will remove any property it has placed on the Property, and restore the premises to its previous condition, whereupon the parties shall be under BEL 259914vJ 52051-2782 7 LEW Mountain view 08/06/04 ---PAGE BREAK--- no further obligation to each other. Failure to begin construction within six months of the commencement date established in Section 3 and to complete construction in a timely manner shall be basis for termination of the Agreement by CITY, provided that such time limit shall not apply to delays caused by acts of God, strikes, or other occurrences over which LESSEE has no control. Section 13. Right to Terminate Agreement LESSEE shall have the right to terminate this Agreement at any time after the commencement date established in Section 3 upon giving CITY sixty (60) calendar days notice directed as specified in Section 16. LESSEE shall remove all of its property and return the land and CITY's water tower described in Section 2 to its original state, excepting normal wear and tear, within the sixty (60) calendar day period. Section 14. Default; Termination and Forfeiture In the event there is a default by LESSEE with respect to any of the provisions of this Agreement or its obligations under it, including the payment of monetary fee, CITY shall give LESSEE written notice of such default. After receipt of such written notice, LESSEE shall have fifteen (15) days in which to cure any monetary default and thirty (30) days in which to cure any non-monetary default, provided LESSEE shall have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and LESSEE commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. CITY may not maintain any action or effect any remedies for default against LESSEE unless and until LESSEE has failed to cure the san1e within the time periods provided in this Paragraph. If LESSEE willfully violates or fails to comply with any of the provisions of this Agreement, or fails to comply with any notice given LESSEE by CITY under the provisions of this Agreement, then at the election of the Moscow City Council, and after a hearing held upon reasonable notice to LESSEE this Agreement may be terminated by CITY, and LESSEE shall forfeit all rights conferred hereunder and shall restore the Property and CITY's water tower to its original condition. The Council may decide, after consideration of the reasons for LESSEE's failure to comply with the Agreement, to allow LESSEE additional time to cure before such termination. Section 15. Remedies to Enforce Compliance. In addition to any other remedy provided herein, CITY reserves the right to pursue any remedy to compel or force LESSEE and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by CITY shall not prevent CITY from thereafter declaring a forfeiture or revocation for breach of the conditions herein. BEL 259914v3 52051-2782 LEW Mountainview 08i06/04 8 ---PAGE BREAK--- Section 1 6. Notices. All written notices shall be directed to: CITY: LESSEE City of Moscow Attn.: City Supervisor P O Box 9203 Moscow, ID 83843 Cellco Partnership d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 0792 1 Attention: Network Real Estate Delivery of said notice shall be effected in any one of the following manners: a. By personal delivery to and acknowledgment of receipt thereof signed by the receiving party. b. By depositing the notice in the United States mails, in an envelope properly addressed to the address indicated above with postage fully prepaid thereon and mailed certified, return receipt requested. In the event said notice is mailed, it shall be deemed delivered seven days following the deposit thereof in the United States mails. Section 17. Assignment LESSEE may assign this Agreement upon written notice to CITY, provided LESSEE is not in default, to any person or business entity which is authorized pursuant to and licensed by the FCC to operate a wireless communications business, is a parent, subsidiary or affiliate of LESSEE, or is merged or consolidated with LESSEE or purchases more than fifty (50) percent of either an ownership interest in LESSEE or the assets of LESSEE in the " Metropolitan Trading Area" or "Basic Trading Area" (as those terms are defined by the FCC) in which the Property is located. Upon such assignment, LESSEE shall be relieved of all liabilities and obligations hereunder CITY shall look solely to the assignee for performance under this Agreement and all obligations herein. Additionally, provided LESSEE is not in default, LESSEE may, upon notice to CITY, mortgage or grant a security interest in the permission granted under this Agreement and the WCF, and may assign the permission granted under this Agreement and the WCF to any mortgagees or holders of security interests, Including their successors or assigns, (hereinafter collectively referred to as " Mortgagees"), provided such Mortgagees agree to be bound by the terms and provisions of the permission granted under this Agreement. In such event, CITY shall execute such consent to financing as may reasonably be required by Mortgagees. CITY agrees to notify LESSEE and LESSEE's Mortgagees simultaneously of any default by LESSEE and to give Mortgagees the same right to cure any default as LESSEE or to remove any property of BEL 259914v3 52051 é2782 LEW Mountainview- 08!06/04 9 ---PAGE BREAK--- LESSEE or Mortgagee located on the premises, except that the cure period for any Mortgagee shall not be less than thirty (30) days after receipt of the default notice. Section 18. Interference. CITY and LESSEE agree that CITY and/or any other tenants of the Property who currently have or in the future take possession of the Property will be permitted to install only such radio equipment that is of the type and frequency which will not cause measurable interference to the existing equipment of LESSEE. Additionally, LESSEE agrees to only install such radio and other equipment that will not interfere with the existing equipment owned and operated by the CITY and other existing tenants of the Property. LESSEE agrees that upon notification that LESSEE's equipment is disrupting and interfering with CITY's or other existing tenant's equipment, LESSEE shall immediately discontinue use of said interfering equipment until such time as modifications can be made to eliminate said interference. The parties acknowledge that there will not be an adequate remedy at law for non-compliance with the provisions of this paragraph and therefore, LESSEE shall have the right to equitable remedies, such as, without limitation, injunctive relief and specific performance. Section 19. Tower Compliance. CITY covenants that it will keep the water tower in good repair as required by all federal, state, county and local laws. CITY shall also comply with all rules and regulations enforced by the FCC with regard to the lighting, marking and painting of towers. Section 20. Quiet Enjoyment; Warranty of Title. CITY covenants that LESSEE, on paying the monetary fee pursuant to this Agreement and performing the covenants shall peaceably and quietly have, hold and enjoy the WCF. CITY covenants that CITY is seized of good and sufficient title and interest to the Property and has full authority to enter into and execute this Agreement. CITY further covenants that there are no other liens, judgments or impediments of title on the Property, or affecting CITY's title to the same and that there are no covenants, easements or restrictions which prevent the use of the WCF by LESSEE as set forth above. Section 21. Venue Stipulation. This Agreement shall be construed as having been made and delivered within the State of Idaho, and it shall be mutually understood and agreed by each party hereto that this Agreement shall be governed by laws of the State of Idaho, both as to interpretation and performance. Any action at law, suit in equity, or judicial proceeding for the enforcement of this Agreement or any provisions thereof shall be instituted and maintained only in a court of competent jurisdiction in Latah County, Idaho. Section 22. Extent of Agreement. This Agreement contains all the terms and conditions agreed upon by the parties hereto. No other understanding, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind either of the parties hereto. BEL 259914v3 52051-2782 LEW Mountainview 08!06!04 10 ---PAGE BREAK--- other existing tenants of the Property. LESSEE agrees that upon notification that LESSEE's equipment is disrupting and interfering with CITY's or other existing tenant's equipment, LESSEE shall immediately discontinue use of said interfering equipment until such time as modifications can be made to eliminate said interference. The parties acknowledge that there will not be an adequate remedy at law for non-compliance with the provisions of this and therefore, LESSEE shall have the right to equitable remedies, such as, without limitation, injunctive relief and specific performance. Section 19. Tower Compliance. CITY covenants that it will keep the water tower in good repair as required by all federal, state, county and local laws. CITY shall also comply with all rules and regulations enforced by the FCC with regard to the lighting, marking and painting of towers. Section 20. Quiet Enjoyment; Warranty of Title. CITY covenants that LESSEE, on paying the monetary fee pursuant to this Agreement and performing the covenants shall peaceably and quietly have, hold and enjoy the WCF. CITY covenants that CITY is seized of good and sufficient title and interest to the Property and has full authority to enter into and execute this Agreement. CITY ti.nther covenants that there are no other liens, judgments or impediments of title on the Property, or affecting CITY's title to the same and that there are no covenants, easements or restrictions which prevent the use of the WCF by LESSEE as set forth above. Section 21. Venue Stipulation. This Agreement shall be construed as having been made and delivered within the State of Idaho, and it shall be mutually understood and agreed by each party hereto that this Agreement shall be governed by laws of the State of Idaho, both as to interpretation and performance. Any action at law, suit in equity, or judicial proceeding for the enforcement of this Agreement or any provisions thereof shall be instituted and maintained only in a court of competent jurisdiction in Latah County, Idaho. Section 22. Extent of Agreement. This Agreement contains all the terms and conditions agreed upon by the parties hereto. No other understanding, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind either of the parties hereto. Section 23. Modification. CITY and LESSEE reserve the right to change or modify the terms and conditions of this Agreement. However, no change or modification to this Agreement shall be valid or binding upon either party unless such change or modification is in writing and executed by both CITY, after receiving formal authorization by the City Council, and LESSEE with each party employing the same formalities as to the identity of signatories as have been utilized in this Agreement. BEL 2599!4v2 5205!®27)\2 L EW Mountainview 09/02/0-1- I I ---PAGE BREAK--- Section 23. M odification. CITY and LESSEE reserve the right to change or modify the terms and conditions of this Agreement. However, no change or modification to this Agreement shall be valid or binding upon either party unless such change or modification is in writing and executed by both CITY, after receiving formal authorization by the City Council, and LESSEE with each party employing the same formalities as to the identity of signatories as have been utilized in this Agreement. Section 24. Binding Effect. That this Agreement shall be binding upon and inure to the benefit of the legal representatives and proper assigns and proper successors of the parties. Section 25. Waiver of C ITY'S Lien. CITY hereby waives any and all lien rights it may have, statutory or otherwise concerning the WCF or any portion thereof which shall be deemed personal property for the purposes of this Permit, whether or not the same is deemed real or personal property under applicable laws, and CITY gives LESSEE and LESSEE's Mortgagees the right to remove all or any portion of thc same from time to time, so long LESSEE as is not in default under this Permit, in LESSEE's and/or Mortgagee's sole discretion and without CITY's consent. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in duplicate, the day and year first above written. CITY: City of Moscow, Idaho a municipal corporation of the Sta•ǵ<> ,.aho ATTEST: BEL 2599l4v3 52051-2782 LEW Mountainview 08!06104 1 1 LESSEE: Cellco PartneJp d!h/a Verizon Wireless / By: Robert F. Swaine West Area Vice President- Network Date: K ? - I' tf ---PAGE BREAK--- STATE OF IDAHO ) ) ss COUNTY OF LATAH ) On this day personally appeared before me a Notary Public in and for said State, lltoxs:,, 4 H. C'c:rn/.q'&n to me to be the person name above as the duly authorized legal agent of o f c s c aw , who executed the within and foregoing instrument, on b hlf of and acknowledged that he/she s1gned the same as h1s/her free and voluntary act and deed, for the uses and purposes therein mentioned. GIVEN under my hand and official seal this 7,ay of Se p:kPn 6r; 2004. BEL 2599!4v3 52051·2782 LEW Mountainview 08/06i04 Residing at My commission expires: 12 ---PAGE BREAK--- LESSEE ACKNOWLEDGMENT STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) On this day 20Jj_, before me, the undersigned, a Notary Public in and for the State of Arizona, duly commissioned and sworn, personally appeared Robert F. Swaine, to me known to be an authorized representative of Cell co Partnership d/b/a Verizon Wireless, the partnership that executed the foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of Cell co Partnership d/b/a Verizon Wireless, for the uses and purposes therein mentioned, and on oath stated that He is authorized to execute the said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above Written. ( I, r; ' BEL 259914v3 52051-2782 LEW Mountainview 08/06!04 \ 11. 11 L Print or1'ype Name: COVLEEN A. ENvk:L Notary Public in and for the State of AZ, residing at MARICOPA COUNTY My appointment expires: OCT 2006 13 ---PAGE BREAK--- Exhibit Situate in the County of Latah, State ofidaho, to wit: A parcel of land located in the Southwest Quarter of the Northeast Quarter of Section 8, Township 39 North, Range 5 WBM, more particularly described as follows: Commencing at a point 1080 feet North and 715.7 feet East of the Southwest comer of the Northeast Quarter of Section 8, Township 39 North, Range 5 West Boise Meridian; thence running East 624.9 feet; thence North 330 feet; thence West 624.9 feet; thence South 330 feet to the Place of Beginning. EXCEPTING TI:IEREFROM, Commencing at a point 1080 feet North and 715.7 feet East of the Southwest Quarter of the Northeast Quarter of Section 8, Township 39 North, Range 5 WBM; thence running East 300 feet; thence North 255 feet; thence West 300 feet; thence South 255 feet to the Place of Beginning. BEL2599!4vl 5205!-2782 L EW Mounta1nviv.v 08/06/04 Page I of I 14 ---PAGE BREAK--- F' STREET ' BEL 259914v3 52051-2782 L EW Mountainvie>v 08/06/04 ' \ Exhibit Page 1 of2 15 PARENT PARCEL BOUNDARY TRUE NORTH BAR SCALE IS ONE INCH ON ORIGiNAL DRAWlNG. lF NOT ONE INCH ON THIS SHE£T, ADJUST SCALES ACCORDINGLY ---PAGE BREAK--- BEL 259914v3 52051-2782 LEW Mountainview 08/06/04 Exhibit I WEIGhT Of CABLES 0.92 L8/rT TOTAL C(LLL'LAR EQU1PME:NT WEIGHT ON WALKWA "r 2000 LS C!RCUMFRANCE Of WALKWAY 186 fT_ ECUIPM[NT WEiGHT PER FOOT Of WALKWAY 10.75 LS/FT ezf?.R .HEAST ELEVATION Page 2 of2 16