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WIRELESS COMMUNICATION FACILITY AGREEMENT BETWEEN CITY OF MOSCOW, IDAHO AND UNIVERSITY of IDAHO NATIONAL INSTITUTE for ADVANCED TRANSPORTATION TECHNOLOGY- ROTARY PARK WATER TOWER THIS WIRELESS COMMUNICATION FACILITY AGREEMENT BETWEEN CITY OF MOSCOW, IDAHO AND THE BOARD OF REGENTS ,.,QF THE UNIVERSITY OF IDAHO (hereinafter "Agreement") is made and entered into, this day of feb. , 2010, by and between CITY OF MOSCOW, IDAHO a municipal corporation of the State of Idaho, (hereinafter "CITY") and THE BOARD OF REGENTS OF THE UNIVERSITY OF IDAHO , a state educational institution and body politic and corporate, organized and existing under the constitution and laws of the State of Idaho, and more particularly for the use of the University of Idaho's NATIONAL INSTITUTE for ADVANCED TRANSPORTATION TECHNOLOGY(hereinafter "UI NIATT"), and for good and valuable consideration the parties agree as follows: SECTION 1: Property. Subject to the following terms and conditions, CITY allows and permits UJ NIA TT to use certain designated space on CITY's Rotary Park Water Tower and certain designated space on such water tower for the uses set forth in Section 2. The location of CITY's Rotary Park Water Tower and the space for the use permitted herein are more particularly described in Exhibit attached hereto. SECTION 2: Permitted Use. UI NIATT may install, operate, maintain, repair, and remove a wireless communication facility (WCF) on the property more particularly described in Section 1 herein. The WCF will include only the following components: 2.1 Equipment Box, 8 inches x 8 inches x 8 inches - Containing equipment related to the transmission and reception of microwave signals. 2.2 Antennas - One ( 1) antenna mounted with the appropriate hardware to the tower. Antenna cables shall be secured to the tower. All work shall be approved by CITY. SECTION 3: Term. The initial term of this Agreement shall expire on midnight September 30, 2012. SECTION 4: Fee. No use fee shall be imposed by this Agreement. UI NIATT shall benefit from its permitted ability to utilize CITY facilities for installation of its WCF and CITY shall benefit from the WCF's functions resulting in access to more convenient public transportation within the city limits. Both parties deem such benefits of this Agreement as sufficient consideration for this Agreement. SECTION 5: Recovery of Costs. UI NIATT shall: 5.1 Reimburse CITY for any and all costs CITY reasonably incurs in responding to any emergency caused by UI NIA TT's WCF. 5.2 Reimburse CITY for its proportionate share for all reasonable expenses and costs attributable to UI NJA TT's permitted use subsequent to installation , including CITY personnel salary and benefits, incurred by CITY in planning, constructing, installing, UI NIAIT- ROTARY PARK WATER TOWER PAGE I OF9 2D\O ·OlD ---PAGE BREAK--- repairing or altering any CITY facility which becomes reasonably necessary as the result of the presence of the WCF permitted by this Agreement. However, CITY shall notify UI NIATI prior to commencement of any planned work contemplated under this section that may impose such anticipated costs on UI NIATI. Such notice shall provide UI NIA TT with a reasonable amount of time to remove the WCF to avoid planned work costs as described by this section. SECTION 6: UI NIA TT's Responsibilities. 6.1 For purposes of initiating and maintaining the specific uses permitted by this Agreement, UI NIA TT agrees to comply with those provisions of Moscow City Ordinance Section 4-6- 14 and Resolution No. 2001-02 applicable to VI NIATT and its permitted use, including such applicable provisions that may be imposed by amended provisions adopted during the term of this Agreement or existing at the time of subsequent renewals of this Agreement relating to the safety of the public and employees of CITY or of UI NIA TT; provided that if UI NIA TT seeks to modify or change its WCF requiring compliance with CITY's Zoning Code, then its WCF shall meet the then existing requirements relating to its WCF. 6.2 UI NIATI shall pay all costs involved in the installation, operation, maintenance, repair, and removal of the WCF permitted under this Agreement. UI NIA TT shall have a representative inspector on-site during the installation process, including when work is being done by any subcontractor. 6.3 UI NIATT shall comply with all applicable CITY, county, state, and federal laws, ordinances, and regulations regarding the use permitted under this Agreement, and, obtain all appropriate permits, approvals, and certifications at Ul NIA TT's own expense. 6.4 UI NIATT shall not do anything or allow anything to be done on the Property described in Section I and CITY's water tank located thereon which would in any way compromise the integrity of CITY's water tank or CITY's water system. Prior to installation of the WCF or any associated component, UI NIA 1T shall submit for review and approval by the Public Works Director or designee plans and specifications for the proposed work. 6.5 Whenever installation, maintenance, repair, operation, or removal of the WCF or facilities authorized by this Agreement has caused or contributed to a condition that appears to the Public Works Director or designee to impair or endanger CITY property or utilities, the Public Works Director or designee may direct UI NIATT, at UI NIATT's own expense, to take action to protect CITY property or CITY utilities. Such action may include compliance within such time as may be prescribed by the Public Works Director or designee. The prescribed time will be reasonable and related to the seriousness of what needs correcting both of which will be determined solely by the Public Works Director or designee. In the event that UI NIA TT fails or refuses to take the actions directed by the Public Works Director or designee; or fails to fully comply with such directions; or if emergency conditions exist which require immediate action, CITY may enter upon UI NIATI's WCF, located on the Property described in Section I, and take such actions as CITY in its sole discretion considers appropriate in order to protect CITY property or its utilities and UI NIA TT shall be liable to CITY for the costs thereof. UI NIATT- ROTARY PARK WATER TOWER PAGE2 OF 9 ---PAGE BREAK--- 6.6 This Agreement contemplates that both CITY and UI NJA TT will from time to time need to do maintenance on their respective facilities. It further contemplates that mutual reviews of plans for installation, construction or maintenance will occur in order to coordinate and accommodate such work and maintenance. Consistent with this approach, UI NIATT shall take any and all steps necessary to allow CITY to carry out ongoing required maintenance in an efficient and safe manner. For example, during painting of the tank, this requirement could include covering possible extra costs for the contractor to deal with the antennas and cable on the tank. Any required work on CITY components such as protection, removal, or relocation to allow maintenance of UI NIA TT's facilities will be done only with the prior approval of the Public Works Director or designee at no cost to CITY. The present essential function of this CITY property, as noted in Section 8 of this Agreement, is the storage and conveyance of CITY potable water supplies. The approval of UI NIA TT's plans for a WCF and associated components on this water tank property will be based on currently adopted long-range planning. Even so, over time, the needs of CITY may change and thus other functions may be added or exchanged for the existing function to maintain essential services to the citizens of Moscow. However, in the event CITY requires either temporary or permanent relocation of Ul NIA TT's WCF or any of its components, in order to maintain or carry out any or all of the essential CITY functions of the site, including any decision to demolish or remove the tank, UI NIA TT shall make such changes at UI NIA TT's sole expense. CITY will, to the extent practical in non-emergency situations, provide UI NIA TT with a written request for relocation changes at least one hundred eighty (180) calendar days in advance. 6.7 UI NIATT 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 UI NIA TT OR ANYONE ACTING FOR OR ON BEHALF OF UI NJA TT. 6.8 Under-grounding of electrical service to serve the WCF permitted under this Agreement is required by this Agreement on the Property described in Section I and in the public right of-way serving the entrance to said Property. All costs of obtaining electrical service to the WCF and the under-grounding thereof as herein required shall be the sole obligation of UI NIA TT and not CITY. The location of the electrical service meter shall be approved by CITY. SECTION 7: Ingress and Egress Rights. 7.1 CITY grants to UI NIA TT, a nonexclusive right for ingress and egress across CITY's Property described in Section I, subject to twenty-four (24) prior written notice to CITY for scheduled or routine maintenance, construction, servicing, and/or repair. Such twenty-four (24) hours prior written notice to CITY does not apply to emergencies. In case of an emergency, UI NIA TT shall notify CITY of entry as soon as practicable following UI NIA TT's first notice of such emergency. 7.2 UI NIATT, upon written permission from Public Works Director or designee, may, at UI NIATT's own cost, make such improvements as it may deem necessary in and to any access UI NIATI- ROTARY PARK WATER TOWER PAGE3 OF9 ---PAGE BREAK--- way controlled by CITY used for access to and egress from the WCF. UI NIATT shall, at its own cost, repair to CITY standards any damage resulting from its use. 7.3 Should UI NIA TT require the assistance of CITY or the presence of CITY employees, agents, contractors, or subcontractors, in support of installation, construction, maintenance, servicing, repair, and/or removal of it's WCF, UI NIA TT shall compensate CITY for costs and services rendered by CITY. 7.4 CITY retains the right to shut down all power to its property including Rotary Park Water Tower at any time without notice to UI NIA TT; however, where practicable, CITY will give advance notice of such power shut down twenty four (24) hours prior and will work with UI NIA TT to minimize any disruption to UI NIATT's business which may occur as a result of such shut down. Nothing in this Agreement shall limit or be interpreted to limit the CITY's right to access to its own property or to appurtenances, attachments or fixtures thereto. 7.5 UI NIATT shall, at all times other than during an emergency, require the presence of a CITY employee when performing any services which require UI NIATT to be physically present on the Rotary Park Water Tower SECTION 8: Nonexclusive Grant. 8.1 This Agreement and the permission granted hereunder shall not in any manner prevent CITY from entering into other agreements for uses similar to the use herein permitted or prevent CITY from granting or entering into other agreements for uses on, under, across, or over the Property described in Section I of this Agreement whether or not those uses be similar to the use permitted by this Agreement. This Agreement shall in no way prevent or prohibit CITY from using said Property as CITY in its sole discretion considers appropriate, or affect its jurisdiction over it. CITY shall retain the exclusive power to make all necessary changes, relocations, repairs, maintenance, establishment, and improvement of and to CITY facilities within said Property. It is understood that the primary use of the CITY's water tower is a public use, which is to provide water to water users, and UI NIATT'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 UI NIA TT under this Agreement. 8.2 CITY and UI NIA TT understand and agree herein that co-location shall be required at any time designated by CITY pursuant to any conditions CITY wishes to establish. Such co-location shall not give rise to any expectation of financial benefit to UI NIA TT. UI NIATT shall not charge any fee to CITY or to co-locator for such co-location, neither shall UI NIA TT establish any requirements for such co-location. CITY agrees to make a good faith attempt to accommodate UI NIA TT's operational needs when considering whether to allow co-location and when imposing conditions for co-location. SECTION 9: Insurance. Subject to the limits of liability specified in Idaho Code 6-901 through 6-929, known as the Idaho Tort Claims Act, Ul NIA TT shall procure and maintain for the duration of the Agreement, coverage against UI NIATI- ROTARY PARK WATER TOWER PAGE40F9 ---PAGE BREAK--- 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 UI NIA IT, its agents, representatives or employees. Throughout the term of this Agreement, UI NIA IT shall provide a certificate of financial responsibility, together with an endorsement naming CITY, its officers, elected officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the CITY for its inspection and approval prior to the commencement of any work or installation of any facilities pursuant to this Agreement, and such insurance certificate shall evidence: 9.1. Automobile Liability coverage with limits no less than $500,000 Combined Single Limit per accident for bodily injury and property damage; and 9.2 Commercial General Liability coverage, written on an occurrence basis with limits no less than $500,000 combined single limit per occurrence and in the 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 employer's liability. The above coverage may be provided, in part, through an umbrella policy, with the approval of CITY. Any deductibles or self-insured retention must be declared to and approved by CITY. Payment of deductible or self-insured retention shall be the sole responsibility of UI NIA TT. 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. UI NIATT's coverage shall be primary insurance as respects CITY, its officers, officials, employees, and volunteers. Any insurance maintained by CITY for or by its officers, officials, employees or volunteers shall be in excess of UI NIA IT's insurance and shall not contribute with it. The coverage required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to CITY. The certificate of financial responsibility shall contain language evidencing these requirements. SECTION 10: Indemnification. Subject to the limits of liability specified in Idaho Code 6-901 through 6-929, known as the Idaho Tort Claims Act, UI NIA TT hereby releases CITY and covenants not to bring suit and agrees to indemnify and hold ham1less CITY, its officers, employees, agents and representatives from any and all claims, costs, judgments, awards or liability to any person, including claims by UI NIA TT's own employees to which UI NIA TT might otherwise be immune, arising from the installation, use, operation, maintenance, repair, interruption of service, or removal of UI NIA TT's WCF pem1itted under the terms of this Agreement except for claims based on the sole negligent and intentional acts of CITY, EXCEPT THAT UI NIATT SHALL HOLD CITY HARMLESS AND INDEMNIFY IT AGAINST ANY LOSS FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE LADDER SYSTEM ON CITY'S WATER TOWER BY ANYONE (WHEN REQUESTED BY UI NIAIT) TO INSTALL, USE, MAINTAIN, REPAIR, OR REMOVE THE ANTENNA FACILITIES OF UI NIA IT'S WIRELESS COMMUNICATION FACILITIES. UI NIA IT expressly agrees that this indemnity provision extends to any and all claims for injury, sickness, or death of any person, including employees of UI NIATT, arising out of or caused by electro magnetic emissions from UI NIA TT's equipment. This indemnity shall not extend to emissions shown to be caused by any other electro-magnetic source. This shall be interpreted as a WAIVER of immunity Ul NIAIT- ROTARY PARK WATER TOWER PAGE 50F9 ---PAGE BREAK--- under the workers compensation Jaws of the State of Idaho, which has been negotiated between the parties. Inspection or acceptance by CITY of any work performed by UI NIA TT at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. UI NIATT'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 this indemnification, are $500,000 Combined Single Limits, which amount is the University's limit of liability under the Idaho Tort Claims Act. SECTION 11: Taxes. Subject to UI NIA TT' s tax exempt status and to the extent applicable with such status, UI NIA TT shall pay all taxes, including leasehold excise taxes, if any, and assessments which may be assessed and become due and payable upon the Property described in Section I, the improvements thereon or operation of UI NIATT. It is the intention of the parties hereto that the WCF described in Section 2, and any building, fence, or other improvements of UI NIA IT's on the Property described in Section I, shall be deemed between the parties to be personal property of UI NIA TT. Upon the expiration of this Agreement UI NIA TT shall remove all of such property and restore the Property described in Section I to its former condition, excepting normal wear and tear. SECTION 12: Failure to Construct Facility- Termination. If UI NIATT fails to construct and operate (for whatever reason) the WCF permitted by this Agreement by June 30, 2010, CITY may, by sending written notice directed as specified in Section I 6, terminate this Agreement. UI NIA TT shall remove any property it has placed on the Property designated in Section I, and shall restore the premises to its previous condition, whereupon the parties shall be under no further obligation to each other. SECTION 13: Right to Terminate Agreement-UI NIA TT. UI NIA TT shall have the right to terminate this Agreement at any time upon giving CITY sixty (60) calendar days notice directed as specified in Section 16. UI NIA TT shall remove all of its property and return the land and CITY's water tower described in Section 2 to its original state, excepting normal wear and tear, within the sixty (60) calendar day period. SECTION 14: Right to Terminate Agreement - CITY. CITY shall have the right to terminate this Agreement with or without cause at any time upon giving UI NIATT sixty (60) calendar days notice directed as specified in Section 16. 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 UI NIA TT 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. In the event of forfeiture or revocation for breach, UI NIA TT shall remove any equipment it has placed on the Property designated in Section I, and shall restore the premises to its previous condition, whereupon the parties shall be under no further obligation to each other. SECTION 16: Notices. All written notices shall be directed to: CITY: City of Moscow Attention: Information Systems Director P 0 Box 9203 Ul NIAIT- ROTARY PARK WATER TOWER PAGE60F9 ---PAGE BREAK--- UI NIATT: Moscow, ID 83 843 Phone: (208) 883-7003 Facsimile: (208) 883-7018 Regents University ofldaho Attention: Lloyd E Mues P.O. Box 443168 Moscow, ID 83844-3168 Phone: (208) 885-6174 Delivery of said notice shall be effected in any one of the following manners: 17.1 By personal delivery to and acknowledgment of receipt thereof signed by the receiving party. 17.2 By depositing the notice in the United States mails, in an envelope properly addressed to the address indicated above with postage fully prepaid thereon and mailed certified, return receipt requested. In the event said notice is mailed, it shall be deemed delivered seven days following the deposit thereof in the United States mails. SECTION 18: Assignment. This Agreement shall not be assigned. SECTION 19: Venue Stipulation. This Agreement shall be construed as having been made and delivered within the state of Idaho, and it shall be mutually understood and agreed by each party hereto that this Agreement shall be governed by laws of the state of Idaho, both as to interpretation and performance. Any action at law, suit in equity, or judicial proceeding for the enforcement of this Agreement or any provisions thereof shall be instituted and maintained only in a court of competent jurisdiction in Latah County, Idaho. SECTION 20: Extent of Agreement. This Agreement contains all the terms and conditions agreed upon by the parties hereto. No other understanding, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind either of the parties hereto. SECTION 21: Modification. CITY and UI NIA TT 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 UI NIA TT with each party employing the same formalities as to the identity of signatories as have been utilized in this Agreement. SECTION 22: Binding Effect. That this Agreement shall be binding upon and inure to the benefit of the legal representatives and proper assigns and proper successors of the parties. SECTION 23: Waiver of CITY's Lien. CITY hereby waives any and all lien rights it may have, statutory or otherwise concerning the WCF or any portion thereof which shall be deemed personal property for the purposes of this Permit, whether or not the same is deemed real or personal property under applicable laws, and CITY gives UI NIATT and UI NIATT's Mortgagees the right to remove all Ul NIAIT- ROTARY PARK WATER TOWER PAGE 70F9 ---PAGE BREAK--- or any portion of the same from time to time, so long as UI NIA TT is not in default under this Permit, in UI NIA IT'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: UI NIATT: City Of Moscow, Idaho Board of Regents of the University of Idaho by: Lloyd E. Mues Vice President, Finance and Administration Ul NIA IT - ROTARY PARK WATER TOWER PAGE80F9 ---PAGE BREAK--- STATE OF IDAHO } ) ss. County of Latah ) ACKNOWLEDGMENT JPn this day personally appeared before me, a Notary Public in and for said State, 0\1 E. {Jj!_d , to me known to be the person name above as the duly authorized legal a nt of the Board of Regents of the University of Idaho, who executed the within and foregoing instrument, on behalf of said Board and acknowledged that he/she signed the same as his free and voluntary act and deed, for the uses and purposes therein mentioned, and with express authority to bind said Board to this Agreement. GIVEN under my hand and official seal this day of It /rw;L , 2010. Agreement\UI NJA TT Leaselpm Ul NIATI- ROTARY PARK WATER TOWER Notary Public in and for the State 9fld;ilio Residing at ·-"YVVoS('cJcU1 J Oto!\ 0 My commission expires: ljd-1/ :JO/f) I PAGE90F9