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HomeMy WebLinkAboutAffidavit of Legal Interest V1APPROVED ER LICENSE AGREEMENT BETWEEN ADA COUNTY HIGHWAY DISTRICT 06/02/22 NEW CINGULAR WIRELESS PCS, LLC, FOR THE USE OF ADA COUNTY "E AY DISTRICT RIGHTS-OF-WAYAND PROPERTY IN CONNECTION WITH `'_E"U'Ja;R;A2G22 1 THE OPERATION OF A WIRELESS NETWORK This Agreement is made and entered into by and between the ADA COUNTY HIGHWAY DISTRICT, a body politic and corporate of the State of Idaho ("ACHD") and NEW CINGULAR WIRELESS PCS, LLC, Delaware limited liability company ("Licensee"). ACHD and Licensee may be referred to herein individually as a "Party" or collectively as the "Parties." RECITALS This Agreement is made with reference to the following Recitals, each of which is deemed to be a material term and provision of this Agreement: A. ACHD is a single county -wide highway district organized and existing under the laws of the State of Idaho with exclusive general supervisory authority over all public highways, public streets and public rights -of -way under its jurisdiction within Ada County, Idaho, except for state highways and freeways, and has all powers necessary and incidental to the statutory powers granted to it under Title 40, Idaho Code. B. ACHD is the statutory owner of certain transportation facilities located in the public rights -of -way ("ROW') under its jurisdiction within the county limits of Ada County, Idaho. C. Pursuant to its authority under Title 40, Chapter 14, Idaho Code, ACHD, owns and maintains certain transportation facilities located in the ROW situated within the county limits of Ada County, Idaho. D. Licensee is duly organized and existing under the laws of the State of Delaware, and its lawful successors, assigns and transferees, are authorized to conduct business in the State of Idaho. E. Licensee desires to construct, operate and maintain communications sites from ACHD-owned poles and ACHD-owned traffic signal devices situated in the ROW and, for such purpose, desires to locate, place, attach, install, operate, control, and maintain antennas and other related wireless communications equipment consistent with Small Cell technology ("Equipment") on ACHD-owned poles and ACHD-owned traffic signal devices in the ROW. F. Licensee will agree to comply with ACHD's ROW use requirements and ACHD's transportation facilities use requirements as provided herein. G. Licensee is willing to reasonably compensate ACHD in exchange for a grant and right to use and physically occupy portions of the poles, traffic signal devices and/or the ROW as provided herein. E IDI� 11 APPROVED DAT 06/02/22 C; %Uld B;R' A-2G22-01 a1 AGREEMENT "T.1. Definitions. For the purposes of this Agreement and all Exhibits attached hereto, the following terms, phrases, words and derivations shall have the meaning given herein. (A) Agreement means this Master License Agreement for the Use of ACHD Property in Connection with the Operation of a Wireless Network. (B) Annual Fee means that pole or traffic signal device attachment fee described in Section 4 of this Agreement. (C) Application Fee means the Site License application fee described in Section 4 of this Agreement. (D) Business Day means a day other than a Saturday, Sunday or other day on which commercial banks in the County are authorized or required to close. (E) County means Ada County, Idaho. (F) Code means ACHD's Policy Manuals, Ordinances and Regulations, as they may be amended, supplemented, or repealed from time to time. Site License. (G) Commencement Date means the effective date specified in each (H) Equipment means: (i) Small Cell antennas and other wireless communications equipment utilizing small cell technology that is specifically identified and described in Exhibit 1 attached to each Site License (as defined below). (ii) Broadband backhaul transmission facilities, whether provided by landline communications infrastructure (including, without limitation, fiber, conduit and related equipment and improvements) ("Landline Backhaul Equipment") and/or wireless communications infrastructure (including, without limitation, wireless microwave and related cable, wires, equipment and improvements) ("Wireless Backhaul Equipment") that interconnects with wireless communication equipment at the point -of - demarcation and is for the purpose of providing backhaul service; and (iii) The transmission media attached, mounted, or installed on a pole located in public rights -of -way, in addition to control boxes, cables, conduit, power sources, and other equipment, structures, plant, and appurtenances between the transmission media and the point -of -demarcation for the purpose of providing wireless communication service. 2 E IDI� 11 APPROVED (1) Hazardous Substance means any substance, chemical or waste 06/02/22 I ed as hazardous or toxic in any applicable federal, state or local law or regulation, "E not limited to petroleum products and asbestos. CE `�Uld B;R' A-zazz-01 as (J) Interference means physical interference and radio frequency interference. (K) Laws means any and all applicable local, state, and federal statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, permits, approvals or other applicable requirements of ACHD or other governmental entity or agency having joint or several jurisdiction over Licensee's activities under this Agreement or having jurisdiction that is applicable to any aspect of this Agreement, including the Code (as defined above), that are in force on date of the execution of this Agreement, and as they may be lawfully enacted, issued or amended during the term of this Agreement. (L) Loss or Losses means any and all claims, demands, damages and losses, including reasonable attomeys' fees and costs of defense. (M) Permit means a permit issued and described in accordance with Laws, which is used to regulate, monitor and control improvement, construction or excavation activities, or other work or activity, occurring upon or otherwise affecting the ROW. (N) Physical interference means where equipment, vegetation or a structure causes reduced use of another's prior mounted equipment, or an obstruction in a necessary line -of -sign path. (0) Radio frequency interference means the radiation or conduction of radio frequency energy (or electronic noise) produced by electrical and electronic devices at levels that interfere with the operation of adjacent equipment. (P) ROW means the surface of and the space above and below the ACHD owned public rights -of -way, streets, alley rights -of -way, and public utility easements or other public ways of any type whatsoever, under ACHD's jurisdiction, now or hereafter located and existing within the County limits, whether or not improved. (Q) Site License means the form of the license granted by this Agreement, described in Section 2 below, and shown on Exhibit A, and includes all additions and modifications to the extent approved by ACHD as set forth in Section 2 below. (R) Small Cell means compact communication sites in a mobile network but providing a smaller coverage area than traditional macrocells. (S) Term means the period that this Agreement is in effect as described in Section 3.1 of this Agreement. (T) Transportation Facilities means those ACHD owned poles and fixtures located within the ROW, including without limitation, streetlight poles, traffic poles, 3 E IDI� 11 APPROVED DAT 06/02/22 nal devices that are designated or approved by ACHD as being suitable for quipment. J%UtjaLe; A-2G22-1°1 2. Exhibits. The following numbered documents, which are occasionally referred to in this Agreement, are formally incorporated and made part of this Agreement by this reference: (a) Exhibit A: Site License (plus attached exhibits). (b) Exhibit B: Limits of Insurance. In the event of any conflict or ambiguity between this Agreement, including the above - referenced exhibits (the "Exhibits"), and any other agreement between ACHD and Licensee, this Agreement, together with the Exhibits, shall govern and prevail. In the event of any conflict or ambiguity between this Agreement, including the Exhibits, and any Site License, this Agreement shall govern and prevail. 2. Site License Granted and Terms. 2.1. Scope. ACHD, acting in its proprietary capacity as the statutory owner of Transportation Facilities in the ROW, does grant (subject to Section 3 below) to Licensee a nonexclusive, revocable license to use Transportation Facilities owned by it to attach, install, operate, maintain, upgrade, remove, reattach, reinstall, relocate and replace the Equipment that may be required or desired to operate a Small Cell (the "Site License"). This grant is subject to the terms, conditions and other provisions set forth in this Agreement, to applicable provisions of the Code, applicable required Permits and all applicable Laws and reasonable regulations of any regulatory agency having competent jurisdiction. This Agreement is not intended to, and shall not, preclude or impede the ability of ACHD to enter into other similar agreements in the future allowing third parties to also use the ROW, or the ability of ACHD to redesign, reconstruct, relocate, maintain and improve its ROWs and Highways (defined in Section 2.3(c) below) as it determines, in its sole discretion, is appropriate in accordance with applicable law. The Parties contemplate that upon further development by Licensee, any additional Site Licenses requested by Licensee shall be incorporated into this Agreement by means of an addendum signed by each of the parties, but such additional Site Licenses shall only become effective upon the written approval of ACHD or its designees authorized to execute Site Licenses by the ACHD Board of Commissioners. 2.2. Use of ACHD Property. The Site License, if and when approved by ACHD, allows Licensee to access, occupy and use allocated available space on each of the poles and traffic signal devices identified as Transportation Facilities in Exhibit 1 to the Site License to attach, install, operate, maintain, upgrade, remove, reattach, reinstall, relocate and replace the Equipment, as identified in such Exhibit 1, solely for the purpose of Licensee operating a Small Cell. The Site License also allows the installation, operation and maintenance of ground based, pad mounted equipment cabinets and/or power pedestals needed for the operation of Equipment attached to any of the Transportation Facilities, together with any related conduit, cable or wiring, with the location of any such cabinet or F, APPROVED determined in connection with the issuance of an Permit (if needed). Licensee shall 06/02/22 ss to the Transportation Facilities upon which Equipment is installed 24 hours a " E ys a week, subject to all limitations and other provisions of this Agreement including, �,E �'ui`IaLe; A-2G22G'G9 imitation, Section 2.3 below. 2.3. Limitations on Use. Except as otherwise expressly provided herein, the Site License does not authorize Licensee to: (a) Occupy or use any poles, improvements or structures of any kind, whether within or without the ROW, other than the items identified as Transportation Facilities shown in Exhibit 1 attached to a Site License; (b) Subject to Section 2.5 below, enter upon public property and attach, install, operate, maintain, upgrade, remove, reattach, reinstall, relocate and/or replace any item of Equipment in or on poles or other structures not owned by ACHD and located within the ROW; (c) Occupy or use the ROW to the exclusion of ACHD for any use within ACHD's jurisdiction, authority and discretion or of others to the extent authorized by law to use the ROW. If the ROW has been opened as a public Highway (as used in the Agreement the term "Highway" is as defined in Idaho Code § 40-109(5)) Licensee's authorized use is subject to the rights of the public to use the ROW for Highway purposes; (d) Interfere with the rights of holders of easements of record or obvious on inspection of the ROW and statutory rights of utilities to use the public ROW, as is more particularly set forth in Section 7.13 of this Agreement; or (e) Take any action that would jeopardize the structural integrity of ACHD's Transportation Facilities, conflict with ACHD's operations, or interfere with the public's access or use of the ROW. 2.4. Alterations. If Licensee proposes to install Equipment which is different in any material way from the then -existing and approved Equipment, then Licensee shall notify an authorized representative of ACHD of the proposed changes and obtain ACHD's written approval to make such change. In addition to any other submittal requirements, and if requested by ACHD, Licensee shall provide "load" (structural) calculations for all Transportation Facilities upon which it intends to modify Equipment in the ROW. Notwithstanding the foregoing, Licensee may modify its Equipment with like -kind or similar Equipment without prior written approval of ACHD, so long as it (i) does not differ in any material way from the then -existing and approved Equipment, and (ii) does not jeopardize the structural integrity of ACHD's Transportation Facilities or interfere with ACHD's operations; and (iii) does not interfere with the public's access or use of the ROW. 3. Term of Supplements and Agreement; Cancellation; Termination; Removal or Abandonment at Expiration; Modification. 3.1. Agreement Term. This Agreement shall be in effect for a period of no less than ten (10) years commencing on the date that this Agreement is fully executed (the 5 E IDI� 11 APPROVED on Date"), and expiring on the later of (a) the tenth (loth) anniversary of the 06/02/22 n Date, or (b) the expiration of the last Supplement Term (unless sooner "E d or terminated as provided in this section) (the "Term"). Notwithstanding J %Utja;R:A2o22-0,o1 to the contrary contained herein, Licensee shall have the right to terminate this Agreement for convenience at any time on or after the fifth (5th) anniversary of the Execution Date on 180 days' notice to ACHD. 3.2. Supplement Term. Each Site License shall be in effect for a period of five (5) years commencing on the "Commencement Date" determined in accordance with each Site License, and expiring on the day before the fifth (5th) anniversary of the Commencement Date unless sooner cancelled or terminated as provided herein (the "Supplement Term"). Provided that Licensee is not in material breach of the Site License, the Supplement Term will automatically be extended for up to three (3) successive five (5) year periods (each, a "Renewal Term"), with the first five (5) year extension of the Supplement Term commencing immediately upon the expiration of the initial period of the Supplement Term, and each additional five-year extension of the Supplement Term commencing immediately upon the expiration of the preceding additional period of the Term unless notice of non -extension is provided to ACHD by Licensee prior to the commencement of the succeeding Renewal Term. All of the provisions of this Agreement shall be in effect during the Supplement Term and any extension of the Supplement Term. 3.3. ACHD Termination. This Agreement and all Site Licenses may only be cancelled or terminated as provided in this Agreement or any Site License. ACHD may terminate this Agreement or any Site License, With Cause or Without Cause (defined below), before the date of expiration by providing the Licensee with one hundred eighty (180) days express written notice of termination. In addition, ACHD may immediately terminate this Agreement or any Site License immediately With Cause upon written notice to Licensee. Upon termination of this Agreement and all Site Licenses, ACHD may record a Revocation of Agreement for the Use of ACHD Property in the Official Real Property Records of Ada County, Idaho. If this Agreement or any Site License is terminated by ACHD Without Cause under this Section 3.3 prior to its expiration, ACHD agrees to refund the unearned pro rata portion of such any amounts paid to ACHD by Licensee in advance. As used herein, the term "With Cause" shall mean any Default by Licensee (as defined in Section 17), and "Without Cause" shall mean a determination by ACHD that continuation of this Agreement and/or any Site License is required for ACHD's ROW operations or necessitated by future ROW projects; provided that ACHD will exercise reasonable efforts to avoid terminating this Agreement and/or any Site License so long as Licensee agrees to relocate the Equipment to an acceptable location approved by ACHD and such arrangement is documented in a new or amended Site License. 3.4. Abandonment. If Licensee abandons the use of a Transportation Facilities location for a period of six (6) or more consecutive months, the Equipment for such Transportation Facilities shall be removed at the expense of Licensee and the Term or Supplemental Term shall be deemed to have expired. In the event Licensee is unable or refuses to remove such Equipment when requested by ACHD, ACHD may authorize removal and Licensee shall be responsible for all costs incurred for such removal. Alternatively, based upon the ownership of the Transportation Facilities to which the 0 /02/22 APPROVED [nt is attached or installed, ACHD may elect to take title to abandoned property, 06VED that Licensee shall submit to ACHD, at Licensee's expense, an instrument A ory to ACHD transferring to ACHD. The provisions of this Section shall survive �J %UtjB;R:A2°22-0'°1 ation or earlier termination of this Agreement. 3.5. Licensee Termination. Licensee's Use is contingent upon Licensee obtaining all of the certificates, permits and other approvals (collectively the "Governmental Approvals") that may be required by any Federal, State or Local authorities (collectively, "Governmental Entities") as well as a satisfactory structural analysis of any building, light pole, sign, or other structure that will permit Licensee's Use. ACHD shall cooperate with Licensee in its effort to obtain such approvals and shall take no action which would adversely affect the status of the Property with respect to Licensee's Use. The Governmental Approvals shall be a condition precedent to Licensee's signature of a Site License. In the event that (i) any of such applications for such Governmental Approvals should be finally rejected; (ii) any Governmental Approval issued to Licensee is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority; (iii) Licensee determines that such Governmental Approvals may not be obtained in a timely manner; and/or (iv) Licensee determines that the Governmental Approvals do not meet its requirement (including cost), Licensee shall have the right to terminate the applicable Site License upon written notice to ACHD. Notwithstanding anything to the contrary contained herein, Licensee shall have the right to terminate any Site License for convenience on 180 days' notice to ACHD. In the event of such termination, Licensee shall remove its Facilities and Equipment in accordance with Section 20 below and ACHD shall retain any fees paid to such date. 4. Fees and Charges. Licensee shall be solely responsible for the payment of all fees and charges in connection with Licensee's performance under this Agreement, including those set forth as follows: 4.1. Annual Pole Attachment Fee; Application Fee. (a) As of the Commencement Date for each Site License, Licensee shall pay to ACHD an annual fee ("Annual Fee") equal to $270.00 per site location for the use of each Transportation Facility by Licensee pursuant to a Site License, in order for Licensee to occupy and use space on the Transportation Facilities; provided that Licensee shall pay to ACHD an Annual Fee equal to $135.00 per site location that requires the installation of Equipment on facilities not owned by ACHD or ITD but located in the ROW. The Annual Fee paid per Transportation Facility location is non-refundable and is due and payable within forty-five (45) days of the initial Commencement Date for each Site License, and on or before each subsequent annual anniversary of the Commencement Date during the Supplement Term (or until such earlier time as such Site License is terminated). Upon agreement of the Parties, Licensee may pay the Annual Fee by electronic funds transfer and in such event, ACHD agrees to provide to Licensee bank routing information for such purpose upon request of Licensee. Additionally, Licensee will pay ACHD a $500.00 Site License Application Fee each time Licensee submits proposed Site License locations to ACHD for approval. The application will include engineering drawings and a structural analysis stamped by a license professional 7 APPROVED r, along with facility site elevations. ACHD will respond to Licensee concerning 06/02/22 a License Application within fifteen (15) days of receipt from Licensee providing "E val. Upon such approval, and after Licensee obtains all required authorizations, j UtJBLe; A-2G22-,�9 will prepare and transmit a Site License for the location in such application to Licensee; Licensee shall sign and return the Site License to ACHD as well as endorsements and/or certificates of insurance as required in Section 15; and ACHD shall then countersign and return the Site License to Licensee. Licensee will provide ACHD with monthly summaries of all fees paid and each Site License. Licensee acknowledges and agrees that the Annual Fees and each Site License Application Fee according to the adopted fee schedule in effect at the time, is reasonable and lawful. (b) Effective on the first anniversary of the Commencement Date of any Site License term, and continuing annually thereafter during the applicable Site License term, the applicable Annual Fee shall be increased by two percent (2%) over the Annual Fee paid for the immediately preceding year. 4.2. Permit. No payment is collected under this Agreement for any Permit issued in connection with the installation of Equipment at any Transportation Facility. Permit requirements, fees and charges are solely governed by the requirements imposed by the Code and shall be paid by Licensee accordingly. Fees and charges for any such Permit usually are collected by ACHD at the time such a Permit is applied for and issued. 4.3. Taxes. Licensee shall pay all applicable city, county and state taxes levied, assessed, or imposed by reason of this Agreement or those related to any of Licensee's Equipment and/or provided services. 4.4. Electric meter. Licensee shall install or cause to be installed, at Licensee's cost, a separate electric meter on a ground mounted pedestal or on Licensee's pad mounted equipment cabinet as required by the electric provider for the operation of its Equipment. Licensee's electric meter shall not, under any circumstances, interfere with ACHD's operations. Licensee shall be responsible for paying all charges for any electricity furnished by a utility licensee furnishing service to the Equipment. 4.5. Payments Made. All fees and/or additional payments shall be payable to ACHD at Ada County Highway District, 1301 N. Orchard Street, Suite 200, Boise, Idaho 83706, Attn: Development Services Department; or via electronic transfer to ACHD; or to such other persons or at such other places as ACHD may designate in writing. All payments shall be in lawful money of the United States of America. 4.6. Interest. In the event of default by Licensee on any payment owed pursuant to this Agreement or any Site License, the unpaid sum shall bear interest from the date the same became due at the rate of twelve percent (12%) per annum, or at the highest rate permitted under the laws of the state of Idaho, whichever is the lesser. 4.7. Late Charqes. Licensee acknowledges that late payment by Licensee to ACHD of sums due under this Agreement will cause ACHD to incur costs not contemplated by this Agreement, the exact amount of which will be difficult to ascertain. 8 APPROVED gly, if payment of any sum due from Licensee shall not be received by ACHD days after the due date, then Licensee shall pay to ACHD a late fee equal to DAT 06/02/22 uch overdue amount. The parties agree that such late charges represent a fair �E%UtJaLelA-2G22-°1°1 -I'll estimate of the costs that ACHD will incur by reason of the late payment IDDY Llcensee. Acceptance of such late charges by ACHD shall in no event constitute a waiver of Licensee's default with respect to such overdue amount, nor prevent ACHD from exercising any of the other rights and remedies granted in this Agreement. 5. Additional License and Permits Required by Code. To the extent not in contravention of any applicable Law, all of the Equipment will be installed, operated and maintained by or on behalf of Licensee in accordance with applicable provisions of the Code regulating wireless communications facilities, except as federal or state law may preempt or act to modify the Code at present or in the future. Licensee or its designee may be required to apply for and obtain a Permit issued by ACHD for work performed within the ROW, and the ROW will be used according to the plans submitted by Licensee and approved by ACHD in issuing a Permit. Notwithstanding the foregoing, Licensee's operation of the Equipment and work performed in the ROW shall not, under any circumstances, interfere with ACHD's operations or the public use of the ROW. Execution of this Agreement or any Site License does not constitute the issuance of a Permit. In the event of any discrepancy between the terms of this Agreement and a Permit, the Permit shall control. 6. Basic Design and Installation Requirements for Using Transportation Facilities. The basic design of the Equipment will be described in Exhibit 1 to each Site License. All of Licensee's construction and installation work for its Equipment on the Transportation Facilities shall be performed at Licensee's sole cost and expense and in a good and workmanlike manner. Payment of the Annual Fee under each Site License shall be made within forty-five (45) days of the initial Commencement Date of each Site License. When Licensee and ACHD have agreed on an existing Transportation Facility location as a suitable site for Licensee's Equipment, but the existing ACHD-owned pole needs to be replaced to accommodate the Equipment, then Licensee shall pay all costs related to replacing the ACHD-owned pole, including but not limited to installation of the replacement pole (the "Replacement Pole"), transfer of the streetlight fixtures, traffic signal and/or other items attached to the existing ACHD-owned pole to the Replacement Pole, and removal and salvage of the existing ACHD-owned pole to ACHD. Payment of the pole replacement costs does not provide Licensee with any ownership interest in the Replacement Pole. ACHD will be deemed to own the original ACHD-owned pole and the Replacement Pole. The installation or attachment of the Equipment using the Replacement Pole shall be at Licensee's sole cost and expense. 7. Common Conditions or Requirements Applicable to Site Licenses Issued Under this Agreement. 7.1. Submission of Plans and Specifications. For each installation, Licensee or its designee shall submit plans and specifications for ACHD review and approval which will be processed in a timely and reasonable fashion in accordance with ACHD's normal practices. 6 E IDI� 11 APPROVED .2. Siting Priority Preference. Locations should be prioritized based upon 06/02/22 's technical and radio frequency needs and construction costs. The shared use "E isting facility or structure is preferred to the construction of a new freestanding :1_E111UM reless facility. ACHD's preference for deployment of Small Wireless Facilities is the following order of priority, except as set forth below or as agreed between ACHD and the Licensee: (1) Attachment to or replacement of Transportation Facilities controlled by ACHD; (2) Attachment to non-ACHD assets (where attachment is not technically feasible, replacement of the non-ACHD asset); (3) Installation on new stand-alone pole. In addition, in any situation where Licensee has a choice of attaching its Equipment to either Transportation Facilities or third -party -owned property in the ROW, Licensee shall use good faith efforts to attach to the Transportation Facilities, provided that (a) such Transportation Facilities are at least equally suitable functionally for the operation of Licensee's network and (b) the construction and installation costs associated with such attachment over the length of the term are equal to or less than the cost to Licensee of attaching to the alternative third -party -owned property. In the event that no suitable Transportation Facilities or third -party -owned poles are functionally suitable, Licensee may, at its sole cost and expense, install its own poles. Design, location and height of proposed Licensee poles shall be reviewed and subject to administrative approval by ACHD prior to installation. Licensee's Equipment and poles must conform as closely as practicable with the design and color of poles existing in the vicinity of Licensee's Equipment or pole location. Subject to the terms and conditions of this Agreement and the applicable Supplement, Licensee will be responsible for all maintenance, repair and liability for all poles installed by Licensee in the ROW. Upon ACHD approval, the approved plans are inserted in the Exhibit 1 attached to a Site License. If Licensee desires to change or add new locations, Licensee will submit a proposed Site License indicating the additional Transportation Facilities that it wishes to use. 7.3. Aesthetics. Equipment placement in the ROW and/or on Transportation Facilities will.- (1) On a Transportation Facility or existing third -party owned pole, minimize impact to the aesthetics of the Transportation Facility or existing third -party pole; or (2) On a new pole, match the aesthetics (including height) of any adjacent Traffic Facilities and third -party poles, where feasible. 7.4. Residential Neighborhoods, Buildings of Special Interest, Other Limitations. 10 APPROVED DAT 06/02/22 �IJ "'UMB;R:- (1) Siting of Small Wireless Facilities within Residential Zoned Neighborhoods. (a) Small Wireless Facilities shall not be sited within residential zoned neighborhoods unless the governing board of the municipality or county having land use jurisdiction has first consented in writing to such siting. When placed near residential property, the Small Wireless Facilities shall be placed adjacent to a common property line between adjoining residential properties, such that the Small Wireless Facilities minimizes visual impacts equitably among adjacent properties (Figure 1). In the case of a corner lot, the Small Wireless Facility may be placed adjacent to a common property line between adjoining residential properties, or on the corner formed by two intersecting streets (Figure 1). If these requirements are not reasonably feasible from a construction, engineering or design perspective, Licensee may submit a written statement to ACHD requesting the Small Wireless Facility be exempt from these requirements. (b) Unless otherwise consented to in writing by the governing board of the municipality or county having land use jurisdiction, Small Wireless Facilities shall not be located within 20 feet of the closest exterior wall of the habitable portion (excluding porches, garages, and similar structures not typically considered to be the habitable portion of a home) of a residential building in a residential zoning district unless Licensee demonstrates that compliance with this requirement would be technically infeasible. (c) In addition, in areas zoned as residential by the municipality or county having land use jurisdiction, and unless otherwise consented to in writing by the governing board of the municipality or county having land use jurisdiction, no two small wireless facilities owned by Licensee shall be located within 600 feet of one another. ACHD may exempt Licensee from this requirement if: (i) Licensee demonstrates through technical network documentation that the minimum separation requirement cannot be satisfied for technical reasons (e.g. the minimum separation requirement will not result in effective coverage of the area), or (ii) ACHD determines, when considering the surrounding topography; the nature of adjacent uses and nearby properties; and the height of existing structures in the vicinity, that placement of a small cell wireless facility at a distance less than 600 feet from another small wireless facility owned by Licensee in the public right of way will meet the intent of reducing visibility and visual clutter of Small Wireless Facilities. 11 APPROVED )N:; 06/02/22 J %Uld B;R' A-2G22-0I aI (2) Subsequent to the consent in writing by the governing board of the municipality or county having land use jurisdiction to the placement of a Small Wireless Facility adjacent to a commercial establishment such as a shop or restaurant, or any public building listed on the National Register of Historic Places or otherwise designated as a historic place by state and local governmental entities, care should be taken to locate the new pole and Equipment such that it does not negatively impact access to the business or building. Equipment on new stand-alone poles shall not be located in -front of primary walkways, primary entrances or exits, or in such a way that would impede a delivery to the building. New stand-alone poles should be located between properties as much as possible. Figure 1: New Poles and Equipment Adjacent to Residential Properties — - — — — _--PropertYA ne I I I U Small cell on the -- comer should not Street locate smaUseli�i obstruct vehicular or between property lines pedestrian view 7.5. Minimum Distances for New Stand -Alone Poles. New stand-alone poles shall be placed a minimum of: (1) 10 feet from any traffic signal or street light; (2) 25 feet from any other utility pole; and 12 APPROVED DAT 06/02/22 �IJ "'UMB;R:- (3) 15 feet from the exterior of the base of any street tree unless this not reasonably feasible from a construction, engineering or design perspective, Licensee may submit a written statement to ACHD requesting the Small Wireless Facility be exempt from these requirements. 7.6. Prohibition of Traffic Impairment. The location of Equipment on a new stand- alone pole will not: (1) Alter vehicular circulation or parking within the ROW; nor (2) Obstruct or Impede vehicular, bicycle, or pedestrian access or visibility along the ROW; nor (3) Obstruct or impede ACHD maintenance activities within the ROW. (4) New poles shall not be placed within sight triangles at intersections. 7.7. Americans with Disabilities Act ("ADA") Compliance. All Equipment and any new stand-alone pole located within the ROW shall be located such that it meets ADA requirements and in addition: (1) Point encroachments may not reduce pedestrian clear space below 60 inches. (2) Any new poles may not be placed within the sidewalk in residential areas. (3) Any Equipment placed next to an existing pole in the sidewalk must be placed on the side of the pole with the minimum impact to pedestrian clear space without impeding access to pedestrian push buttons and other accessible infrastructure on existing poles. 7.8. Damage to ACHD Property. If Licensee damages or disturbs the surface or subsurface of any ROW or adjoining property, pole, streetlight fixture, traffic signal, or other public improvement, in the exercise of the rights granted through this Agreement, Licensee will promptly, at its own expense, and in a manner acceptable to ACHD, in ACHD's reasonable judgment, repair the damage or disturbance immediately. 7.9. Public Emergency. In the event of an emergency or to protect the public health or safety, prior to ACHD accessing or performing any work on a Transportation Facility on which Licensee has installed Equipment, ACHD may require Licensee to deactivate such Equipment if any of ACHD's employees or agents must move closer to the Equipment than the FCC recommended minimum distance. In such case, ACHD will contact Licensee at (800) 832-6662 to request immediate deactivation. 13 I. APPROVED 10. Transportation Facility Replacement. DAT 06/02/22 (a) Licensee hereby acknowledges that Licensee shall bear all risk of E%UtIB:RIA2G22 connection with- (i) damaged, downed or deteriorated Transportation Facilities allu ipment where such damage is caused by Licensee or any other person, entity, or party, except to the extent such damage is caused solely by the negligence of ACHD; (ii) the performance by Licensee of all maintenance and repair required under this Agreement, or the failure or neglect to perform such maintenance and repair; and/or (iii) repair or maintenance necessitated by Licensee's design, installation or use of the Equipment. If a Transportation Facility needs replacement or repair in order to hold Equipment due to the occurrence of any or a combination of clauses Q, ii and j[D above, Licensee shall replace the same at Licensee's cost within a timeframe reasonably determined by ACHD and upon ACHD's approval. (b) Licensee may, at Licensee's cost, provide a spare pole sufficient to serve as a Replacement Pole, which will be stored at ACHD's Public Works Yard as applicable (the "Yard") at no cost to Licensee, and which will be available for use by ACHD and Licensee, as applicable, to replace the Transportation Facility as provided in this Section 7.10_ (c) In the event Licensee provides a spare pole, and in lieu of Licensee performing the replacement, Licensee will use the spare pole to replace the damaged existing pole within twenty-four (24) hours of the need for the replacement, and shall deliver the damaged pole and any damaged equipment to the applicable Yard. (d) Licensee may reinstall its equipment once the Replacement Pole is installed and functioning as a Transportation Facility and approved in writing by ACHD. (e) Licensee shall have the right to temporarily use a Transportation Facility for its operation during the replacement period at a location reasonably acceptable to ACHD and Licensee. (f) In the event ACHD is responsible for replacing the Transportation Facility with a Replacement Pole, ACHD shall only be responsible for the cost of a standard pole, and Licensee shall be responsible for the cost of the Replacement Pole in excess of the cost of a standard pole. For the avoidance of doubt, Licensee shall be responsible for replacement of all new Transportation Facilities it installs, and ACHD shall be responsible for any Transportation Facilities it installs. If ACHD is responsible for replacing a Transportation Facility, it shall pay for a basic Transportation Facility, and Licensee shall pay for any extra cost to customize the Transportation Facility to Licensee's specifications. 7.11. Removal and Relocation. (a) Licensee understands and acknowledges that ACHD may require Licensee to relocate one or more of its Equipment installations. Licensee shall at ACHD's direction and upon ninety (90) days prior written notice to Licensee, relocate such Equipment at Licensee's sole cost and expense whenever ACHD reasonably determines 14 E IDI� 11 APPROVED DAT 06/02/22 J %Uld B;R' A-2G22-01 a1 elocation is needed for a public use. In such case, ACHD shall use reasonable afford Licensee a reasonably equivalent alternate location. If Licensee fails to any Equipment as requested by the ACHD in accordance with the foregoing , ACHD (i) may treat such failure as a Default under Section 17 or (ii) may remove or relocate the Equipment at Licensee's sole cost and expense, without further notice to Licensee. If ACHD elects to remove or relocate the Equipment in accordance with the foregoing clause Q, Licensee shall pay to the ACHD as applicable actual, and documented costs and expenses incurred by ACHD in performing any removal work and any storage of Licensee's property after removal within thirty (30) days of the date of a written demand for this payment from ACHD. (b) In the event Licensee desires to relocate any Equipment from one Transportation Facility to another, Licensee shall so advise ACHD. ACHD may, in the sole discretion of ACHD, use reasonable efforts to accommodate Licensee, at Licensee's cost, by making another reasonably equivalent Transportation Facility available for use in accordance with and subject to the terms and conditions of this Agreement and to Section 7_1 above. 7.12. Compliance with Law Required. The work done by Licensee in connection with the installation, construction, maintenance, repair, and operation of Equipment on poles within the ROW shall be subject to and governed by all pertinent local and state laws, rules, regulations, including the ACHD's ROW regulations, that are applicable to ensuring the work done does not unduly inconvenience the public in the use of the surface of the streets and sidewalks. 7.13. Identification of Utility Lines. Prior to beginning any excavation or boring project on ROW, Licensee engage in utility locator service. Licensee has the responsibility to protect and support the various utility facilities of other providers while conducting construction, installation, and maintenance operations. 7.14. Submission of Engineering Plans. In conformance with Section 4.1(a), and prior to installation, Licensee shall submit engineering plans to the ACHD Development Services Manager for review and approval in accordance with ACHD's Right -of -Way Regulations. 7.15. Non -exclusiveness. The rights and privileges granted to Licensee under this Agreement, and each Site License described herein, are nonexclusive. 7.16. Non-interference. The following provisions shall apply to ensure and/or avoid interference (both physical interference and radio frequency interference) resulting from Licensee's installation, operation and/or maintenance of its Equipment: (a) RF Interference. Licensee shall ensure that the Equipment will not cause radio frequency interference with wireless communication facilities or devices, cable television, broadcast radio or television systems, satellite broadcast systems, or traffic, public access or safety, or other communications signal equipment, except as expressly permitted by the provisions of any Site License. 15 APPROVED (b) Existing and Future Uses. Licensee shall not interfere in any manner 06/02/22 uses of ACHD's property including ROW, and including but not limited to sanitary " E fiber optics, water mains, storm drains, gas mains, poles, aerial and underground 'U'`1B R A2G22°1°1 and telephone wires, streetlight fixtures, cable television, and other telecommunications, utility, and municipal property without the express written approval of the owner(s) of the affected property or properties. Additionally, to the extent any third party has a statutory right to use the ROW or ACHD's Transportation Facilities pursuant to any applicable Laws, Licensee agrees to remove its Equipment and the applicable Site Supplement shall be terminated; but prior to removal, Licensee shall be afforded ninety (90) days to relocate the facility to a location agreed upon by ACHD and Licensee. (c) ACHD Communications. Licensee shall not interfere in any manner with current or future traffic safety equipment or communications of ACHD. (d) ACHD Interference. ACHD reserves the right, but not the obligation, to maintain and operate its Transportation Facilities in such reasonable manner as will best enable it to fulfill its own service requirements or obligations. However, ACHD agrees that it and/or any other tenants, licenses, or users of the ROW who currently have or in the future take possession of space within the ROW will be permitted to install only such equipment that is of the type and frequency which will not cause harmful interference to the then existing Equipment of Licensee which is measurable in accordance with then existing industry standards, but only to the extent Licensee has (i) provided ACHD with prior written notice of any such equipment that could cause such harms, and (ii) demonstrated to ACHD a high degree of certainty that such equipment could cause such harm, as determined in the sole discretion of ACHD. (e) Remedies. Without limiting any other rights or remedies, if interference occurs and continues for a period in excess of twenty-four (24) hours following notice to Licensee via telephone to Licensee's Network Operations Center at (800) 832-6662, Licensee shall reduce power or cease operations of the interfering equipment until the interference is cured. The Parties acknowledge that there will not be an adequate remedy at law for noncompliance with the provisions of this Section 7 and therefore ACHD shall have the right to equitable remedies such as, without limitation, injunctive relief and specific performance. 8. Damage to Licensee's Equipment. In the event of any damage to Licensee's Equipment, ACHD shall have no liability or responsibility to repair the same unless such damage arose from the negligence or willful misconduct of ACHD, its employees, agents, or contractors; provided however, in such case, ACHD's liability shall be limited to the cost to repair or replace the same. 9. Title and Ownership. 9.1. Title to the Transportation Facilitv. Title to the Transportation Facilities shall remain with ACHD. Subject to abandonment as set forth in Section 3.4 hereinabove, title to the Equipment, exclusive of the Transportation Facility (original or replacement) used for support, but including ground mounted equipment, shall remain with Licensee and 16 E IDI� 11 APPROVED Institute Licensee's personal property and equipment, and not fixtures or )A:E 06/02/22 Iments attached to the land. E'U'`1BERA2G22°1°1 2 No Ownership in ACHD Property. Neither this Agreement, nor any license issued herein, nor any Permit separately issued for installation of any Equipment, regardless of the payment of any fees and charges, shall create or vest in Licensee any ownership or property rights in any portion or elements of the Transportation Facilities, the underlying real property on which any ACHD-owned poles or any Equipment is located, or any portion of the ROW. Additionally, except as otherwise expressly provided herein, Licensee acknowledges that this Agreement does not constitute or create a leasehold interest or right to the benefit of any ACHD property or portion thereof. Nothing contained in this Agreement shall be construed to compel Licensee to construct, retain, extend, place, or maintain any poles or other facilities for the benefit of ACHD which are not needed for ACHD's own service requirements. 9.3. "As Is" Condition. Licensee accepts the Transportation Facilities identified in any Site License, or any Replacement Pole, in its "AS IS" condition, without representation or warranty of any kind by ACHD, or any ACHD officer, agent, or employee, and subject to all applicable laws, rules and ordinances governing the use of the ACHD Transportation Facilities or poles for Licensee's intended purpose. 10. Reserved. 11. Waiver and Estoppel Statement by Licensee. Licensee acknowledges and agrees that the license granted under this Agreement is a permissive use of the ROW pursuant to this Agreement. Licensee further acknowledges and agrees that it specifically assumes the risk that Licensee has expended funds pursuant to and in connection with this Agreement, and this Agreement may not be in effect for a period (if terminated pursuant to the provisions hereof) sufficient for Licensee to realize the economic benefit from such expenditures. Licensee further acknowledges and agrees that it is solely responsible for obtaining the approval of any local land use agencies with jurisdiction over Licensee's use of the ROW. 12. Maintenance and Repair. Subject to Section 7, ACHD shall maintain and keep its Transportation Facilities containing Equipment in accordance with ACHD's standard maintenance requirements, at its sole cost and expense. Licensee shall keep the Equipment and other improvements by Licensee on the Transportation Facilities, if any, in good repair. 13. Hazardous Substances. Licensee will be solely responsible for and will indemnify and hold harmless ACHD, its respective directors, officers, employees, agents, successors, and assigns from and against any and all loss, damage, cost, expense or liability directly or indirectly arising out of or attributable to the use, generation, storage, release, threatened release, discharge, disposal, or presence of Hazardous Substances on, under or about the ROW including without limitation (a) all damages, (b) the costs of any required or necessary repair, cleanup or detoxification of the property and (c) all reasonable costs and expenses incurred by ACHD in connection therewith, including but not limited to reasonable attorneys' 17 E IDI� N- APPROVED nsee's obligations pursuant to this Section shall survive the termination of this DAT 06/02/22 J %Uld B;R' A-2G22-01 a1 14.1. Waiver of Claims. Licensee waives any and all claims, demands, causes of action and rights it may assert against ACHD on account of any Loss, damage, or injury to any Equipment as a result of any event or occurrence which is beyond the reasonable control of ACHD. 14.2. Limitation of ACHD's Liability. If damages to ACHD's Transportation Facilities or the ROW results from any fire, or other casualty of the kind covered by standard fire insurance policies with extended coverage, except as caused solely by ACHD's, its employees', agents' or contractors' negligence or willful misconduct, then Licensee shall be responsible for all damages resulting from such to the extent due to Licensee's use of ACHD's Transportation Facilities or the ROW, including damage to the ROW. ACHD is not responsible for maintaining any separate policy for fire coverage related to Licensee's use of their Equipment in the ROW. Licensee shall be responsible for all costs related to damage to ACHD's Equipment except as caused by ACHD's, its employees', agents' or contractors' negligence or willful misconduct. 14.3. Indemni . Each Party shall indemnify, defend, and hold the other harmless against any claim of liability or Loss from personal injury or property damage resulting from or arising out of the negligence or willful misconduct of the indemnifying Party, its employees, contractors or agents, except to the extent such claims or damages may be due to or caused by the negligence or willful misconduct of the other Party, or its employees, contractors or agents. In addition, Licensee will indemnify, defend, and hold ACHD harmless from and against any claim of liability or lass from personal injury or property damage relating to, resulting from, or arising out of Licensee's Equipment in the ROW, except to the extent such claim, damages, or injury is caused by the negligence or willful misconduct of ACHD. The indemnified Party will provide the indemnifying Party with prompt, written notice of any claim covered by this indemnification; provided that any failure of the indemnified Party to provide any such notice, or to provide it promptly, shall not relieve the indemnifying Party from its indemnification obligation in respect of such claim, expect to the extent the indemnifying Party can establish actual prejudice and direct damages as a result thereof. The indemnified Party will cooperate appropriately with the indemnifying Party in connection with the indemnifying Party's defense of such claim. The indemnifying Party shall defend any indemnified Party, at the indemnified Party's request, against any claim with counsel reasonably satisfactory to the indemnified Party. The indemnifying Party shall not settle or compromise any such claim or consent to the entry of any judgment without the prior written consent of each indemnified Party and without an unconditional release of all claims by each claimant or plaintiff in favor of each indemnified Party. 14.4. Waiver of Subrogation. The parties hereby waive and release any and all rights of action for negligence against the other which may hereafter arise on account of damage to the Equipment, ACHD's Transportation Facilities or to the ROW, resulting from 18 APPROVED or other casualty of the kind covered by standard fire insurance policies with coverage, regardless of whether or not, or in what amounts, such insurance is now DAT O6/02/22 fter carried by the parties, or either of them. These waivers and releases shall apply �E %UtJ aL e; A-2G22-1°1 the parties and they shall also apply to any claims under or through either party as a result of any asserted right of subrogation. All such policies of insurance obtained by either party concerning the Equipment, ACHD's Transportation Facilities or to the ROW shall waive the insurer's right of subrogation against the other party. Licensee self -insures its property insurance and in satisfaction of the insurer's waiver of subrogation requirement will include ACHD as joint loss payee to the extent of its insurable interest which would have been covered had Licensee purchased property insurance. 15. Insurance Reauirements. 15.1. Licensee's Insurance. Licensee shall procure and maintain insurance in the amounts and form specified in attached Exhibit B. 15.2. Endorsements and Certificates. Endorsements and Certificates of Insurance or Self -Insurance submitted as verification of coverage to ACHD, will by reasonably relied upon by ACHD as evidence of coverage but this acceptance and reliance will not waive or alter in any way the insurance requirements or obligations of this Agreement. If any of the required policies expire during the life of this Agreement, Licensee must forward renewal or replacement Endorsements and Certificates to ACHD within fifteen (15) Business Days after the renewal date containing all the necessary insurance provisions. 16. Assianment/Sublettin 16.1. It is expressly agreed and understood by and between the parties hereto, that Licensee will not have the right to assign, sublease, transfer, hypothecate or sell any of its rights under this Agreement except upon the prior express written consent of ACHD, which consent shall not be unreasonably withheld, conditioned, or denied. Notwithstanding the foregoing, Licensee shall remain as a guarantor of its assignee's obligations under this Agreement, and approval by ACHD of any assignment shall be conditioned upon written confirmation that Licensee will remain as such in a form reasonably acceptable to ACHD. 16.2. Any non -permitted transfer or assignment of the right to attach Equipment to an ACHD-owned pole shall be void and not merely voidable. ACHD may, in its sole discretion and in addition to all other lawful remedies available to ACHD under this Agreement, collect any fees owed from Licensee all without prejudicing any other right or remedy of ACHD under this Agreement. No cure or grace periods shall apply to transfers or assignment prohibited by this Agreement or to the enforcement of any provisions of this Agreement against a transferee or assignee who did not receive ACHD's consent. 16.3. Notwithstanding anything to the contrary in this Section 14, without any approval or consent of ACHD, this Agreement and/or any Site License may be sold, assigned or transferred by Licensee to (i) any entity in which Licensee directly or indirectly holds an equity or similar interest; (ii) any entity which directly or indirectly holds an equity E IDI� 11 APPROVED r interest in Licensee; or (iii) any entity directly or indirectly under common control nsee. Licensee may assign this Agreement and/or any Site License to any entity DA 06/02/22 quires all or substantially all of Licensee's assets in the market defined by the E'U'`1BRA2G22°1°1 hich the Transportation Facility is located by reason of a merger, acquisition or other usiness reorganization without approval or consent of ACHD. 17. Default. It is a "Default" if either party fails to comply with this Agreement or any Site License and does not remedy the failure within thirty (30) days after written notice by the other Party or, if the failure cannot reasonably be remedied in such time, if the defaulting party does not commence a remedy within the allotted thirty (30) days and diligently pursue the cure to completion within sixty (60) days after the initial written notice. 18. Termination/Revocation. In the event of a Default, without limiting the non - defaulting payment in the exercise of any right or remedy which such party may have by reason of such Default, the non -defaulting party may terminate this Agreement if the Default affects all Site Licenses and the Agreement as a whole, or any Site License subject to the Default, and/or pursue any remedy now or hereafter available to the non - defaulting Party under the Laws or judicial decisions of the State of Idaho. Further, upon a Default, the non -defaulting party may at its option (but without obligation to do so), perform the defaulting parry's duty or obligation. The costs and expenses of any such performance by the non -defaulting party shall be due and payable by the defaulting party upon invoice therefor. 19. Records, Audits. (a) Required Records. Licensee will maintain complete records pursuant to the applicable federal, state and local laws and regulations. Upon reasonable request by ACHD, and within fifteen (15) business days notice to Licensee at the notice addresses, Licensee will provide ACHD with a report — but no more frequently than once a year — that includes at least the following information: (i) a list of all Site Licenses; (ii) the location of all of Licensee's Equipment, and (iii) a summary of all Annual Fees and Application Fees and any other amounts paid by Licensee or due and owing to ACHD to date. ACHD may require such applicable additional reasonable non -confidential information, records and documents from Licensee from time to time as are appropriate in order to reasonably monitor compliance with the terms of this Agreement. Additionally, ACHD may require Licensee to collect reasonable supplementary information as needed. (b) Production of Records. Licensee shall provide such records within ten (10) Business Days of a request by ACHD for production of the same unless additional time is reasonably needed by Licensee, in which case, Licensee shall have such reasonable time as needed for the production of the same. Such records shall be made available in the County. If any person other than Licensee maintains records on Licensee's behalf, Licensee shall be responsible for making such records available to ACHD for auditing purposes pursuant to this Section 19. 20. Surrender. Within sixty (60) days of the expiration of the Supplement Term of any Site License, or upon the earlier termination thereof, Licensee shall remove all Equipment C APPROVED or ground mounted, at its sole expense, shall repair any damage to ACHD's rtation Facilities or the ROW caused by such removal, and shall restore ACHD's DAT 06/02/22 rtation Facilities to the condition in which they existed prior to the installation of :Ij%U69 BER; n-zGzz-°'°9 pment (whether attached or ground mounted), reasonable wear and tear and loss y casualty or other causes beyond Licensee's control excepted. 21. Notices. Any notice, request, demand, statement, or consent herein required or permitted to be given by either party to the other hereunder, shall be in writing signed by or on behalf of the party giving the notice and addressed to the other at the address as set forth below: Licensee New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration Site No. Ada County Highway District Wireless MLA (ID) 1025 Lenox Park Blvd NE, 3rd Floor Atlanta, GA 30324 With a copy to: New Cingular Wireless PCS, LLC Attn: AT&T Legal Dept — Network Operations Site No. Ada County Highway District Wireless MLA (ID) 208 S. Akard Street Dallas, TX 75202-4206 ACHD Ada County Highway District 1301 N. Orchard Street, Suite 200 Boise, Idaho 83706 Attn: Development Services Department Each party may by notice in writing change its address for the purpose of this Agreement, which address shall thereafter be used in place of the former address. Each notice, demand, request, or communication which shall be mailed to any of the aforesaid shall be deemed sufficiently given, served, or sent for all purposes hereunder when properly sent and received, refused or returned undelivered. Any communication made by e-mail or similar method shall not constitute notice pursuant to this Agreement. 22. Miscellaneous. 22.1. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties, and supersedes all negotiations, understandings or agreements. Any amendments to this Agreement must be in writing and executed by the Parties. 22.2. Severability. If any provision of this Agreement is invalid or unenforceable with respect to any Party, the remainder of this Agreement or the application of such 21 to persons other than those as to whom it is held invalid or unenforceable, shall APPROVED ffected and each provision of this Agreement shall be valid and enforceable to DAT 06/02/22 t extent permitted by law. j `�Uld B;R'A-za 2 1 "'12.3. Governing Law. This Agreement shall be governed by applicable federal laws and the laws of the State of Idaho without regard to choice of law rules. Should the laws of the State of Idaho be amended with respect to the siting, placement, modification or construction of wireless facilities (including, but not limited to, the types of facilities described herein), the Parties shall modify the terms of this Agreement to conform to such laws. 22.4. Jurisdiction and Venue. THE PROVISIONS OF THE AGREEMENT SHALL BE CONSTRUED UNDER, AND IN ACCORDANCE WITH, THE LAWS OF THE STATE OF IDAHO, AND ALL OBLIGATIONS OF THE PARTIES CREATED HEREUNDER SHALL BE PERFORMED IN ADA COUNTY, IDAHO. THEREFORE, IN THE EVENT ANY COURT ACTION IS BROUGHT DIRECTLY OR INDIRECTLY BY REASON OF THIS AGREEMENT, THE COURTS OF ADA COUNTY, IDAHO SHALL HAVE JURISDICTION OVER THE DISPUTE AND PROPER VENUE SHALL BE IN ADA COUNTY. 22.5. Exhibits. All Exhibits referred to and attached to this Agreement are incorporated herein by reference. 22.6. Authority to Execute. Any individual executing this Agreement on behalf of or as representative for a corporation or other person, partnership or entity, represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of such party, and this Agreement is binding upon such party in accordance with its terms. ACHD hereby designates, and authorizes, its Director, Bruce S. Wong or his successor or designee, to execute all Site Licenses entered into under this Agreement. These designations and authorization may be changed by ACHD upon written notice. 22.7. No Waiver. A Party shall not be excused from complying with any of the terms and conditions of this Agreement by any failure of a Party upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. 22.8. Force Majeure. With respect to any provisions of this Agreement, the violation or non-compliance of any term of this Agreement which could result in the imposition of a financial penalty, liquidated damages, forfeiture or other sanction upon a Party, such violation or non-compliance shall be excused where such violation or non- compliance is the result of acts of God, war, civil disturbance, strike or other labor unrest, or other events, the occurrence of which was not reasonably foreseeable by such Party and is beyond such Party's reasonable control. 22.9. Limitation of Liability. Except for indemnifications pursuant to Sections 13 and 14, neither Party shall be liable to the other, or any of their respective agents, representatives, employees for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages (as further 22 E IDI� 11 APPROVED DAT 06/02/22 J %Uld B;R' A-2G22-01 a1 in Section 14.4), loss of data, or interruption or loss of use of service, even if )f the possibility of such damages, whether under theory of contract, tort negligence), strict liability or otherwise. mmmm�22.10. Non -Exclusive Remedies. No provision in this Agreement made for the purpose of securing enforcement of the terms and conditions of this Agreement shall be deemed an exclusive remedy or to afford the exclusive procedure for the enforcement of said terms and conditions, but the remedies herein provided are deemed to be cumulative. 22.11. No Third -Party Beneficiaries. It is not intended by any of the provisions of this Agreement to create for the public, or any member thereof, a third -party beneficiary right or remedy, or to authorize anyone to maintain a suit for personal injuries or property damage pursuant to the provisions of this Agreement. The duties, obligations and responsibilities of ACHD with respect to third parties shall remain as imposed by Idaho law. 22.12. Time is of the Essence. Time is of the essence with regard to the performance of all of Licensee's obligations under this Agreement. 22.13. Attorneys' Fees. Should any dispute arising out of this Agreement lead to litigation, the prevailing party shall be entitled to recover its costs of suit, including (without limitation) reasonable attorneys' fees. 22.14. Contacting Licensee. Licensee shall be available to ACHD, its officers, employees and agents 24 hours a day, seven days a week, regarding problems or complaints resulting from the attachment, installation, operation, maintenance, or removal of the Equipment. ACHD, its officers, employees and agents may contact by telephone the network control center operator at telephone number: (800) 832-6662, regarding such problems or complaints. 22.15. Appropriations by ACHD. Article VIII, Section 3 of the Constitution of the State of Idaho provides that "[n]o county, city, board of education, or school district, or other subdivision of the state shall incur any indebtedness, or liability, in any manner, or for any purpose, exceeding in that year, the income and revenue provided for it in such year, without the assent of two thirds (2/3) of the qualified electors thereof voting at an election to be held for that purpose. Any indebtedness or liability incurred contrary to this provision shall be void... " Licensee therefore acknowledges that notwithstanding any other provision of this Agreement, no obligation assumed by or imposed upon ACHD by this Agreement shall require the performance of any act by ACHD except to the extent that the cost and expense of such performance may be paid by funds legally available to ACHD to meet the cost and expense of such performance, as determined by ACHD. Licensee further acknowledge that this Agreement shall not be construed as obligating ACHD to make future appropriations for the performance of any obligations hereunder beyond those obligations expressly set forth herein. 23 .16. Non -Discrimination. Licensee agrees not to engage in employment APPROVED that discriminate against any employee or applicant for employment based on DAT 06/02/22 lor, religion, national origin, sex, sexual orientation, gender identity, veteran �,E%UtJaLelA-2G22-I°I ge, disability, or political belief or affiliation, unless exempted by state or federal he event non-compliance occurs with this Section occurs, Licensee, upon written notification by ACHD, shall commence compliance procedures within thirty (30) days. 22.17. No Partnership or Joint Venture. The relationship between ACHD and Licensee is at all times solely that of licensors and licensee, not that of partners or joint venturers. 22.18. Incorporation of Recitals. The recitals set forth hereinabove are herby incorporated as if set forth in full. 22.19. Copy of Agreement. A copy of this Agreement shall be maintained by ACHD and made available for public records requests in accordance with applicable Law. [Signature page follows] 24 E IDI� 11 APPROVED ESS WHEREOF, the parties have executed this Agreement as of this day Da:e 06i02i22 20_ (the "Execution Date"). CE `�Uld B;R' A-zazz-01 as OR: LICENSEE: ADA COUNTY HIGHWAY DISTRICT By: % C Print Nam o D Its: Vre,5 25 NEW CINGULAR WIRELESS PCS, LLC By: AT&T Mobility Corporation Its: Manager By: Print Name: Its. , E IDI� 11 APPROVED DAT 06/02/22 �IJ % , B;R:- EXHIBIT A Form of Site License This Site License ("Site License"), made this day of , 20_ ("Effective Date") between ADA COUNTY HIGHWAY DISTRICT, with an address of Ada County Highway District, 3775 Adams Street, Garden City, Idaho 83714, Attn: Right of Way Division, hereinafter designated "ACHD", and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company, with its principal offices at 1025 Lenox Park Blvd NE, 3rd Floor, Atlanta, GA 30319, hereinafter designated "Licensee": 1. Site License. This is a Site License as referenced in that certain Master License Agreement for the Use of Ada County Highway District Property and Rights -of -Way in Connection with the Operation of a Wireless Network, between ACHD and Licensee dated , 20_ ("Agreement"). All of the terms and conditions of the Agreement are incorporated hereby by reference and made a part hereof without the necessity of repeating or attaching the Agreement. In the event of a contradiction, modification or inconsistency between the terms of the Agreement and this Site License, the terms of this Site License shall govern. Capitalized terms used in this Site License shall have the same meaning described for them in the Agreement unless otherwise indicated herein. 2. Project Description and Locations. Licensee shall have the right to use ACHD Transportation Facilities for Equipment at the designated areas in the ROW as further described in Exhibit 1 attached hereto (the "Licensed Area"). 3. Equipment. The Equipment to be installed at the Licensed Area is described in Exhibit 1 attached hereto. 4. Term. The term of this Site License shall be as set forth in Section 3.2 of the Agreement. 5. Fees. The initial Annual Fee for the term of this Site License shall be [$270.00 or $135], as determined in accordance with the Agreement and as adjusted by Section 4 of the Agreement. The Application Fee paid upon submission of the request for this Site License by Licensee is $500.00, for proposed Site License locations as determined in accordance with the Agreement and Licensee confirms the prior payment to ACHD of the Application Fee upon submittal of the draft of this Site License. 6. Commencement Date. The first day of the month following the date Licensee has commenced installation of its Equipment at the Licensed Area. 7. Approvals/Fiber. It is understood and agreed that Licensee's ability to use the Licensed Area is contingent upon its obtaining all of the certificates, permits and other approvals (collectively the "Governmental Approvals") that may be required by any Federal, State or Local authorities, as well as a satisfactory fiber and electrical connection which will 26 APPROVED icensee use of the Licensed Area as set forth above. In the event that (i) any of Da:e 06i02i22 plications for such Governmental Approvals should be finally rejected; (ii) any ental Approval issued to Licensee is canceled, expires, lapses, or is otherwise 'U'`1B R A2G22°1°1 n or terminated by governmental authority; (...) iii Licensee determines that such Governmental Approvals may not be obtained in a timely manner; (iv) Licensee determines that it will be unable to obtain in a satisfactory manner, or maintain any fiber or power connection; or (v) Licensee determines that the Licensed Area is no longer technically compatible for its use, Licensee shall have the right to terminate this Site License. Notice of Licensee's exercise of its right to terminate shall be given to ACHD in writing by certified mail, return receipt requested, and shall be effective upon the mailing of such notice by Licensee, or upon such later date as designated by Licensee. All rentals paid to said termination date shall be retained by ACHD. Upon such termination, this Site License shall be of no further force or effect except to the extent of the representations, warranties and indemnities made by each party to the other hereunder. Otherwise, Licensee shall have no further obligations for the payment of Rent to ACHD. 8. Miscellaneous. [Signature page follows] 27 APPROVED DAT 06/02/22 C; %Uld B;R' A-2G22-01 a1 D to be effective as of the date shown above. ADA COUNTY HIGHWAY DISTRICT By: Print Name: Its: Exhibits: Exhibit 1 28 LICENSEE: NEW CINGULAR WIRELESS PCS, LLC By: AT&T Mobility Corporation Its: Manager By: Print Name: Its: E IDI� Il APPROVED DAT 06/02/22 C; %Uld B;R' A-2G22-0l al Exhibit 1 Licensed Area WE E IDI� 11 APPROVED DAT 06/02/22 �IJ % , B;R:- General. EXHIBIT B Licensee's Insurance Requirements A. Prior to performing work under this Agreement, Licensee shall furnish ACHD additional insured, primary and non-contributory, and waiver of subrogation endorsements in addition to certificates of insurance on a standard insurance industry ACORD form. The insurance coverage required must be issued by an insurer eligible to transact business in the State of Idaho, possessing a current A.M. Best, Inc. rating of A- VII or better, and coverage shall be reasonably satisfactory to ACHD. B. Licensee shall, and shall require any of its contractors or subcontractors to obtain and maintain substantially the same coverage as required of Licensee, procure and maintain, until all of their obligations have been discharged the insurances set forth below. C. The insurance requirements set forth in no way limit the indemnity covenants contained in this Agreement. D. ACHD in no way warrants that the insurance limits contained in this Agreement are sufficient to protect Licensee from liabilities that might arise out of the performance of this Agreement by Licensee and its contractors, and Licensee is free to purchase any additional insurance as may be determined necessary. E. Failure to demand evidence of full compliance with the insurance requirements in this Agreement or failure to identify any insurance deficiency will not relieve Licensee from, nor will it be considered a waiver of, its obligation to maintain the required insurance at all times during the performance of this Agreement. 2. Scope and Limits of Insurance. Licensee shall provide coverage with limits of liability stated below. A. Commercial General Liability -Occurrence Form. Licensee must maintain Commercial General Liability insurance on ISO Form CG 00 01 or its equivalent with a limit of $2,000,000 per occurrence for bodily injury and property damage and $4,000,000 general aggregate including premises -operations, products and completed operations, independent contractor, contractual liability, personal injury and advertising injury. The limits required by this Section can be met by either providing a primary policy or in a combination with umbrella/excess liability polic(ies). Any Umbrella (Excess) Liability Insurance shall be follow form and be primary, and noncontributory before any other primary, umbrella, or any other insurance obtained by the Additional Insureds will be triggered. B. Commercial Automobile Liability. Licensee must maintain Commercial Automobile Liability insurance in the amount of $1,000,000 combined single limit each 30 APPROVED for bodily injury and property damage covering all of Licensee owned, hired Da:e 06i02i22 on -owned vehicles assigned to or used in the performance of Licensee's work or under this Agreement. J %Uld B;R' A-2G22 1 -C. Workers Compensation and Employers Liability Insurance. Licensee must maintain Workers Compensation insurance in compliance with the statutory requirements of the state of operation and Employer's Liability with a limit of $1,000,000 for each accident; $1,000,000 disease for each employee; $1,000,000 disease -policy limit. D. Builders' Risk/Installation Floater Insurance. Builders' Risk/Installation Floater Insurance must be maintained until completion of any construction activities on the property. This risk may be self -insured under the same terms as required by this Agreement. (a) The Builders Risk/Installation Floater insurance must include as named insureds, ACHD, Licensee, and all tiers of contractors and others with an insurable interest in the Work (b) The Licensee is responsible for payment of all deductibles under the Builders' Risk/Installation Floater insurance policy. 3. Additional Policy Provisions Required. A. Miscellaneous Provisions. (1) Licensee's required commercial general liability and automobile liability insurance coverage must be primary insurance with respect to ACHD, its officers, officials and employees. Any insurance or self-insurance maintained by ACHD, its officers, officials and employees shall be in excess of the coverage provided by Licensee and must not contribute to it. (2) Licensee's required commercial general liability insurance must apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability and duties of the named insured. (3) To the extent allowed by laws, the policies must contain a waiver of subrogation as to ACHD, its officers, officials and employees. Licensee shall require such subrogation waivers of its subcontractors of ever tier and suppliers. Licensee and its subcontractors of every tier and suppliers' policies shall provide such waivers by endorsements acceptable to ACHD. (4) Licensee shall provide an updated certificate of insurance evidencing CGL completed operations coverage on an annual basis. The annual certificate shall be delivered to ACHD at the time of inception of each policy period for three (3) years following completion and acceptance of the work, including the required Additional Insureds, primary and noncontributory and waivers of subrogation set forth herein. 31 APPROVED (5) If a Certificate of Insurance is submitted as verification of coverage, ill reasonably rely upon the Certificate of Insurance as evidence of coverage but )AT 06/02/22 ["+,nnt-n nnA relinnnn AAA11 nn+►si'Mive nr nl+nr in mnv WOLF +he inei ironna rern firemen e `j %Utja=R:A2L22-0 9 Ptions of this Agreement. (6) Upon receipt of notice from its insurer, Licensee shall use commercially reasonable efforts to provide ACHD with thirty (30) days prior written notice of cancellation or nonrenewal of any required coverage that is not replaced. Such notice shall be sent directly to: Ada County Highway District, 3775 Adams Street, Garden City, Idaho 83714, Attn: Right of Way Division. B. ACHD as Additional Insured. The required policies shall, excluding workers compensation and employer's liability include ACHD, its officers, officials and employees as additional insureds as their interest may appear under this Agreement with respect to liability caused, in whole or in part, by the acts or omissions of Licensee or it contractors or consultants for ongoing and completed operations. To the extend commercially available, the additional insured coverage shall be no less than that provided by Insurance Services Office, Inc. (ISO) forms CG 20 10, and CG 20 37. 32