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Master License Agmt w/ ACHD for Sidewalk Facilities in the City CoreMASTER LICENSE AGREEMENT FOR REGULATION AND MAINTENANCE OF SIDEWALK FACILITIES IN THE MERIDIAN CITY CORE THIS MASTER LICENSE AGREEMENT FOR REGULATION AND MAINTENANCE OF SIDEWALK FACILITIES IN THE MERIDIAN CITY CORE ("Agreement") is entered into this day of August, 2012 (the "Effective Date"}, by and between ADA COUNTY HIGHWAY DISTRICT, a body politic and corporate of the State of Idaho ("ACHD") and the CITY OF MERIDIAN, an Idaho municipal corporation ("City"). RECITALS A. ACRD is a single county-wide highway district organized and existing under the laws of the State of Idaho, with the jurisdiction over public rights-of way, including sidewalks, -in Ada County. B. City is a municipal corporation with police power to regulate and control encroachments and activities upon sidewalks within the city. C. ACHD and Valley Regional Transit ("VRT") entered into a Cooperative Governmental Agreement, dated July 1, 2007 granting a limited license to construct, install, maintain, repair and control transit structures, benches, signage and other related structures and improvements in the public right-of way ("VRT Agreement"). D. Idaho Code § 67-2332 provides that public agencies may contract with one another to perform any governmental service, activity, or undertaking that each public agency entering into the contract is authorized by law to perform. E. The parties desire by this Agreement that ACRD will grant to City a limited license to regulate and control the size, placement, operation, and maintenance of movable and non-movable structures and objects upon ACRD sidewalks for the purpose of ensuring the safety of patrons and visitors to downtown Meridian and to improve upon the aesthetics therein, and to set forth the purposes, powers, rights, objectives and responsibilities ofeach party. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, which are made a part of this Agreement and not mere recitals, and for good and valuable consideration, the receipt of which is hereby acknowledged, it is mutually agreed as follows: 1. License Grant. ACRD hereby grants a license to City ("License") to (i) regulate and control the size, placement, operation, and maintenance of all newsstands, ATM's, signs, planters, benches, fountains, fences, streetlights, sidewalk cafes, outdoor eateries, and similar commercial and public structures, objects, and uses, regardless of whether the same are or are not LICENSE AGREEMENT -1 affixed to the ground (collectively, the "Facilities"} on the sidewalks within the public rights-of way depicted on Exhibit A (collectively, the "Meridian City Core"), (ii) provide for and maintain the necessary and/or desired landscaping and streetscaping upon sidewalks within the public rights-of way for the Meridian City Core, and (iii) sublicense the rights and obligations set forth in (i) and (ii). City shall have no right, title, or interest in or to the public rights-of way other than the right to use the same pursuant to the terms and conditions of this Agreement and pursuant to the authority granted in Idaho Code. This Agreement does not extend to City the right to use the public rights-of way to the exclusion of ACRD for any use within its jurisdiction, authority and discretion or of others to the extent authorized by law to use the public right-of way. If the public right-of way has been opened as a public Highway (as used in the Agreement, the term "Highway" is as defined in Idaho Code § 40-109(5)), City's authorized use is subject to the rights of the public to use the right-of way for Highway purposes. City's authorized use is also subject to the rights of holders of easements of record or obvious physical limitations upon inspection of the public right-of way, and to the statutory rights of utilities to use the public right-of way. This Agreement is subject to and shall not supersede or conflict with license or rights granted under the VRT Agreement, attached hereto as Exhibit B. This Agreement is not intended to, and shall not preclude or impede (i) the ability of ACHD to enter into other similar agreements in the future allowing third parties to also use the public right-of way, provided that written notice is provided to the City, and such use does not unreasonably interfere with City's rights regarding the Facilities as set forth in this Agreement and contained in Idaho Code, or (ii) the ability of ACRD to redesign, reconstruct, relocate, maintain and improve the public right-of way and Highways as authorized by and in accordance with state law. Where ACHD's retained rights, as stated herein, affect the City's authorized placement or sublicensing of Facilities upon the sidewalks, ACRD and City will work in good faith to resolve any conflicts. a. With reference to any Facilities located in the Meridian City Core, ACHD will use best efforts to terminate all ACRD License Agreements for any existing Facilities in the Meridian City Core. During the term of this Agreement, ACRD shall not authorize, permit or license any Facilities to be located in the publicright-of way in the Meridian City Core. b. ACRD and City agree to freely and promptly exchange information reasonably necessary to comply with the terms of this Agreement, including the provision to City, by ACRD of all records, documents, databases, or information relating to known and authorized Facilities licenses in the Meridian City Core, whether terminated or not. 2. Compliance with Laws; No Waste or Nuisance. City, in the performance of its rights and responsibilities under this Agreement, shall (i) comply with, and shall take reasonable action to ensure that any sublicensee comply with, all applicable federal, state and local laws, ordinances, rules and regulations, including the Ada County Highway District policies and ordinances ("ACHD") and the Americans with Disabilities Act LICENSE AGREEMENT - 2 ("ADA") (collectively, "Laws") and (ii) commit no waste or allow any nuisance on the public rights-of way in the Meridian City Core. 3. Maintenance and Repair. City shall be responsible for and shall regulate and control the size, placement, removal, operation, maintenance, and repair of all Facilities which it or ACRD authorizes, licenses, or sublicenses to be placed in the Meridian City Core, except to the extent any repairs are necessitated by damage caused by ACRD, its agents, contractors or employees, which repairs shall be the responsibility of ACRD. City agrees to keep or require the operation, maintenance, and repair of the Facilities in good repair and in compliance with all Laws. If, in ACHD's reasonable discretion, City fails to comply with its obligation herein such that a Facility poses a danger to the public or a Law is not being complied with, the same may be removed or repaired by ACHD at any time, without notice to the City and without liability for any damage to the Facility when so removed or repaired. Removal or repair of Facilities not posing a safety hazard shall require reasonable notice to the City prior to action to repair or remove on behalf of ACRD. City shall reimburse ACRD for reasonable costs associated with the removal or repair of such Facilities when such removal or repair is necessary for safety reasons or to comply with any Law. Without limiting the City's obligation to comply with the foregoing and to reimburse certain City costs associated with the removal or repair of such Facilities, nothing contained herein shall be construed to substitute City in the place of ACHD or property owners for the construction, replacement, or reconstruction of sidewalks as may be provided for by local ordinance, law or by ACHD policy, rule, or regulation. The intent of this Agreement is to provide a master license to the City to authorize it to regulate and control the size, placement, removal, operation, and maintenance of all Facilities noted herein upon the publicrights-of way located in the Meridian City Core. 4. Indemnification. City will defend, indemnify and hold harmless ACHD and, as applicable, ACHD's directors, commissioners, managers, employees, contractors, agents, and representatives (collectively, "Related Parties") from and against any and all claims or actions for loss, injury, death, costs, damages, mechanics and other liens, liabilities, losses, costs or damages (collectively, "Losses"), including attorneys' fees, incurred by ACHD or its Related Parties resulting from (i) the failure or neglect of City, its agents, contractors, employees and sublicensees (a "City Party") to properly maintain andlor regulate the Facilities, (ii) damage to any sidewalk within any right-of way in the Downtown Area caused by any party other than ACHD or its Related Parties, and (iii) a City Party or any Facilities user's non-compliance with any Laws. 5. Liability Insurance. City shall require any of its sublicensees, to carry general liability insurance in a sum equal to the statutory limit set forth in Idaho Code ~ 6-926 ($500,000 as of the Effective Date) as may be adjusted by the Idaho legislature from time to time. City agrees to provide notice to ACHD of such coverage(s), with ACHD as an additional insured, on an annual basis. LICENSE AGREEMENT - 3 6. Future Changes. If, in the future, City desires to alter the physical layout of, construct improvements upon, or allow by license or sublicense, the addition of Facilities to the sidewalks within the rights-of way which constitute the Meridian City Core ("Future Changes"), all such Future Changes shall comply with Laws. If ACRD determines that a Highway on and/or adjacent to the public right-of way in the Meridian City Core requires widening, realignment, redesign, improvement and/or reconstruction as would necessitate the relocation, modification or other adaptation of any Facilities, the City, or its licensee or sublicense, at its sole cost and expense, shall be responsible for relocating, modifying or otherwise adapting the affected Facilities to such widening, realignment, relocation and/or reconstruction as required by ACRD and in compliance with Laws. ACHD shall give City at least ninety (90) days prior written notice of the need for any such relocation, modification or adaptation. In response to such notice, City may also elect to remove an affected Facility in lieu of any such relocation, modification or adaptation. 7. Facilities Revenue. Throughout the term of this Agreement, City shall not be obligated to pay ACHD a fee for the authorization to use the public right-of way. All revenue from the Facilities as a result of City's regulation and control of the Facilities, and the licensing and sublicensing thereof, within the Meridian City Core shall belong to City subject to the conditions that: (1) all such revenue be expended for administration, and improvements and maintenance costs within the public right-of way; and (2) the City provide an Annual Report to ACHD detailing all revenue generated and expended in the public right-of way within the Meridian City Core. 8. Term of Agreement. The initial term of this Agreement commences on the Effective Date and shall continue in effect for a period of five years (the "Initial Term"). The Initial Term automatically will be extended for successive one-year periods (each a "Renewal Term") unless either party notifies the other at least 30 days before the expiration of the Initial Term or any Renewal Term, as the case maybe, that it does not wish to extend the Agreement. The Initial Term and any Renewal Terms are collectively referred to as the "Term." Notwithstanding the foregoing, this Agreement may be terminated by either party upon 30 days written notice. 9. Waiver and Estoppel. City acknowledges and agrees that the authorized use granted herein is temporary, non-transferable (subject to Section 13.3), and merely a permissive use of the public right-of way pursuant to this Agreement. City further acknowledges and agrees that it specifically assumes the risk that the access right that is granted pursuant to this Agreement may be terminated as provided herein before City has realized the economic benefit of the cost of installing, constructing, repairing, maintaining, or authorizing any use of the Facilities, and City hereby waives and is estoppel from asserting any claim that this Agreement is in any way irrevocable because City has expended funds on the Facilities and this Agreement has not been in effect for a period sufficient for City to realize the economic benefit from such expenditures. Any and all costs and expenses associated with City's use of the public right-of way, or the repair and maintenance of the Facilities, shall be at the sole cost and expense of City except as otherwise provided herein. LICENSE AGREEMENT - 4 10. Default. Neither party shall be deemed to be in default of this Agreement except upon the expiration of thirty (30) days from receipt of written notice from the other party specifying the particulars in which such party has failed to perform its obligations (or breached any of its representations or warranties) under this Agreement unless such party, prior to expiration of said thirty (30) day period has rectified the particulars specified in said notice of default; provided, however, that if the nature of the alleged default is such that it cannot reasonably be cured within such thirty (30) days period, the commencement of the cure within such time period and the diligent prosecution to completion of the cure shall be deemed a cure within such period. 11. Force Majeure. Performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lockouts, walkouts, riots, flood, earthquakes, fire or other casualty, the elements or acts of God, or other causes, other than financial, beyond a party's reasonable control. 12. Special Provisions. 12.1 Third Party Construction. If, as a result of any construction, improvement, repair or maintenance by or caused by a third party (such as, by way of example and not limitation, third party new construction or third party relocation of sewer or utility lines}, it is determined by ACRD that relocation, modification or other adaptation of any of the Facilities will be required, ACHD shall require that the third party, at such third party's sole cost and expense, be responsible for such relocation, modification or other adaptation, as ACHD deems to be appropriate under the circumstances. 12.2 Good Faith and Cooperation. It is agreed by ACHD and City that it is in their mutual best interest and the interest of the public that the Facilities be located within the public right-of way as herein contemplated, and, to that end, the parties shall in all instances cooperate and act in good faith in compliance with the terms, covenants and conditions of this Agreement and each shall deal fairly with the other. 13. Miscellaneous 13.1 Authori~. The parties hereby warrant that the person executing this Agreement on behalf of each party is, at the time of its execution, duly authorized to do so by its governing body, and is fully vested with the authority to bind that party in all respects. 13.2 Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable, the remainder shall be construed to conform to the intent of the parties, and shall survive the severed provisions. 13.3 Assignment. Either party shall be entitled to assign this Agreement to an entity which is either statutorily authorized to be its successor or is an entity controlled by the assigning party, provided that such assignee assumes all the obligations, warranties, LICENSE AGREEMENT - 5 covenants and agreements of the assigning party herein contained. Otherwise, neither party shall be entitled to sell, assign or otherwise transfer this Agreement or any of its rights hereunder without the prior written consent of the other party, which consent will not be granted unless such, assignee or transferee assumes all the obligations, warranties, covenants and agreements of the assigning party herein contained. 13.4 Representation and Warranty. City warrants and represents that its codes and ordinances do not .conflict with the terms of this Agreement. 13.5 Further Assurances. Each Party shall cooperate fully with the others and execute such further instruments, documents and agreements and give such further written assurances, as maybe reasonably requested by the others to better evidence and reflect the transactions described herein and contemplated hereby, and to carry into effect the intents and purposes of this Agreement. 13.6 Captions and Headings. The captions and headings in this Agreement are solely for reference purposes, and shall not affect the interpretation of any provision of this Agreement. 13.7 Third Parties. This Agreement is not intended to create, nor shall it in any way be interpreted or construed to create, any third party beneficiary rights in any person not a party hereto. 13.8 Successors and Assigns. The terms and conditions hereof shall be binding upon and inure to the benefit of the respective parties, their administrators, executors, successors and assigns. 13.9 AttorneX Fees. Should either party find it necessary to employ an attorney for representation in any action seeking enforcement of any of the provisions of this Agreement, to recover damages for the breach of this Agreement, to resolve any disagreement in interpretation of this Agreement, or to obtain assistance in any litigation, the unsuccessful party in any final judgment or award entered therein shall reimburse the prevailing party for all reasonable costs, charges and expenses, including attorneys' fees expended or incurred by the prevailing party in connection therewith and in connection with any appeal, and the same may be included in such judgment or award. 13.10 Choice of Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Idaho. 13.11 Exhibits. All exhibits to this Agreement are incorporated by reference and made a part of this Agreement as if the exhibits were set forth in their entirety in this Agreement. 13.12 Entire A Bement. This Agreement and the exhibits hereto constitute the full and entire understanding and agreement between the parties with regard to the transaction contemplated herein, and no party shall be liable or bound to any other in any LICENSE AGREEMENT - 6 manner by any representations, warranties, covenants and agreements except as specifically set forth herein. 13.13 Acknowledgments and Modifications. No acknowledgments required hereunder, and no modification or waiver of any provision of this Agreement or consent to departure therefrom, shall be effective unless in writing and signed by the parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. CITY OF MERIDIAN /lJ~nw i Tammy`~~Veerd Mayor / ATTEST: ~~p,'~EDAUCG' GO~~ sal ~~ 9°~ City of ` E ID~AN~,- Jayce Holman ~ IDAHp w City Clerk ~'~ SEAL y~ ~~~, e~ ~ ~~lrh~ rR~A~u~e ACHD ADA CO Y HIGHWA DISTRICT ecca W. Arnold President FX~-TTR~TC Exhibit A Map of Meridian City Core Boundaries Exhibit B VRT Agreement LICENSE AGREEMENT - 7 EXHIBIT A ExhlbftA (Map of Greater Meridian City Core Boundaries) EXHIBIT B (VRT Agreement) ~Oo p~ ~oaPERATiVE GoVERNMENTA~ AGREEMENT BETWEEN vAI.~.EY REt3ioNa~. TRANSIT AND ADA COUNTY HIGHWAY DISTRICT ~oR TRANSIT 3TRUCTURE$ THIS C40PERATII/E GOVERNMENTAL AGREEMENT {"AyreernenC) is entered into this 1`~ day of July, 2007 by and between VALLEY REGIONAL TRANSIT, the regional public transportation authority ("VRT") and ADA COUNTY HIGHWAY DISTRICT, a public body, corporate and politic {"ACRD"). RECiTAt~S A. VRT is the regional public transportation authority created to serve Ada and Canyon Counties, pursuant to Chapter 21, Tale 40, Idaho Cade, aril as a result of the November 3, 1998 public referendum. VRT provides publicly funded ~ publ~ly subs~~ed public transportation services and programs in Ada and Canyon Counties. B. AChlD is the single countywide highway district in and for Ada County, Idaho created pursuant to Idaho Code, Chapter 14, Title 44, and has exclusive jurisdiction over the public right-of-way, C. ACWD is dedicated to reducing traff~ cstion and improving air quality by providing alternative public transportation and entering into cpoperative agreements with VRT. D. Idaho Code ~ 4Q-2~48~7~ provides that VRT may enter into c~aperative agreements with the state, other authorities, counties, 'cities and h~hway distr~ts under the provisions of Idaho Code ~ ~)-2328, which expressly authorizes public agenc~s to enter into agreements with one another for kxx~perative action far purposes vnthin the power, privilege, or authority of sad agencies. E. VRT desires by this Agreement that ACRD grant to VRT the limited right to construct, install, maintain, repair and control transit shelters, benches, signage and other related struc#ures and improvements collectively, the "Transit Structur+aa"y in the public right-of-way for the purpose of enhancing VRT's public transportation services and programs, pursuant to the terms and conditions as set forth bebw. AGREEMENT NQVII, THEREFQRE, in cons~eration of foregoing recta part of this Agreement and not mere rec~als, and for other cons~eration, the receipt and s~ncy of which are hereby mutually agreed as follows: 1, Acc~$ to Pubilc Right-of-way. .j. , which are made a goad and valuable acknowledged, it is Exhibit B ,~ t ,.~ ACRD hereby (i) agrees that VRT may construct, install, maintain, repair and control atl Transit Structures located or to be located from time to time, at the various stops on VRTs establ and operating public transit routes. in such bcabions within the public right-of way as prior approved by ACRD in wrifing in accordance wwFthh this Agreemeirt, and (ii) grants to VRT, it agents, contractors and employees, the right to access and enter such public right-of-way for ail purposes reasonably refaced thereto. Such Trensn Structures must have a reasonable and operational neuus to the public transit system. This Apreemerrt does not extend to VRT the right to use the public ri~ht- of-way to the exclusion of ACRD for any use within its jurisdic~on, authority and discretion or of others to die extent authorized by law to use the public right-of-way. If the public right-of-way has been opened as a public Highway {as used in 'the Agreement, the term 'Highway' is as defined in Idaho Code § 40-109(50, VRT's authori2ed use is subject to the rights of the public to use the right-of-way for Highway purposes. VRTs authorized use is also subject to the rights of holders of easements of record a obvious physical limitations upon inspection of the public right-ofa~vay, and to the statutory rights of ~di~es to use the public right-of-way. This ~greemerrt it is not intended to, and shall not preclude or impede (i) the ability of ACHE to eater into other similar agreements in the future albwir~g third parses to also use the public right-off way, provided that such use does nat unreasonably interfere with VRTs rights regarding the Transit Structures as set forth in this Agreement, or (if) the ability of ACRD to redesign, reconstruct, re{ocate~ maintain and improve the pubec right-ofaway and Highways as authorized by law. ACRD agrees during the term of this AOr+eement not to allow any bus benches within the public right-of-way without the prior consent of VRT; provided, hopwever~ that w~hh respect ~o those certain bus benches owned by thi~+d parties that are located within die pub!'~c right-of way and are subject to ACHO License ~reemen~a (the "Lieensod Bus B~nah~s'~. notwithstanding anytf~ing to the contrary elsewhere in this Agreement, the folbwing provisions shat{ apply: (a) W~h re~ferer~ce to any Licensed Bus Benches boated within Boise City, ACRD will terminate al( ACRD License Agreements for such beeches based upon Boise Cites ordinance that will cause ~ ACHD Lice~ae Agreements to be imratid. (b) For any L'~censed Bus Benches located outside of Boise City (or other undeiiying jurisdiction without an or+dinanoe that would cause the ACRD License Agreements for such benches to be i~valid)~ the ACHD License Apreement~ for such benches wilt remain in full force and effect unless ACRD, in its sole discretion, determines to terminate such ACRD license Agreemerrts. Shocild ACRD detiermine to temtinate any such ACRD License Agreements ~ any such benches folbwing notices of such termination from ACRD and tF~ failure of the third party to remove the bench, VRT may r+emov~e the benches if determined appropriate by VRT. E~hher party may, but shag have no obligation to, romove any such benches. If VRT determines to d~cort~nue use of any structures in the p~f~ ri~tt-of-way for its system, VRT agrees #o d~continue ark r+emave such structures from the ~!~ . p right-ofway within nrnety {90~ days of such deterrninati~ of non-use. VRTs right of access to the public right-of~ray ~ limi#ed to fires ~Hr~d by VRT and used for its bus transit system. -2- 2. Ma~n~nanco and Rvpalr. VRT shall be responsible for aA maintenance and repak of all Transit Structures placed by VRT in the public right-of way, except to the extent any repairs are necessitated by damage caused by ACRD, its agents contractors or empbyees, which repairs shah be the responaibilit~r of ACRD. The instsllation oc construdiort of Transit Structures by VRT shag be accomplished in aooordsnce with designs, plans and specifications approved in advance and in writing by ACRD as required to sat~iy applicable laws. ACRD policies and good engineering practices. in approving soh plans and speaf'~cations, ACRD assumes no responsibility for any deficiencies or inadequacies in the design or construction of the Transit Structures, and the responsib~ity and IiabiNty therefor shall be and r~n~in in VRT. Subject to the foregang. VRT agrees to keep all such Transit Structures in good repair. As determined by the oufiside consulta~ retained by the parties pursuant to this Agreement, VRT shall make all ADA required pedestrian aa~ess improvements as are directly attributable to the Transit Strudunes, including, without limitation, construction of pedesfian ramps and/or truncafied domes. ACHD shall be responsible for all other ADA compliance requirements that arse rat directly attribu~ble to the Transit Structures. 3. Fem. Throughout the term of this Agroement, VRT shall not be obligatcd to pay ACRD a fee for the authorizefion to use the public right-o~way. but shall reimburse ACRD for aN authorized out-of-pocket or consut~ng expenses incurred as a resu~ of this Agreement. 4. No Title. VRT shall have no right, tide, or interest in or to the public right- of-wag other than the right to use the same pursuant to the terms and conditions of this Agreement. 5. Consultant Safety and Foasibility Study. It is expressly agreed that the grant of rights in Section 1 shat! be st~jed to the completwn and review of an initial study by an outside engineering consultant mutuaNy acceptable to both ACRD and VRT (the 'Initial Consult~nt'~ to determine whether it is safe, legal. and otherwise feas~le ("Safety Rsvi~ to install the Transit Structures at the bcations in the public right-of- wey as proposed by VRT. VRT shall pay the Initial Consultant's costs Assoc with this a~itial study (except for the amount of $4, 1.14, which shag be pa+d by ACRD in reimbursement to VRT for services paid by VRT to ACRD for bus shop data vol(ecpon in fiscal year 2005). ACRD and VRT shall agree upon the scope of services to be provided by the Initi~at Consultant. The oorrtract with the initial Consultant shall be a three-party contract between the Initial Consultant, ACRD and VRT and shall be entered into pursua~ to such bidding procedures and requirements as are oompaabb with the needs of both ACRD and VRT, and if the contract hss been determined by boRh ACHE and VRT ~o be evonomically feasible (the "Initlal Consuldnt Contract"}. It is acknovvledgad and ag~ecE that since VRT will responsible for aN payments under tl~e Initial Consultant ConVact, and since VRTs major funding source for same will be federal fu~ds~ the bidding proo~dures and requirements for VRT shall include any appNceble federal funding requirements. .3- i'1, _. 6. Futuro Route Chances. Ifs in tl~e future, VRT proposes any chance in or addition to its transit routes that would require a change or xldilan to the location of any Trans+t Structures within the public right-0f-way, such change or addition shah be subject to (i) the written approval of ACRD as set forth in Section 1 and (ii) a subsequent Safety Review by an outside consultant, on a case by case basis, with the cost thereof paid by VRT. Such subsequent Safety Review shall be conducted either by the tnidal Consultant under tt~ Initiak Consultant Contract (prided that the ConsukaM Contract has anticipated the same and has established the cost #hereofl or by an outsic~ consultant mukuaNy acx~eptable to both ACRD and VRT (which may include the Initial Consuit~nt) and chose pursuant to the same terms as set forth in Section S. 7. Advartlsing and Advertlsiny Revenue; Locatlo~ of T-ansi# Structures. 7.1 Advertising. Advertising allowed by VRT to be displayed upon the Transit Structures shall be in compliance wRh all appl'~cable state, county and local Laws and regulations. All revenue generated from the display of advertising on any Transit Structure shah belong fio VRT. 7.2 ~acat~n. VRT shall be entitled to I~;gte its Transi# Stn~cturas ply within the public r~ht-of-way as permitted under the Agreement, and shah remove, at its sod cost and expense, any of its Transit Sth~ctures, if any there be, as may be located elsewhere in the public right-of-way. Subject tc the provisions set Earth in Section ~, to the degree that any Transit Structures owned by other parties are subject to ACRD License Agreement, urn its execution hereof, ACRD shall either terminate or not renew any such ACRD license ~y~resmer~s and shall diroCt such other p~~rdes to immediately rer~ve their Transit Structures. During the teen of this Agreement, ACRD shall not sutharize, permit or license any Transit Structures to be bcated within ~e public right-of-way except for VRT Transit Structures and, as m~e !~ set forth in S~~caon 17.3, shall tx~operate with VRT and governmental authc~ties with jurisdiction regarding enforcement of appl~a~blle regulations concerning unauthorized Transit Structures in the public righht-of-way. In any of the Iot~tions that VRT is permitted to locate its Transit Si~ctunes, VRT may remove, at its sole cost and expense, any Transit Structures placed by there by otter pares. 8. Relocation of lmprovernenfa. ACRD u~l~es an annually updated five- year work plan process v~h respect to the widening, real~nment, redes~n, improvement and/or recanstru~on of Highways. pn a regular basis, ACRD shall adv~e VRT of ~y art ` ' widening, realignment, redesign, improvement and~or reconstruct of H~hways as wou~ be Rely to cause a relocation, n~odi~cation ~ other adaptation of any of VRT's Tran~t Structures, and the parts, to the extent reasonably possible, shelf free to a priority hedule regarding same. The parties in#end that this ena~e ~ pt~ties to cooperate with respect to planning antl coordinat~n as re~~ed fio any such relocation, mod`~ic~ation or ol,her adaptation of any VRT Trans Structure. If ACHD ultimately determines that a H~hway on andlar adjacent #o the public r~l~-of-way requires such wideenirrg, rea~nment, redesign, improvement and/or recanstrucbon as wou~ necessitate the relocation, rr~dif~a#ion or other adaptation of any VRT Transit S1~uotune, VRT, at its sole cost and expense, shalt -4- . ~~ . ~ ., be responsible for relocating, modifying or othen~ise adapting the affected Transit Structure to such widening, realignment, relocation and/or rec'o~struction as required by ACRD, which shall be accomplished by VRT according to designs, plans and specifications prior approved by ACRD in writing. Any such relocation, modification or adaptation shall be subject to the provisions of Section 6, essentiaally the same as if it were a change in location thereunder. ACRD shall give VRT at least ninety (~} days prior wr~ben notice of the reed for any such relocation, modfication or adaptation by VRT. Jn response to sach notice, VRT may also elect to remove an affected Transit Structure in lieu of any such relocation, modification or adaptation. 9. Term of Agrventent, The term of this Agreement shall be for an inrtial term of ten (1 d} years from the date of fuu execution of this Agreement, with autarnatic renewal far successive periods of ten (1 ~} years each; provided, however, that either party, upon at least one htu~dned eighty (180 days prior written notice to the other, she!! be enticed to earlier terminate this Agreernen~ VRT, at any tirYte, shad be en#i~ed, upon written native to ACRD, to remove any Transit Structure Pram the pl~lic right-of-way and vacate such location. Any such individual removal shall not terminate this Agreement. VRT, at any tame, shad ado be ems, upon written notice, to remove all of its Transit S#ructures from tt~ publ~ r~htof-way, and upon such rerr~~l this Agreement shall earlier terminate. This Agreement may also be earlier terminated as atherw~e specificaify provitled herein. Subject to ~ fategoing, upon termnation of this Agreement, neither party shall have further recxwrse hereunder except with respect to liabil~ies incurred prior to such termination, except as set forth in S~~tivn 10. 10. Tormination 4bli~atlons. Unless otherwise agreed in writing between ACRD and VRT, upon termination of this Agreement. VRT will promptlyy remove (if not already removcd} all its Transit Structures and restore the public right-of way to at least a oondi~on comparable to that which existed when the Transit Structures wane instated, normal wear and tear excepted. Should VRT flail to rsmove and restore as aforesaid, such failure shall be grounds for declaration o~ a default pursuant to Section 13. Fdlo~wing expiation of the notice and cure period under Section 13, and the continuing default of VRT wdh respect to such removal and restoration, VRT shah have no further right, tide ~ and ir~rest in and to any remaining Transit Structure, and ACRD shall be entitled to (i) complete the removal and restoration aid VRT shall reimburse ACRD for its reasonable out of pocket e~cpenses actually paid in completing the same, or (ii} a# the option of ACHO, to assume ownersh~ oaf all or any part of the Transit Structures riot removed. If VRT has installed any landscaping or irrigation in connection with its Tre~sit Structures, VRT shall not be required to remove tl~e same upon termination of this Pig t iE a third party is under a corrtinuing obligation to maintain and repair same. If ACRD esrNer terminates this Agreement for any reason other than the default of VRT, ACRD shall pay VRT an amount equal to one-half (1/2) of the amowrts that would be ~saessed by the Federal Transportation Au~orihr {'FTA'~ against VRT for tha early termination of this Agr~aem~t assuming a usetui Iffe of '!0 years for alt Trans Structures. Additia~aUy, ACRD shall repay VRT any sums assessed by FTA for any f ~ • ~ ~ r ~ concrete pads remaining on the public right-of~vay that have not been oanple~bely amortized. If this Agreement is terminated by ACRD became of the defisu~ of VRT, however, ACRD shall not be obligated to pay any amounts under the two immediately preceding sentences. 11. Waiver and Estiopp~l Stabrrt~nt VRT ackn~vledge~ and agrees that the authorized use granted herein is temporary, non transfe~abb (subject to Section 18.7}, and merely a permissive use of the publ'~c right-af way pursuant to this Agreement. VRT further acknowledges and agrees that it specificaly assumes the risk that the access right that is granted pursuant to this Agreement may be terminated as provided herein before VRT has re~ljzecl the econanic benefit of the cost of Iling, cor~tructing. repeiring~ or maintaining the Trensit Stnxtures~ and VRT hereby waives and is estoppel from asserting any daim that this Agreement is in any way irrevocable because VRT has expended funds on the Transit Strictures and this Agreement has not been ~ effect for a period sufficient for VRT to ~eaHze the economic benefit from such expenditures, other than agreed to be paid by ACRD as set forth in Section 10. Any and all costs and expenses associated wwithh VRTs use of tl~e pubpc right-of way, or the repair aid maintenance of the Transit Structures, shah be at the sole cyst and expense of VRT except as otherwise provided herein. 12. Complanc~ With Law; No Wastis or Nuisance. In connection with VRTs use of the public right-of-ways throughout the term of this Agreement VRT covenants and agrees to (i) comply with and observe in all respects any and all applicable federal, state and local statutea~ ordinances. polic~ss. rubs and regulations, and (ii) commit no waste or allow any nuisance on the public-right-of way. 73. Default Neither party shall be deemed to be in defsuR of this Agreement except upon the expira~on of thirty (30) days from receipt of written notice from the other party specifying the particulars in which such party has failed to perform its obligations (or breached any of its representations or warranties) under this A~greeme~nt unless such party, prior to expiration of said dirty (30) day period has rectified the particulars speafied in sell notices of default; provided, ho~w~ever, that if the nature of the alleged defiault is such that it cannot res~sonebly be cured within such thirty (30) days per+od, the commencement of the cure r~vithin such bme period and the diligent prosecution to completion of the cure shag ba learned a cure within such period. 14. Fore Majsure. Performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to wary msumection~ strikes, lockouts, walkouts, riots, flood, esrthquakes, fire or other casusily, the eien~ents or acts of God, or other causes other than fiMSnaa1, beyond a party's reasonable control 15. tnd~rr~n[ficatlon. VRT hereby indemnifbs and holds ACRD hannleas from and against any and aN deuma or actions for loss, injury. death dart~ages, rr~ec~anic:s, and otl~ liens aris~tg out of the failure or ~egle~t of VRT~ ids agents, contractions and empbyess to properly and reasonably make authaized Mme of the public ri8ht-of-way or properly repair or maintain die improvements ~ or that ot~en~e result from the use and oawpation of the public right-of-way or it Transit .~. Structures by VRT, and induding any attorney fees and costs that may be incurred by ACRD in defense ofi such claims or actions indemnified against by VRT i~reunder, except to the extent caused by the willful or grossly negk~nt act or omission of ACRD, its agents, contractors or employees. 16. LiaWiity Insura~cv. VRT agrees to tarty IiabiMty insurance in a sum squat to the statutory limit set forth in Idaho Code § &926 (currently 5500.400) as may be adjusted by the Idaho legislature from time to Mme. VRT agrees to provide notice to ACRD of such coverage, with ACRD as an additional insured, on an annual basis. 17. Special Provisions. 17.1 Tf~rd Party Construction. If, as a result of any cons#rucction, improvement, repair or maintenance by or caused by a third party (such as, by way of example and not limi~tion, third party new construction or third patty redcation of sewer or u#ility lines}, ~ is de#ermined by ACRD that relocation, modi~~tion or other adaptation of any of VRT's Transit Si~ucture will be required, ACRD, to the extent per~m~ted under i#s sta#utory auth~ity, shad require that the third party, at such third par#y's cost and expense, be response for such reloc~tian, m~di#ication or other adapt, as is appropriate under the arcumsta~ces. 17.2 Good Faith and C~aopera#~n. It is agreed by ACHD and VRT that it is in their mutual best interes# and ~e interest of the publ~ that the Transit Structures be lacat~ within the pub~C dght-af~vay as herein contemplated, and, to that end, the parties shall in all instances cxx~perate ark act in good fail in c~ompliar~ce w~hh the terms, covenants and candraans of this Agreement and each shall deal fairly with the other. 17.3 Regu~tion and Enfor~oement. ACRD and VRT acknav~ied~ arxt agree that regulation and enforc~nnent regarding sins, benches, advertising and related issues are matters within the underlying jurisdiction and control of the 'dies ar~llor counties in which the Transit Structures are located. ACRD will cooperate with any other jurisdredorts ~ Ada County enacting sign ordinances. 18. MIlar~rou:. 18.1 Authority. T~ parties hereby warrant that the person executing this Agreem~t on behalf of each party is, at the time of its ex~on, duly autl~orized to do so by its gov~eming body, and is fully vested with the aut~wrdy to bind that party in aN resPects• 18.2 Severability. If any prov~ion of this Agre~nent is ~Id ~val~, ~~gal, ar unenfa~oeable, the remainder aha~l be construed to conform to the intent of the parties, and shall sur~nve the severed provis~ns. 18.3 Entire Agreement. Except as provided othenNise herein, this Agreement arx# any att~a~chm~ents hereto cxm~ the entare Agreement between VRT and ACHD concerning the subject matter hereof. -1- 16.4 Further Assurances. Each Party shall cooperate fuNy with the other and execute such fu~the~ ins#ruments~ documents and agreemer~s and grv~e such further written assurances, ss may be reasonably requested by the other to better evidence and reflect the transacctions described herein and contemplated hereby, and to can't' iMo eTfect the infients and purposes of this Agreement. 18.5 Captions and Headings. The options and headings in this Agreement are solely for r~eferenoe purposes, and shall not affect the interpretation of any provision of this Agreement 18.6 Third Parties. This Agreement is not intended to create, nor ahsN it in any way be ir~erpreted or construed to create, any third party beneficiary rights in any person not a party hereto. 18.7 Assigrunent. Either party shell be ended to assign this Agreement to an entity which is either statutorily authaiied to be its successor or is an entity controlled by the assigning party, provided that such assignee assumes all the obligations, warrants, covenants and agreements o~ 1he assigning party herein contained. Otherwise. neid~e~ party shall be entitled to sell, assign or atherwiae transfer Ups Agr~ment or any of its rights hereunder without the prior written consent of the other party, which consent will not be granted unless such purchaser, assignee or transferee assumes all the obligations, warranties, covenants and agreements of the assigning party herein contained. 7 8.8 Attorney Fees and Cots. in any suit action or appeal there fraan to enforce or interpret this Apreame~t~ the prevaiNng party shall be errtiHed to recover its costs incurred therein, inGuding reasonable attorneys' fees. 18.9 Sucxessors and Assigns. `t'Ite terms and oondit~ns hei-'eof shelf be binding upon and inure to the benefit of the respective parti~es~ their admin~trators, exea~tors, successors and assigns. 18.10 Survival. The terms. covenants aid conditions set forth herein shall survive the termination of this ~reement. 18.11 FTA Rules and Regulations. FTA rules and regulations in effect at the time of the execution of this Agreement shah control the interpretation and implementation of the Agreement thtouphout the term of tl~e ~reement. Any Transit Structuros purchased with FTA funds shell be used only as permitted under said FTA noes and regulations. 18.12 Constitutional Debt Limitation. Nothing in this Agreement shaA be construed to obligate either party to any indebtedness or IiabiNty, in any manner, or for any purpose that would be in violation of the yearly debt dmitetion kr~posed by Article VIII, Section 3 of the Idaho Constittudon. IN WITNESS WHEREOF, the parties hereto have exed~ed this AAr+eement es ~ the date first set forth above. ~g. K VRT: VALLEY REGIONAL TRANSIT ~y. Its: ~ . 36984ZS~7.AOC _~,. ACHa: ADA COUNTY HIGHWAY DISTRICT K