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Fiber Optic License Agmt with ACHD for Split Corridor Phase 2PROPERTY MANAGEMENT NO. 0731-2456-0812 - MERIDIAN - FRANKLIN TO BROADWAY FIBER OPTICS (CITY OF MERIDIAN) ADA COUNTY RECORDER Christopher D. Rich AMOUNT .00 10 BOISE IDAHO 08/16/12 03:26 PM DEPUTY Bonnie Oberbillig III I�II'II'IIT)(I'IIIII)I(II'II I'II RECORDED -REQUEST OF 112082954 Ada County Highway District LICENSE AGREEMENT K&lxAV S LICENSE AGREEMENT(the "A reement" is made and entered into this"Agreement") � day of , 2012, by and between the ADA COUNTY HIGHWAY DISTRICT, a body politic nd corporate of the state of Idaho, ("ACHD") and the City of Meridian, and Idaho Municipal Corporation ("Licensee"). WITNESSETH: For good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties: WITNESSETH: For and in consideration of the terms and conditions hereinafter contained, and the covenants to be kept, it is hereby agreed as follows: 1. NATURE OF LICENSE: Pursuant to the terms, conditions and limitations of this Agreement Licensor hereby grants to Licensee a license to encroach upon a portion of the public right-of-way in Ada County, for the following specific use: To use and maintain a portion of the public Right -of -Way known as N. Meridian Road (from Broadway to Franklin Road) for the installation of one (1) 1.25 inch conduit that may enclose fiber optic cable (the conduits and any associated fiber optic cable and other equipment are collectively hereinafter referred to as "fixtures and improvements") for the Licensee's exclusive use. The fixtures and improvements will be running along the west side of N. Meridian Road, all as depicted in the attached Exhibit "A". The Licensee will install the new line with the ACHD Split Corridor Project and agrees to avoid all utilities. The conduit shall have a minimum depth of cover of three (3) feet. Licensee will be responsible for the location of existing easements and facilities before any construction in the public Right -of - Way. Licensee shall provide ACHD Utility Coordinator plan and profile plans showing placement of the fixtures and improvements in the Right -of -Way and will become a member of Digline, Inc.. Licensee understands and agrees that it may be required to remove and/or relocate the fixtures and improvements if a need for this portion of the public Right -of -Way is required for a public use. Costs associated with the removal and relocation of the fixtures and improvements will be borne by Licensee at no cost to Licensor. This Agreement is not an exclusive right to use the public Right -of -Way; is not intended to preclude access to adjacent and abutting properties; and is subject to any existing easements of record or in use. 2. GRANT OF LICENSE: The property to be included in this Agreement are parcels of real property within the public right-of-way in Ada County, State of Idaho, depicted in Exhibit "A". 3. TERM OF LICENSE: This license will commence on the day first entered above, and will continue until terminated by Licensor or its successors or assigns or by Licensee. Licensor LICENSE AGREEMENT - Page 1 (6/21/12) or Licensee may terminate this license anytime, with or without cause, upon giving the other party THIRTY (30) DAYS written notice of termination of this license. 4. OWNERSHIP: Licensee acknowledges that the real property described in paragraph two, "Grant of License," hereinabove set out is a public Right -of -Way and Licensee waives any claim to ownership of the Right -of -Way whether in fee, adverse possession or any other right, title or interest therein, other than established pursuant to the terms of this Agreement. This Agreement does not extend to Licensee the right to use the Right -of -Way to the exclusion of ACHD for any use within its jurisdiction, authority and discretion or of others to the extent authorized by law to use public Right -of -Way. If the Right -of -Way has been opened as a public Highway (as used in this License 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 Right -of -Way for Highway purposes. Licensee's authorized use is also subject to the rights of holders of easements of record or obvious on inspection of the Right - of -Way and statutory rights of utilities to use the public Right -of -Way. This Agreement it is not intended to, and shall not, preclude or impede the ability of ACRD to enter into other similar agreements in the future allowing third parties to also use its public rights-of-way, or the ability of ACHD to redesign, reconstruct, relocate, maintain and improve its public rights- of-way and Highways as authorized by law and as it determines, in its sole discretion, is appropriate. 5. TAXES AND ASSESSMENTS: Licensee agrees to pay all special assessments and personal property taxes that may be imposed against the fixtures and improvements property during the term of this Agreement. 6. LICENSEE'S FEES: Any ACHD license fees shall be waived in accordance with the ACRD -Meridian Interagency Governmental Agreement for Waiver of Costs and Fees dated June 9, 2010 and incorporated herein by reference. 7. FIXTURES AND IMPROVEMENTS: Pursuant to the terms of this License Agreement, Licensee may build those improvements and/or place those fixtures upon the Right -of -Way as set out in paragraph one, "Nature of License." At its sole cost and expense, Licensee shall maintain the fixtures and improvements in good condition and repair and as required to satisfy applicable laws, the policies of ACHD and sound engineering practices. Licensee shall have access over, across and under the Right -of -Way for the purposes of accomplishing such repair and maintenance. If the Highway on and/or adjacent to the Right -of -Way is damaged as a result of: (i) the performance by Licensee of the maintenance required by this Section 7, or the failure or neglect to perform such maintenance; and/or (ii) Licensee's design, installation or use of the Improvements, regardless of cause; at its sole cost and expense Licensee shall forthwith correct such deficiency and restore the Highway and the surface of the Right -of -Way to the same condition it was in prior thereto, and if Licensee shall fail or neglect to commence such correction and restoration within twenty-four (24) hours of notification thereof, ACHD may proceed to do so, in which event LICENSE AGREEMENT - Page 2 (6/21/12) Licensee agrees to reimburse ACHD for the costs and expenses thereof, including, without limitation, reasonable compensation for the use of staff and equipment of ACRD. Notwithstanding the provisions of the preceding paragraph, should an emergency exist related to the Licensee's use of this license which threatens the stability or function of the Highway on or adjacent to the Right -of -Way or the safety of the public use thereof, ACHD shall have the right to immediately perform, on behalf of, and at the cost of Licensee necessary emergency repairs. It is agreed that upon the termination of this Agreement, Licensee will promptly remove all improvements and/or fixtures placed in the right-of-way by Licensee at no cost or expense to Licensor. Licensee agrees at the termination of this Agreement, to return all premises as nearly as practical to the condition that the premises were in before any use by Licensee. Should Licensee fail to promptly remove any improvements and/or fixtures upon the Right -of -Way at the termination of this license herein, and Licensor wants to have said improvements and/or fixtures removed, Licensor may remove such improvements and/or fixtures and assess Licensee for the costs of their removal. Licensee will also be liable for all costs incurred by Licensor to cause the property to be returned to the same condition it was in before the grant of this license. It is further agreed that should Licensee not remove the improvement's and/or fixtures in the public Right -of -Way at the termination of this Agreement that Licensee hereby disclaims any interest or title to the improvements or fixtures left on the property after the expiration of the term of this Agreement, and all improvements and/or fixtures left on the property after the termination of this Agreement will pass to Licensor at no cost to Licensor. 8. ASSIGNMENT: It is expressly agreed and understood by and between the parties hereto, that Licensee will not have the right to assign, transfer, hypothecate or sell any of its rights under this License Agreement except upon the prior express written consent of Licensor. 9. HOLD HARMLESS AND INDEMNIFICATION: Licensee will, to the extent permitted by law, always, indemnify, defend and hold harmless Licensor, its agents, successors and assigns, against all actions, claims, demands, liabilities, damages, debts, bodily injury and property damage, including all expenses, costs and attorney fees that may in any manner be imposed or incurred by Licensor because of, or arising out of, the actions, direct or indirect, defaults or omissions by Licensee, or any of its officers, agents or servants, arising out of or concerning the above described property and/or license granted herein, or any other liability or damages to which Licensor may be subjected as a result or consequence of granting this license. Licensee's obligations pursuant to this paragraph shall survive the termination of this License Agreement. 10. HAZARDOUS MATERIAL CLAIMS; Licensee will be solely responsible for and will indemnify and hold harmless Licensor, 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 materials on, LICENSE AGREEMENT - Page 3 (6/21/12) under or about the real property described in paragraph two "Grant of License," including without limitation (1) all damages, (2) the costs of any required or necessary repair, cleanup or detoxification of the property and (3) all reasonable costs and expenses incurred by the Licensor in connection therewith, including but not limited to reasonable attorneys' fees. Licensee's obligations pursuant to this paragraph shall survive the termination of this License Agreement. 11. ATTORNEYS FEES: It is agreed by and between the parties hereto, that in the event suit is instituted for the purpose of enforcing any and all of the provisions of this License Agreement, the prevailing party will be entitled to such attorneys' fees as are adjudged reasonable by the Court. 12. HEIRS AND ASSIGNS: The covenants and conditions of this Agreement will extend to and bind the heirs, executors, assigns and successors of the respective parties hereto. 13. NO COST TO ACHD: Any and all costs and expenses associated with Licensee's authorized use of the Right -of -Way, or any construction or installation of Improvements thereon, or the repair and maintenance thereof, or the relocation of improvements or utilities thereon, or the restoration thereof at the termination of this Agreement, shall be at the sole cost and expense of Licensee. 14. NOTICE: Any notice under this Agreement shall be in writing and be delivered in person, or by United States Mails, postage prepaid, or by public or private 24-hour overnight courier service (so long as such service provides written confirmation of delivery), or by facsimile verified by electronic confirmation. All notices shall be addressed to the party at the address set forth below or at such other addresses as the parties may from time to time direct in writing by notice given the other. Any notice shall be deemed to have been given on (a) actual delivery or refusal, (b) three (3) days following the day of deposit in the United States Mails, (c) the day of delivery to the overnight courier, or (d) the day facsimile delivery is electronically confirmed. If to ACHD: Ada County Highway District 3775 Adams Street Garden City, Idaho 83714 Attn: Right of Way Division If to Licensee: City of Meridian 3 G arQxj��, A Vz. R 15. EXHIBITS: All exhibits attached hereto and the recitals contained herein are incorporated herein as if set forth in full herein. 16. WARRANTY OF AUTHORITY TO EXECUTE: The person executing this Agreement on behalf of ACHD represents and warrants due authorization to do so on behalf of ACHD, and LICENSE AGREEMENT - Page 4 (6/21/12) that upon execution of this Agreement on behalf of ACRD, the same is binding upon, and shall inure to the benefit of, ACRD. The person executing the Agreement on behalf of Licensee represents and warrants due authorization to do so on behalf of Licensee, and that upon execution of this Agreement on behalf of Licensee, the same is binding upon, and shall inure to the benefit, of Licensee. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed the day, month and year first set forth above. EXHIBITS Exhibit A — Depiction of Licensee's Conduit in Relation to ACHD's Right -of -Way ADA CO HIGHW, Y STRICT By cca W. Arnold Its: President CITY OF MERIDIAN By: Tam �- eWeerd Its: May r LICENSE AGREEMENT - Page 5 (6/21/12) STATE OF IDAHO ss. County of Ada ) 0 - On this day of , 2012, before me, a Ke a Notary Public in and for the Stat f Idaho, personally appeared, R becca W. Arnold, known or identified to me to be the President of the Ada County Highway District Board of Commissioners, the person who executed this instrument on behalf of said District, and acknowledged to me that the Ada County Highway District executed the same. IN WITNESS WHEREOF, I have hereunt t my hand and affixed my official seal the day and year first abover NoT . Notar Public for Idaho Residing at: z My commission expires: 3 • - .1 .,�. tiC,; STATE OF IDAHO ) ss. County of Ada ) On this 10 day of v1` , 2012, before me, Jaycee Holman, a Notary Public in and for the State of Idaho, personally appeared Tammy DeWeerd, known or identified to me to be the Mayor of the City of Meridian, the person who executed this instrument on behalf of said City, and acknowledged to me that the City of Meridian executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. a VA w Notary Public for Idaho Residing at: l My commission expires:\-rx v% p to The Ada County Highway District (ACHD) is committed to compliance with Title VI of the Civil Rights Act of 1964 and related regulations and directives. ACHD assures that no person shall on the grounds of race, color, national origin, gender, disability or age, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any ACHD service, program or activity. 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