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FIBER OPTIC LEASE AGREEMENT BETWEEN CITY OF MOSCOW, IDAHO AND Idaho Regional Optical Network Inc THIS J IBER OPTIC LEASE AGREEMENT (hereinaft~r "AGREEMENT"), effective the . 0<1 day of J ~ , 2013, between City of Moscow, Idaho, a mumc1pal corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "CITY") and Idaho Regional Optical Network Inc, a nonprofit corporation of the State of Idaho(hereinafter "LESSEE"). 1. TERM: The term of this AGREEMENT is for a period of three years commencing upon the effective date of this AGREEMENT and terminating thirty six (36) months from such date under the following terms and conditions. 2. RENEW AL OF LEASE AGREEMENT: This AGREEMENT is renewable at the sole discretion of CITY upon sixty (60) day's prior written notice by LESSEE to CITY of LESSEE's intent to renew. Renewal of this AGREEMENT shall not preclude renegotiation of the annual monetary compensation amount. The renewal term shall be for one years; which may be renewed year-to-year thereafter pursuant to the same notice of intent to renew. 3. FIBER LEASED AND COMPENSATION: CITY leases to LESSEE and LESSEE leases from CITY one fiber route consisting of one(l) dark fiber optic cable strand(s). The fiber route (hereinafter "Leased Fiber") is from City Hall to University of Idaho Library in the amount of of seven thousand nine (7009) strand feet of the City Network. The total amount of of seven thousand nine (7009) strand feet shall be and is hereby leased at the lease rate of $0.048 per strand foot. The total leased strand footage shall be calculated by multiplying the number of strands leased by the total linear length of the cable segment leased. Any equipment rack space necessary to house LESSEE's electronic equipment within a CITY facility shall be leased by the standard rack unit at the rate of thirty two dollars and seventy eight cents ($32. 78) per month per rack unit (1 U) which shall include any electricity utilized by such equipment. The lease rate for fiber and rack space shall be increased annually by three percent of the lease rate of the immediately preceding year. Such lease rate adjustment shall be made and effective upon January 1st of each year throughout the term of this AGREEMENT. Lease payments shall be due and payable by the 10th day of each month of each year during the term of this AGREEMENT. 4. LEASED FIBER SPECIFICATIONS: All fiber shall be single mode fiber optic cable capable of one thousand ( 1,000) mbps data transmission or greater. 5. NO ALTERATIONS OR IMPROVEMENTS BY LESSEE: LESSEE shall not alter or construct or cause to be altered or constructed any attachments or connections to CITY's fiber optic cables, including those fiber strands leased by LESSEE under this {00160737;1} CITY AND IRON FIBER OPTIC LEASE AGREEMENT PAGE I OF 5 ---PAGE BREAK--- AGREEMENT. Provided however, that CITY shall not disrupt or impair service to the LESSEE. CITY shall have the sole right to splice, repair, tap, or otherwise modify CITY's fiber optic cables including those leased to LESSEE pursuant to this AGREEMENT. The LESSEE shall not place any temporary or permanent sign or structure upon the Leased Fiber without first obtaining the written consent of CITY. 6. ACCESS BY CITY: CITY shall have the right to access the Leased Fiber at any reasonable time to examine the same and determine the maintenance and state of repair. When occasional routine maintenance is reasonably required, CITY will make its best effort to notify LESSEE of any planned outages and CITY shall make its best efforts to minimize disruption of utilization of Leased Fiber. 7. FIRE OR OTHER CATASTROPHIC LOSS: If any portion of the Leased Fiber shall be damaged by fire, the elements or other causes, CITY will cause the same to be repaired and restored. If such damage is the result of the negligence of LESSEE or its employees, CITY shall repair and restore the Leased Fiber at LESSEE's expense. If any portion of the Leased Fiber is so damaged as to be unfit for use or occupancy, the rent of LESSEE shall be adjusted accordingly. If any portion of the Leased Fiber is destroyed to the extent of fifty percent (50%) or more of the replacement value of said Leased Fiber, CITY may, at its option, terminate this AGREEMENT rather than restore the Leased Fiber. 8. REPAIR AND MAINTENANCE SERVICES: CITY shall maintain a sufficient level of service and reliability of the Leased Fiber. CITY shall not be responsible to LESSEE for any costs or other damages of any nature, including losses associated with any interruptions of LESSEE's business, resulting from any City Network disruptions, or performance failures of any maintenance and/or service provider. 9. INDEMNIFICATION AND HOLD HARMLESS: LESSEE and CITY each agree to indemnify, defend, and hold harmless the other, and their respective officers, agents and employees, from and against any and all claims, losses, actions, or judgments for damages or injury to persons or property arising out of or in connection with the acts and/or any performances or activities of CITY and LESSEE, their respective agents, employees, or representatives under this AGREEMENT. LESSEE and CITY each specifically agree to indemnify, defend and hold harmless the other and their respective officers, agents and employees from and against any and all claims, losses, actions or judgments for damages or injury to persons or property arising out of or in connection with interruptions of service and/or use of Leased Fiber. 10. TIME OF ESSENCE AND DEFAULT: Time is of the essence of this AGREEMENT. If LESSEE defaults in any of the terms of this AGREEMENT for a period of thirty (30) days after written notice of default has been sent by CITY, then CITY, at its option and in addition to all other legal and equitable remedies, may declare this AGREEMENT forfeited and terminated and may repossess the Leased Fiber. Upon such forfeiture and termination, all rights of LESSEE under this AGREEMENT shall immediately terminate. Provided, {00160737; I} CITY AND IRON FIBER OPTIC LEASE AGREEMENT PAGE20F 5 ---PAGE BREAK--- however, that nothing herein shall be considered an election of remedies or limitation of damages. 11. ASSIGNMENT OR SUBLETTING EXPRESSLY PROHIBITED: LESSEE shall not assign this AGREEMENT nor sublet the whole or any part thereof without the written consent of CITY. 12. USE OF LEASED FIBER: LESSEE shall use the Leased Fiber exclusively for whatever purposes are legal and shall at all times comply with all laws, regulations and ordinances. Operation, maintenance and repair of electronics to light fiber shall be the sole responsibility of LESSEE. 13. TERMINATION: This AGREEMENT may be terminated without cause by either party upon one year's prior written notice to the other party pursuant to Section 13 of this AGREEMENT. 14. OTHER CONDITIONS: A. CITY and LESSEE shall identify an agreed upon location for the installation of the fiber termination enclosure upon LESSEE's property, which location shall serve as the demarcation point. The maintenance, repair and operations for all terminations, cables, and electronics attached to the LESSEE's side of such demarcation point shall be the sole responsibility of LESSEE. B. In the event that LESSEE reports a malfunction of the Leased Fiber to CITY which results in the dispatch of CITY's maintenance and repair provider and it is determined that the cause of such disruption of service was not related to the Leased Fiber condition and/or operability but instead was related to LESSEE's equipment or facilities on LESSEE's side of the demarcation point, LESSEE shall be responsible for the cost of such dispatch by the maintenance and service provider. C. At CITY's discretion, CITY reserves the right to provide LESSEE equivalent currently-provisioned capacity and service via a dedicated wavelength using the required multiplexing equipment. CITY shall provide all necessary equipment at the demarcation point to allow for LESSEE to utilize such wavelength multiplexing. CITY shall provide all necessary equipment at the demarcation point to allow for LESSEE to utilize such wavelength multiplexing. 15. SERVICE OF NOTICES: Any notice may be served upon CITY by certified mail to City Clerk, City of Moscow, Idaho, P 0 Box 9203, Moscow, Idaho, 83843, and any notice may be served upon LESSEE by certified mail to LESSEE at President and CEO, Idaho Regional Optical Network, Inc. 615 North Seventh Street Boise, Idaho 83701. Service of a notice by certified mail shall be deemed complete upon the date of the postmark by certified mail. Either party may change the address for services of notice by written notice to the other party. {00160737;1} CITY AND IRON FIBER OPTIC LEASE AGREEMENT PAGE 3 OF 5 ---PAGE BREAK--- 16. COMPENSATION. Compensation under this AGREEMENT shall consist of payment as set out in Section 3 of this AGREEMENT; however, at CITY's sole discretion, compensation for all or part of the services contemplated by this AGREEMENT may consist of Internet access and other related in-kind services provided by LESSEE to CITY in a value of such in-kind services equal to the "market rate" (as computed in Section 16.B of this AGREEMENT) or payment of the "market rate" in place of said Internet and other related in-kind services, as set out in Section 16.B herein below: A. In exchange for the privileges and rights granted to LESSEE by this AGREEMENT, LESSEE shall provide CITY Internet access services and other related in-kind services of at least the same value as the "market rate" computed in Section 16.B. B. Market Rate. The value of Internet access services and other related in kind services provided by LESSEE to CITY shall be based upon the usual cost charged by LESSEE for providing like services to organizations other than CITY. In no case shall LESSEE charge CITY more than the usual cost associated with providing like services to other organizations. C. All Internet access services and other related in kind services provided by LESSEE to CITY shall be provided pursuant to the compensation formula in this Section 16.B. CITY shall pay no additional costs for such Internet access and other related LESSEE services during the term of this AGREEMENT. D. CITY, at its sole discretion, may reject LESSEE's Internet access connection at any time and may, thereafter, require LESSEE to pay the monetary fee established by utilizing the formula at Section 3 for the balance of the term of the AGREEMENT. Should CITY, at its sole discretion, determine to receive cash payments as provided herein, CITY shall give LESSEE not less than sixty (60) days prior notice. DATED this CJ.4 flt day of_J_ t-.l 2013. CITY: City of Moscow, Idaho LESSEE: {00160737;1} CITY AND IRON FIBER OPTIC LEASE AGREEMENT PAGE 4 OF 5 ---PAGE BREAK--- ACKNOWLEDGMENT STATE OF IDAHO ) ) SS. COUNTY OF LATAH ) On this 2 tf day of .JI.Ah{ , Zol3 , before me, a Notary Public in and for said State, appeared known to me to be the person named above and acknowledged that he/she executed the foregoing document as the duly authorized representative for {00160737; I} CITY AND IRON Notary Public for the State of Idaho Residing at AJ tl.ift'tf" I tl~ My commission expires ¥ f Zott..J. FIBER OPTIC LEASE AGREEMENT PAGES OF 5