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EQUIPMENT RACK SPACE LEASE AGREEMENT BETWEEN CITY OF MOSCOW, IDAHO AND TIME WARNER CABLE LLC THROUGH ITS NATIONAL DIVISION This Equipment Rack Space Lease Agreement is made on this 7th day of January, 2009, between Time Warner Cable LLC through its National Division, a limited liability company organized in the State of Delaware, with offices located at 828 West Pullman Road, Moscow, Idaho, 83843 (hereinafter "LESSEE") and City of Moscow, Idaho, a municipal corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "CITY"). 1. TERM: The initial term of this Agreement commences upon the effective date of this Agreement, and unless terminated earlier in accordance with this Agreement, or renewed pursuant to Section 2, terminates thirty-six (36) months from such date (the "Initial Term"). 2. RENEWAL OF LEASE AGREEMENT: Upon the expiration of the Initial Term, this Agreement shall automatically renew on an annual basis unless either party notifies the other party in writing at least thirty (30) days prior to the expiration of the then-current Term of such party's intent not to renew. The Initial Term and any renewal term are referred to collectively as the "Term". 3. EQUIPMENT RACK SPACE LEASED AND COMPENSATION: CITY leases to LESSEE and LESSEE leases from CITY five rack units (5U) of equipment rack space, at the location specified on Exhibit A (the "Equipment Rack Space") leased by the standard rack unit at the rate of $30.00 per month per rack unit (1 which shall include all electricity utilized by such equipment. CITY shall provide LESSEE with additional equipment rack space upon LESSEE's request and where CITY has additional space available. Any such additional equipment rack space shall be deemed as "Equipment Rack Space" under this Agreement, added to Exhibit A hereto, and shall be leased for the amount calculated using the current rate per rack unit. Any of LESSEE's equipment placed on the Equipment Rack Space is referred to as the "Lessee Equipment" and shall at all times remain the property of LESSEE, and in no event shall CITY obtain any rights or other interests in the Lessee Equipment. The lease rate 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 1Oth day of each month of each year during the Term of this Agreement. 4. REPRESENTATIONS AND WARRANTIES: CITY represents and warrants that it has the full right and authority to enter into this Agreement and to grant the lease contained herein, CITY has not granted to any other party any leasehold or other rights in or to the portion of Equipment Rack Space leased to LESSEE, and CITY will immediately notify LESSEE in the event it no longer has the right to provide the lease granted herein. LESSEE represents and warrants that it has the full right and authority to enter into this Agreement. City of Moscow Lease Agreement Execution 1.7.09 Page I of6 Z.oo'i ol ---PAGE BREAK--- 5. REPAIR AND MAINTENANCE SERVICES; PROTECTION OF FACILITIES: Operation, maintenance and repair of the Lessee Equipment shall be the sole responsibility of LESSEE. LESSEE shall have the right during regular business hours during the Term to enter the premises on which the Equipment Rack Space is located in order to install, inspect, maintain, repair, remove or replace the Lessee Equipment. LESSEE may be granted the right to enter into the premises after regular business hours upon receipt of permission to do so by CITY and under such conditions as CITY deems appropriate. In case of emergency, LESSEE shall have the right to enter the premises within two hours of such a request. In case of emergency, LESSEE shall reimburse CITY for time expended by CITY employees to secure LESSEE's after hours access to the premises. CITY shall protect, maintain, and keep in good order the Equipment Rack Space, and shall be responsible for any maintenance to the Equipment Rack Space as reasonably requested by LESSEE. CITY shall not create and will not permit, and will discharge, any lien or encumbrance caused or suffered by LESSEE and placed upon the Lessee Equipment due to an action or inaction of CITY, and will otherwise assist LESSEE in removing any lien or encumbrance caused or suffered by LESSEE and placed upon the Lessee Equipment by third parties. Notwithstanding anything to the contrary herein, if LESSEE determines that CITY's actions or failure to fulfill an obligation of this Agreement poses an immediate and serious threat to the Lessee Equipment, LESSEE will give notice thereof to CITY and may remove its equipment according to the terms of this Agreement. 6. INDEMNIFICATION AND HOLD HARMLESS: Each party (the "Indemnifying Party") agrees to indemnify, defend, and hold harmless the other party (the "Indemnified Party"), and its 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 the Indemnifying Party, the Indemnifying Party's agents, employees, or representatives under this Agreement. The Indemnifying Party specifically agrees to indemnify, defend, and hold harmless the Indemnified Party, and its 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 lease of equipment rack space. 7. COSTS AND ATTORNEY FEES: In the event either party incurs legal expenses to enforce the terms and conditions of this Agreement, the prevailing party is entitled to recover reasonable attorneys' fees and other costs and expenses, as determined by a court of competent jurisdiction or through alternate dispute resolution. 8. JURISDICTION AND VENUE: It is agreed that this Agreement shall be construed under and governed by the laws of the State of Idaho. In the event of litigation concerning the Agreement, it is agreed that proper venue shall be the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah. 9. NON-DISCRIMINATION: LESSEE shall not discriminate against any employee or applicant for employment on the basis of race, color, religion, creed, political ideals, sex, age, marital status, physical or mental handicap, or national origin. City of Moscow Lease Agreement Execution 1.7.09 Page 2 of6 ---PAGE BREAK--- 10. TIME OF ESSENCE AND DEFAULT: Time is of the essence of this Agreement. 11. ASSIGNMENT OR SUBLETTING EXPRESSLY PROHIBITED: LESSEE shall not assign this Agreement nor sublet the whole or any part thereof, except to LESSEE's affiliates, without the written consent of CITY, which consent shall not be unreasonably withheld. 12. USE OF LEASED EQUIPMENT RACK SPACE: LESSEE shall use the Equipment Rack Space for whatever purposes are legal. Both parties shall at all times comply with all laws, regulations and ordinances. 13. CONFIDENTIALITY: CITY agrees to maintain in strict confidence the Lessee Equipment and all plans, designs, drawings, trade secrets, customers, business and other proprietary information of LESSEE and its affiliates which is disclosed pursuant to this Agreement (collectively, "Confidential Information"), except as is required to be released pursuant to a court order, administrative proceeding, or applicable State law (specifically, but not exclusively, the Idaho Public Records Law). 14 LIMITATION OF LIABILITY: In no event shall LESSEE be liable to CITY or to any third party for any incidental, indirect, consequential, special or punitive damages arising out of or relating to this Agreement, regardless of whether LESSEE had been advised of the possibility of such damages. The aggregate liability of LESSEE to CITY for any reason and all causes of action arising out of or relating to this Agreement (including, but not limited to, contract, tort (including negligence) and strict product liability) shall be limited to the fees paid by LESSEE under this Agreement in the six months preceding the date the claim arises. In no event shall LESSEE's affiliates, third party service providers or suppliers have any liability to CITY hereunder. 15. TERMINATION: If either party defaults in any of the material terms of this Agreement for a period of ten ( 1 0) days after written notice of default has been sent by the non defaulting party, then the non-defaulting party, at its option and in addition to all other legal and equitable remedies, may declare this Agreement forfeited and terminated. Upon such forfeiture and termination, all rights of either party under this Agreement shall immediately terminate. LESSEE may also terminate this Agreement if it determines that it no longer requires a lease of the Equipment Rack Space. Notwithstanding the foregoing, the provisions of Sections 6, 7, 8, 13, 14, 15, and 17 shall survive the termination or other expiration of this Agreement. 16. SERVICE OF NOTICES: Any notice permitted or required to be given herein shall be served in writing upon CITY by certified mail to City Clerk, City of Moscow, Idaho, P 0 Box 9203, Moscow, Idaho, 83843, and any notice permitted or required to be given herein shall be served in writing upon LESSEE by certified mail to LESSEE at Time Warner Cable LLC, 828 W. Pullman Road, Moscow, Idaho, 83843, with a copy to Time Warner Cable LLC, One Time Warner Center, New York, NY 10019, Attn: General Counsel. 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. City of Moscow Lease Agreement Execution 1.7.09 Page 3 of6 ---PAGE BREAK--- 17. MISCELLANEOUS: LESSEE shall have no liability to CITY hereunder due to circumstances beyond its control that affect LESSEE's ability to perform, including, but not limited to, acts of God, terrorism, flood, acts or omissions of other carriers, natural disaster, regulation or governmental acts, fire, civil disturbance, strike, weather, any unauthorized access to or destruction or modification of the Equipment Rack Space, in whole or in part, or act or failure to act of CITY. This Agreement, including without limitation all exhibits that are attached hereto and incorporated herein by this reference, sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous written or oral agreements or representations between the parties with respect hereto. In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties set forth herein, and the remainder of this Agreement shall remain in full force and effect. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. CITY shall use reasonable efforts to make no press release, public announcement or other public statements regarding this Agreement without LESSEE's prior written consent, which consent will not be unreasonably withheld. All claims under this Agreement must be initiated not later than two years after the claim arose. There are no third party beneficiaries to this Agreement. No modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both parties. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized representative to execute and deliver this Equipment Rack Space Lease, as of the date first written above. City of Moscow, Idaho City of Moscow Lease Agreement Execution 1.7.09 Time Warner Cable LLC through its Natio:asion By: Name: Tom Feige Title: Division President Natwnal Date: Pf!., 12 e>o q Page 4 of6 ---PAGE BREAK--- STATE OF C COUNTY OF \C h 0 ACKNOWLEDGMENT ) ) ss. On this day of , 200_3_, 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 Time Warner Cable LLC through its National Di ot y Public for t Residing at _ My commission expiJMV Expires January 31, 2012 City of Moscow Lease Agreement Execution 1.7.09 Page 5 of6 ---PAGE BREAK--- Exhibit A Location of Equipment Rack Space Rack TCRI rack units 9-13 City ofMoscow Lease Agreement Execution 1.7.09 Page 6 of6