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FIBER OPTIC LEASE AGREEMENT BETWEEN CITY OF MOSCOW, IDAHO AND NEZ PERCE TRIBE THIS FIBER OPTIC LEASE AGREEMENT (hereinafter "AGREEMENT") between City of Moscow, Idaho, a municipal corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "CITY") and NEZ PE;RCE TRIBE 120 Bever Grade Rd, Lapwai, ID 83540 (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 one year'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. 3. FIBER LEASED AND COMPENSATION: CITY leases to LESSEE and LESSEE leases from CITY one fiber route consisting of one dark fiber optic cable strand(s). The fiber route (hereinafter "Leased Fiber") is from City Hall to Eggan youth Center in the amount of six thousand two hundred sixty six (6,266) strand feet of the City Network. The total amount of six thousand two hundred sixty six (6,266) 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 seventy eight cents dollars ($32.78) per month per rack unit (IU) which shall iriclude 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 ofthis 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 Įe altered or constructed ·any attachments or connections to CITY's fiber optic cables, including those fiber strands leased by LESSEE under this AGREEMENT. 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 FIBER OPTIC LEASE AGREEMENT CITY AND NEZ PERCE TRIBE PAGElOF5 2-0\4-0l ---PAGE BREAK--- 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, ClTY shall repair and restore the Leased Fiber at LESSEE s expense. If any portion of the Leased Fiber is so damaged as to be m1fit 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 n:store 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 T ,ES SEE 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: LhSįEE agrees to indemnify, defend, and hold harmless CITY, 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 perfonnances or activities of LESSEE, LESSEE's agents, employees, or representatives under this AGREEMENT. LESSEE specifically agrees to indemnify, defend and hold harmless CITY 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 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 peri0d of ten (10) days after written notice of default has been sent by CITY, then CITY, at its option and in addition to all other 1egal and equitable remedies, may declare this AGREEMENT forfeited and terminated and may repossess the Leased Fiber. Upon such forfeiture and tennination, all rights of LESSEE under this AGREEMENT shall immediately terminate Provided, however, that nothing herein shall be considered an election of remedies or limitation of damages. FIBER OPTIC LEASE AGREEMENT CITY AND NEZ PERCE TRIBE PAGE2 OF 5 ---PAGE BREAK--- 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 c, 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 capacity and service via a dedicated wavelength using course wavelength multiplexing. CITY shall provide all necessary equipment at the demarcation point to allow for LESSEE to utilize such wavelength multiplexing. D. Law and Venue. It is agreed that this Agreement shall be construed under and governed by the laws of the State ofldaho. In the event oflitigation concerning it, 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. Nothing in this Agreement shall be construed as a waiver or diminishment of the Nez Perce Tribe's inherent sovereign immunity. 15. SERVICE OF NOTICES: Any notice may be ser\red 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 Nez Perce Tribe Technology Services P 0 Box 365 Lapwai,ID 83540. SerV'ice 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. FIBER OPTIC LEASE AGREEMENT CITY AND NEZ PERCE TRIBE PAGE3 OF5 ---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 hereinbelow: A In exchange fi r the privileges and rights granted to T ,RS SEE by this AGREEMENT, LESSEE shaH pro ide CITY Internet access services and other related in-kind services of at least ilie same value as the '"market rate'' computed in Section 16.R B. Market Rate. The value of Internet access services and other related in kind services provided b l EE to GTY snaU be based upon the usual cost chauged by LE EE foli pr vidirn: !eke e:r ices to organizatioM: other than CffY. 1n n case s.haiU US. F.F. chalige m'·re than rhe u uaJ cost asso iared with providing lVke eli ices to other orga:111izati'l?f7d1;.":;l?AMAGE $ HIRED AUTOS AUTOS - - $ UMBRELLA LIAB H OCCUR EACH OCCURRENCE $ - EXCESS LIAB CLAIMS-MADE AGGREGATE $ OED I I RETENTION$ $ B WORKERS COMPENSATION l l IOJ· AND EMPLOYERS" LIABILITY Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE D E.L. EACH ACCIDENT $ 3 000 000 OFFICER/MEMBER EXCLUDED? N/A 10/1/2013 10/1/2014 (Mandatory in NH) IAGC4049596 E.L. DISEASE - EA EMPLOYEI $ 3 000 000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ 3 000 000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space Is required) Workers Compensation: Self-Insured Retention Per Occurrence $350,000 RE: Moscow City Hall - Broadband Wireless Equipment CERTIFICATE HOLDER CANCELLATION (208)883-7018 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Moscow Moscow City Hall PO Box 9203 Moscow, ID I ACORD 25 (2010/05) INS025 l?nrnnol n1 83843 THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE - Ň Kim Beagley/KIMB / - \ c:::7 © 1988-2010 ACORD CORPORATION. All rights reserved. Tho 4r.:n_n n!:lmo. !:lnrl lnnn !:lro ronic:t.c.ro.rl nf .Ar.:nRn ---PAGE BREAK--- Additional Named Insureds Other Named Insureds Nez Perce Tribe Fish Hatchery Additional Named Insured OFAPPINF (02/2007) COPYRIGHT 2007, AMS SERVICES INC