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FIBER OPTIC LEASE AGREEMENT BETWEEN CITY OF MOSCOW, IDAHO AND LATAH COUNTY, IDAHO. THIS FIBER OPTIC LEASE AGREEMENT (hereinafter "AGREEMENT') between CITY OF MOSCOW, IDAHO AND LATAH COUNTY, IDAHO (hereinafter "Agreement") is made this day of D£Len\.AQ.r , 20 I 0, by and between City of Moscow, Idaho, a municipal corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "CITY") and Latah County, Idaho, a govemmental subdivision of the State of Idaho, P 0 Box 8068, Moscow, Idaho, 83843 (hereinafter "COUNTY"). I. TERM: The tenn of this AGREEMENT is for a period of two years commencing upon the effective date of this AGREEMENT and tenninating twenty four (24) months from such date under the following tem1s and conditions. 2. RENEWAL OF LEASE AGREEMENT: This Agreement is renewable at the sole discretion of CITY following ninety (90) days' prior written notice by COUNTY to CITY of COUNTY's intent to renew. Renewal of this Agreement shall not preclude renegotiation of compensation for CITY's services. 3. FIBER LEASED AND COMPENSATION: a. CITY leases to COUNTY and COUNTY leases from CITY two fiber routes consisting of one ( 1) dark fiber optic cable strand per route (hereinafter "Leased Fiber"). The first fiber route is from City Hall to East Side Marketplace comprising a total amount of eight thousand six hundred sixty (8,660) strand feet of the City Network Fiber. The second route is from City Hall to University of Idaho Steam Tunnel on the no1ihwest comer of the intersection of Seventh Street and the alley between Elm and Ash Streets comprising a total amount of four thousand ( 4,000) strand feet of City Network Fiber. The total amount of twelve thousand six hundred sixty ( 12,660) strand feet shall be and is hereby leased at the lease rate of twelve thousand three hundred thirty four dollars and seventy one cents ($12,334.71 ) for the term of this AGREEMENT. b. Any equipment rack space (hereinafter "Rack Space") necessary to house COUNTY's electronic equipment within a CITY facility shall be leased by the standard rack unit at the rate of thirty dollars ($30) 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 tenn 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. FIBER OPTIC LEASE AGREEMENT CITY AND LATAH COUNTY PAGE I 01'4 2.010·1 \ ---PAGE BREAK--- 5. NO ALTERATIONS OR IMPROVEMENTS BY COUNTY: COUNTY 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 COUNTY 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 COUNTY pursuant to this AGREEMENT. The COUNTY 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 COUNTY 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 COUNTY or its employees, CITY shall repair and restore the Leased Fiber at COUNTY's expense. If any portion of the Leased Fiber is so damaged as to be unfit for use or occupancy, the rent of COUNTY 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 COUNTY for any costs or other damages of any nature, including losses associated with any interruptions of COUNTY's business, resulting from any City Network disruptions, or performance failures of any maintenance and/or service provider. 9. INDEMNIFICATION AND HOLD HARMLESS: COUNTY 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 perfmmances or activities of COUNTY, COUNTY's agents, employees, or representatives under this AGREEMENT. COUNTY 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 COUNTY defaults in any of the tem1s of this AGREEMENT for a period of ten (1 0) 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 tenninated and may repossess the Leased Fiber. Upon such forfeiture and termination, FmER OPTIC LEASE AGREEMENT CITY AND LATAH COUNTY PAGE 2 or4 ---PAGE BREAK--- all rights of COUNTY under this AGREEMENT shall immediately terminate. Provided, however, that nothing herein shall be considered an election of remedies or limitation of damages. 11 . ASSIGNMENT OR SUBLETTING EXPRESSLY PROHIBITED: COUNTY shall not assign this AGREEMENT nor sublet the whole or any part thereof without the written consent of CITY. 1 2. USE OF LEASED FIBER: COUNTY 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 COUNTY. 13. TERMINATION: This Agreement may be tenninated without cause by either party upon ninety (90) days' prior written notice to the other party. Upon termination, COUNTY shall pay all compensation due and owing CITY within ninety (90) days of the last date of service provided to COUNTY by CITY. 1 4. OTHER CONDITIONS: A. I. CITY and COUNTY shall identify an agreed-upon location for the installation of the fiber termination enclosure within COUNTY's leased space at the Eastside Market Place, which location shall serve as the demarcation point. The maintenance, repair and operations for all terminations, cables, and electronics attached to the COUNTY's side of such demarcation point shall be the sole responsibility of COUNTY. 2. CITY and COUNTY shall identify an agreed-upon location for installation of a switch on CITY's racks at City Hall to complete COUNTY's connection with equipment at the University of Idaho Steam location. COUNTY shall be solely responsible for installation and maintenance of said switch. B. In the event that COUNTY 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 COUNTY's equipment or facilities on COUNTY's side of the demarcation point, COUNTY 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 COUNTY 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 COUNTY to utilize such wavelength multiplexing. 1 5. SERVICE OF NOTICES: Any notice may be served upon CITY by certified mail to Jesse Flowers, IS Director, City of Moscow, Idaho, P 0 Box 9203, Moscow, Idaho, 83843, and any notice may be served upon COUNTY by certified mail to Laurel Caldwell, IT Director, Latah County, P 0 Box 8068, Moscow, Idaho, 83843. Service of a notice by certified mail FIBER OPTIC LEASE AGREEMENT CITY AND LATAH COUNTY PAGE 3 OF4 ---PAGE BREAK--- shall be deemed complete upon the date of the postmark by ce1tified mail. Either party may change the address for services of notice by written notice to the other party. 1 6. COMPENSATION. a. Compensation for Leased Fiber under this AGREEMENT shall consist of payment as set out in Section 3.a. of this AGREEMENT and will be invoiced to State of Idaho Military Division under the following Grant Authorization Numbers 60580971 and 6058981. b. Compensation for Rack Space under this AGREEMENT shall consist of payment as set out in Section 3.b. of this AGREEMENT and wi11 be invoiced to Latah County. Lease payments shall be due and payable by the 1 Oth day of each month of each year during the tenn of this AGREEMENT. 1 7. This AGREEMENT is contingent upon Latah County receiving the necessary funding to cover its obligations under this AGREEMENT. In the event that such funding is not received or appropriated, then, and in that event, Latah County's obligations under the AGREEMENT shall cease and each pa1ty shall be released fl"om further performance under the AGREEMENT without liability to the other party, unless the parties agree otherwise, and, in such case, CITY shall not be required to reimburse COUNTY or any pmty for monies received from COUNTY or any funding source prior to such non-appropriation. COUNTY agrees to notify CITY of non-appropriation as soon as practicable following COUNTY's awareness that such funding is not likely to be received by COUNTY. DATED this I '3fu day of1)ec.e.n\.hif CITY: City of Moscow, Idaho FIBER OPTIC LEASE AGREEMEN"I Ci1Y AND LATAH COUNTY , 2010. LATAH COUNTY ',f94!i cnbektt:-o-F Susan R. Petersn,Cunty Clerk PAGE40F4