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TELECOMMUNICATION EQUIPMENT RACK SPACE LEASE AGREEMENT BETWEEN CITY OF MOSCOW, IDAHO AND NOEL COMMUNICATIONS, INC. THIS TELECOMMUNI TION EQUIPMENT RACK SPACE LEASE AGREEMENT is made on this day of i 'b;JJe-r, between Noel Communications, Inc., a Company organized in the State of Washington, P 0 Box 2965, Yakima, Washington, 98907 (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 tem1 of this Agreement commences upon the effective date of this Agreement, and unless tenninated earlier in accordance with this Agreement, or renewed pursuant to Section 2, tem1inates thirty-six (36) months from such date (the "Initial Tenn"). 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 ninety (90) days prior to the expiration of the then-current Term of such party's intent not to renew. The Initial Term and any renewal tem1 are referred to collectively as the "Term." 3. TELECOMMUNICATION EQUIPMENT RACK SPACE LEASED AND COMPENSATION: CITY leases to LESSEE and LESSEE leases from CITY Telecommunication Equipment Rack Space for LESSEE's rack. Such Telecommunication Equipment rack shall be twenty four inches (24") wide, thitiy inches (30") deep, and eighty four inches (84") high. The power requirement for LESSEE's equipment is 240vac at 30 amps. LESSEE shall pay CITY no less than five hundred dollars ($500) each month for the tenn of this Agreement. Lease payments shall be due and payable by the I Oth day of each month of each year during the Term of this Agreement. 4. TERM OF THIS AGREEMENT. CITY represents and warrants that it has the full 1ight 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 Telecommunication 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. 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 Telecommunication 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 TELECOMMUNICATION EQUIPMENT RACK SPACE LEASE PAGE I OF 5 ---PAGE BREAK--- 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 Telecommunication Equipment Rack Space, and shall be responsible for any maintenance to the Telecommunication 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. 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: LESSEE agrees to indemnify, defend, and hold hannless 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 performances or activities of LESSEE, LESSEE's agents, employees, or representatives under this Agreement. LESSEE specifically agrees to indemnify, defend, and hold hannless 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 lease of Telecommunication 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 ofldaho, 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. 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. TELECOMMUNICATION EQUIPMENT RACK SPACE LEASE PAGE2 OF 5 ---PAGE BREAK--- 12. 13. 14 15. 16. 17. USE OF LEASED TELECOMMUNICATION EQUIPMENT RACK SPACE: LESSEE shall use the Telecommunication Equipment Rack Space for whatever purposes are legal. Both parties shall at all times comply with all laws, regulations and ordinances. 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). 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. 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 tenninated. Upon such forfeiture and tennination, all rights of either party under this Agreement shall immediately teniiinate. LESSEE may also terminate this Agreement if it determines that it no longer requires a lease of the Telecommunication Equipment Rack Space. Notwithstanding the foregoing, the provisions of Sections 6, 7, 8, 14, 15, and 17 shall survive the tennination or other expiration of this Agreement. SERVIŁE łŃNOTICES: Any. ?.Qtse-tei:n!£ńd Ņr required t? be given herein shall be served m upon CITY ņyŇrt!_ijedhfa,tl t ňtty Clerk, C1ty of Moscow, Idaho, P 0 Box. 9203, Moscow, I.daho,y.4:3anʼnŊiiy ŋŌTōe pŎrmitted . or required to be given herem shall be served m i. ups_nf·i"ESSEBŏby-ŐertJfied ma1l to LESSEE at P 0 Box 2965, Yakima, Washingto Seőie of 4. n?[ice Œy ceœified mail shall be deemed complete upon the date o e postm1l'rŔby cerii!\M matl. E1ther party may change the address for services of notic lJ.¥\.ŕritten 'noticŖ{ŗ"Řhe other party. . , MISCELLANEOUS: LESSEE-..,slfM-J/lh\.ive 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 Telecommunication 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 TELECOMMUNICATION EQUIPMENT RACK SPACE LEASE PAGE30F5 ---PAGE BREAK--- 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. 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 wtitten 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 Telecommunication Equipment Rack Space Lease, as of the date first written above. CITY: LESSEE: City of Moscow, Idaho Noel Communications, Inc. TF.I.E('OMMUNIC'ATION EQUIPMENT RACK SPACE LEASE PAGE4 OF 5 ---PAGE BREAK--- STATE OF IDAHO ) ss. COUNTY OF LATAH ) ACKNOWLEDGMENT On this of 11/0f/ , 2009, before me, a Notary Public in and for said State, appeare£i5 1-L A , known to me to be the person named above and acknowledged that he/she executed the foregoing document as the duly authorized representative for Noel Communications, Inc. TELECOMMUNKATION EQUIPMENT RACK SPACE LEASE PAGES or 5 ---PAGE BREAK---