04-011.00 Columbia FiberCmuraci ~a C-03-120-oU2
DARK I±1kIER OPTIC CABLE IaFASE ANll II~`STALLATION ACRFF)ViENT
This Dark Fiber Optic Cable Lease and Installation Agreement (the "Agreement") is made and entered into this
day of , 2004 (the ">;ffective Date"), between FiherLink LLC dba Columbia Fiber Solutions,
witlr its principal offices located at 10905 B. Montgomery I7r., Suite t, Spokane, Washington 99206-664b
(hereinafter known as "CQLUT~IA") and the City of Spokane Valley, with its principal offices located at 1 1707
1r. Sprague, Spokane Valley, WA 99206 (hereinafter called "Customer') and collectively called "Parties."
RECITALS
WHEREAS, Customer desires to obtain the use of certain fiber optic comrnunieations technology within
and around the city of Spokane Valley; and
VI'FLEREAS, COLUA!fIi1A desires to provide certain fiber optic communications technology [o Customer;
and
R'HY Ri;AS; Customer has requested that COLUMBIA inseall and provide access tq COLUMBIA-o~+ared
fiber optic cotnrtumications technology ;and
NOW, THEREFORE, in consideration of the mutual covenants in this Agreement and other just and
adequate considerations, the Parties, their successors, and assigns do hereby agrrce as follows:
ARTICI,>~ I
SCOPE OF AGREF,MENT
1.1 COLIJA~IA agrees to provide and lease to Customer, and Customer agrees to lease from
COLUvIf3IA; two (2) strands of single-mode fiber optic cable together with appurtenant hardware and
telecommunications equipment (collectively, the "Dark Fiber") providing fiber optic corurectivity to and between the
following locations: City of Spokane Valley City Hall at 11707 E. Sprague Spokane Valley WA 99206 to Ciry of
Spokane Valley Police Station at 12710 E. Sprague Spokane Valley WA 99206. This Agreement is a llark Fiber
lease providing unlimited bandwidth use to Cusiornea'.
ARTICLE 2
INSTALLATION, MA.TNTENANCE AND ACCEPTANCE
2.1 Demarcation Points. As used in this Agreement, "Demarcation Points" shall be defined as the
connection paints between the COI..UM]3L4-owned Dark 1~iber and Customer-owned fiber optic cable or peripheral
equipment, generally a fiber distributipn panel located within a secure communications equipment room within each
facility. "1"he specific location of the Demarcation Points within each facility identified in Article 1.1 above shall be
mutually agreed upon by the Parties prior to construction with the exception of City Hall at 1 1707 E. Sprague, where
a demarcation point for the building already exists.
2.2 Installation and Fee. Cxcept for such specializ~tl construction as defined in Article 2.4 below,
COLUIvfE3IA shall pro~~de all labor, materials and equipment requu•ed to engineer, install, splice and test the Dark
Fiber between the Demarcation Points described in Article. 2.1. Installation and circuit. provisioning shall be
perforrned on a mutually agreed-upon schedule. This installation will include a fiber optic patch panel at each of
Customer's facilities. For the irstallation services described herein, Customer shall pay aone-time installation fee of
approximately hvclve thousand six hundred dollars and no cents ($12,f,0Q.00) to COLUMBIA (the "Installation
Estimate") plus applicable sales and use tax. Both Parties have discussed and agree that the actual installation cost
may be higher than the Installation Estimate, due to unforeseen conditions such as: (a) higher cost of obtaining
public and private easements and permits; and (b) unforest~.n "make ready" work., such as having to make
irnprovemen[s on the facilities of other utilities to accommodate the Dark Fiber that COLUMBIA installs pursuant to
FiUcr Optic Gub1e lx'~sr Adreeretent ! of 7 1tcv. 5/12/04
~j~ ~ /~
~~...
Contract Nn. C-01.120-Q ] 32
this Agreement (collectively "Unforeseen Constnic[ion Conditions"). In the event COLUMBIA encounters any
Unforeseen Construction Conditions, COLUMBIA shall notify Customer of such Unforeseen Constnactian
Conditions, and provide to Customer a rt;vised Installation Estimate (the "Revised Installation Estimate") prior to
undertakins the installation provided far herein.
2.3 Payment I'or Inst<'tllation. Customer agrees to pay [he Installation Estimate described in 2.2
based on the following schedule:
One-hundred percent (1005'0) of the InstallaUOn rstimatc or; in the event that Unfores€en Construction
Conditions are encountered, one-hundred percent (1005b) of the Bevis.-d Installation L°'stimate v~~ll be due
and payable at the Acceptance Date , as defined in Article 2.7, below.
2.4 Customer Responsibilities. Customer shall, at its own expense, be solely responsible for the
purchase, installation and maintenance of all terntinals; fiber optic cable, and other peripheral equipment required by
Customer to interconnect with the Dark f=iber and with other fiber and/or copper telecommunications cable located
on Customer's side of the Demarcation Points at Customer's facilities. In addition, Customer shall, at its oHm
expense, provide all labor, materials and equipment for any spec_iali-red construction that may be reyuircd on
Customer's property including, but not limited to, the installatio^ of new conduit or core drilling. Customer shall
also be solely responsible for obtaining and maintaining all ruts-of-way from Customer's property line to the
Demarcation F'oint and obtaining a building access agreement from the building owner, if not previously in place.
2.S Maintenance of Service. As part of the services provided under this Agreement, COLUMBIA
shall provide all maintenance services of COLUN[I31A-ov`med Dark Fiber and other COL.Ui~1A-owned peripheral
equipment not located on Customer's property, as well as routine scheduled maintenance of COLUMBIA-owned
Dark Fiber and other COLUMBIA-owned peripheral equipment located on Customer's property an COLUIviBIA's
side of the Demarcation Points at no cost to Customer. All other maintenance of COLUIvIB1A-owned Dark fiber
and other COLUivf13IA-owned peripheral equipment (e.o., repairs required due to cable cuts, fires, or ocher acts of
third parties or Force i\4ajeure events) located on Customer's property on COLLJti4:F31A's side of the Demarcation
Points shall be provided by COL,UNIBIA to Customer at the rates set forth iv Article S.4 below. In the event
COLUIvfl3L4 is required to respond to a perceived or actual interruption of Customer's service and it is determined
that ehe interruption was the result of Customer's actions and/or equipment and not attributed to the failure of
COLUI\4F31A's services, COi..UMBIA reserves the right to charge the Customer for said maintenance services at dte
rates set forth in Article 5.4 below,
2.6 1`'rior to conunencement of tl-e 't'erm of this Agreement as defined in Article 4, below,
COLUMBIA shall perform a light meter test of the Dark Fiber circuit to verify that circuit performance to artd
between the locations identified in Article 1.1 above is v<~thin ir~dustty specifications for calculated loss budget
("Fiber Acceptance 'I'cstirtg") and shall, upon receipt of Customer's uTitten request therefore, promptly provide
Customer with a certified report of such test results.
2.7 If COLUMBIA provides the test results to Customer, Customer shall provide COLUiV1:F3IA v<dth a
written notice accepting (or rejecting by specifying the defect or failure in the Fiber Acceptance Testing that is ehe
basis for such rejection) the Dark Fiber. if the Customer fails to notify COLUl9BLA of its acceptance or rejection of
the final test results with respect to the Dark Fiber within fift?~n { I S) days after Customers receipt of such notice,
Customer shall be deemed to have accepted the Dark Fiber. The date of such notice of acceptance (or deemed
acceptance) of the Dark 1=ibex shall be the "Acceptance Dstc" for the Dark Fiber. In no event will the Accept~tncc
Date be later than , 2004. In tht event of any good faith rejection by Customer, COLUMBIA shall take
such action reasonably necessary and as expeditiously as practicable to correct or cure such defect or failure.
ARTICI~>a 3
LEASE
fiber Optic Csble lx~tse .Agreement 2 of 7 Rev. 5JI 2104
Contract No. C-03.1211-01:12
3.1 COLUMJ3JA agrees to exclusively lease to Customer, the Dark Fiber between the Demarcation
Points identified in .Article 1.1 above, for the Term defined in Article 4 and for any exeension or renewal thereof artd
on otI-er terms and conditions stated in this Agreement.
ARTICLE 4
LEASE TE:ItA~f
4.1 The initial non-cancelable terrrr of this Agreement shall commence on the Acceptance Date and
shall remain in effect for a period of two (2) years (the "Term"). Thereafter, Customer may, at its option, extend
the Terrn for an additional period of time, not to exceed the remaining period of time on the franchise agreement
between the Customer and COLT3MBJA.
ARTTCT..F., a
LEAST PAYMEYT AND OT1~ER C>'LARGES
5.1 In consideration for dte Dark Fiber to be provided by COLTMBIA pursuant to this Agreement,
Customer agrees to make a total of hventy four (24) monthly lease pa}intents (the "Lease Payments") to
COLUMBIA. It is agreed that Customer's obligation to make Lease Payments shall begin on the Acceptance Date,
and continue until all twenty four (24) Least: Payments have been made to COLUwIB1A. Customer understands
that the term of this Lease is non-cancelable, and, therefore, Customer's obligation to make Lease Payments
continues, regardless of Customer's actual usage of the Dark Fiber. The amount of each Lease Payment shall be in
accordance with tTre schedule set forth in Article 5.2 below.
5.2 "I'lte Lease Payment obligation, due on the first day of each month.: shall be thirty dollars and nn
cents (S30.U0) plus applicable sales and use cox, for the remainder of the Term. The Lease Payment. obligation
rept'esents that Spokane Valley is being charged 520.00 pea' pair of fiber in use per mile pursuant to Ute ordinance
granting >fber a nonexclusive franchise, Spokane Valley Ordinance No. 03-073, and tJte distance between the
demarcation points is l.5 miles.
5.3 T..ease Payments, and any other payments shall be mailed or delivered to the following billing
address:
Mailing Address (~,~~ment purposessznly~:
Columbia fiber Solutions
14905 L. Montgomery Drive, Suite 1
Spokane,lNA 99206-660b
If any part of a ]ease Payment or other payment obligation of Customer is more than tltirTy (30) days past
due, such amount shall accnie interest from the date such payment is due until paid, including accrued interest
Compounded mont}tly, at an annual rate equal eo pnc and one half percent (1.54'0) per month on dte outstanding
balance.
5.4 ir~taintenance Ch~r~~~, Pursuant to Article 25, COLLTIv1J3IA personnel shall be billed to
Custnmcr at dte following per person rates:
iVorrnal Business Hours (8 am t.o S pm M-N PST) Non-Business Hours
Minimum call out charge (lA' hour, each mobilization) $150.00 /hr $ 250,Q0/hr
Additional hours $ 7x.00 /hr $ 150.00/lu'
!rt addition, COLUMBIA will charge for all of its out of pocket costs far any subcontractor support and
material required.
Maintenance Charges are subjet;t to change upon written notice to Customer.
I~tber Optic Cable [masse A;~,ment 3 of 7 Rev. 5!1104
Contract Nn. CA3-12Q-4132
5.5 In addition to the Lease Pa}'menu and other charges pursuant to Article 5 due under this
Agreement, Customer shall pay amounts equal to its share of arty taxes, duties, and impositions resulting from this
Agreement for any activities hereunder, exclusive of taxes based upon COLLTi\ZBIA's net income.
ARTICLE 6
LEASE STATUS
6.1 The Fariies intend that this Agreement shatll operate as a `lease", as defined by Washington State
law. COLUMBIA'S Dark Fiber shall not be construed to result in the transfer of title to any part of the Darl: Fiber to
Customer or in the creation of a "security interest" within the meaning of Washington State law. Customer disclaims
any interest it may claim in the materials, cyuipment, fiber optic cable and all personal property installed by
COLUIvfB1A between the Demarcation Points as a fixture. Any materials, equipment, Tiber optic cable artd other
personal property shall remain COLUMIILA's personal property even though it is installed to the real property of the
Customer. Customer acknowledges that it has no option to purchase an}~ part of the materials, cyuipment, fiber optic
cable and other personal property of COLUA4.BTA installed between the Demarcation Points.
ARTICLE 7
OTI-IER RE+SPONSIBILI 1"Il+'.S AI~iD OIILIGA'I'lONS OF TIME Fr1RTIES
7.1 Moves, adds, and changes of, to, and affecting the Dark Fiber at the locations identified in Article
I. ] ,which are requested by Customer, shall be provided by COLUMBIA at the then-current time and material rates,
with payment tertns of 504o due upon Customer approval of cost. estimate, and the balance payable upon contplelion
of the work. During the initial Term, Customer may request that COLUMBL4's services be provided to alternative
location(s) than the location(s) set forth in Article 1.1 above. Customer shall pay adequate and agreed upon
nonrecurring charges to transfer the services to such a.ltemative location(s). 'The Lean: Payment set forth in Article
52 above will be applied to a new Lease Payment applicable to the new location(s) based on then ~ current
COLUMBIA (ease rates. In the event of such a request, both parties agree to enter into a new then current
COLUR~il3IA lease agreement t}tat documents the new location(s) and the new Lease Payment.
7.2 Customer agrees to assume full and complete control, responsibility, and liability for the content
and signals transmitted through the Dark Fiber by its employees, customers., agents, and invitees, and Customer
further assotnes all liability from any third party claims, suits, or disputes over such content and signals.
7.3 COLUMBIA and Customer tip ee that COLUMI3IA's Dark Fiber shall not be used in a manner
that. could be construed as n violation of this Agreement, or any laws, regulations, orders, and/or rules of any
governmental authority having jurisdiction. Customer and COLUT2BL4 agree [o take all reasonable actions as may
be appropriate to compl}' with all laws, regulations; orders and/or rules, that may be applicable to them jointly or
severally by rcasan of the transactions contemplated in this Agreemenr_
7,a Mach Fatty shall indetnnify and hold hat•rr,less the otJter Party and its respective officers, agents and
employees from and against all claims, damages, lasses, liabilities, and costs arising from its negligent acts or
omissions.
ARTICLE 8
FORC>1 MA,JI+~UR>u
8.1 Except for Customer's obligation to retnit payments for the Dark Fiber services hereunder, in the
event either Parry is prevented from performing it obligations under this Agreement due to circumstances beyond its
control including, without limitation, labor disputes, power outages or shortages, fire, explosion, flood, drought, acts
of Cod, war or other hostilities, civil commotion, domestic or foreign governmental eels, orders, or regulations, or if
Customer or COLUMILA is notified by a state or federal regulatory body that any aspect of this Agreement does trot
Fiber Optic Cabte I_.ctise Agreement 4 of 7 Rsv. 5I]2/U4
coousac, No. e-o3-~~0-032
comply with any applicable law, regulation: rule: or policy, then the obligation of COLU1v113]A to provide services
and/or the obligation of the Customer to accept services hereunder shall be suspended during the period of such
disability.
ARTICLE 9
I..NIIT.4TION OI: L] ABILITY AND DISC:LAlA4EIt
9.1 COI.UViBL4 MAKES NO REPRESFN'1'AT10N OR WARRANTY >~ITHER DRESSED OR
IMPLI}~D R1;GARDiNG THE laAR1C FIBER, SERVICES OR SYST)~M EfZl3il'lVfE1dT, ANA SPECIFICALLY
ll1SCLAJMS ANY WARRAl~1TY, INCLUDING IIUT NOT LI1~IITED TO ANl' IMPLIED WA:RI2ANTT.>~S OF
MFRCHAN'1'.gE3IL1TY AND/OR FIT~rLSS FOR A PARTICULAR PURPOSE, AND ASSUMES NO
OBLIGATION WITH RESPLCI° TO THE ENFORC1rMENT OF ANI.' M/\NUF.AC1'CfRLR'S WARRANTIES
AND GUA12A,~'TEFS. No defect, unfitness, or other condition of system equipment or services shall relieve the
Customer of tt,e obligation to pay any charges hereunder or perform any other obligations under this A~ex:ment.
9.2 Customer`s sole and exclusive remedies for breach or non-performance: of dais Agreement, by
COLUMIIA shall be, at COI..UMI3LA's election, re-performance and/or repair or replacement by COLUMBIA of
any defective services, or of any defective equipment provided in connection with the services, or the refund of any
compensation actually paid to COLUMILA by Customer during the period of such breach or nonperformance.
COi,UMBLA will in no event be liable for consequential or incidental damages, including but not limited to,
damages for loss of use, lost profit, loss of business or goodwill; or other financial injury arising out of or in
connection with the maintenance, use, performance or failure of the Service or equipment. 1n no event shall
COLUV1k3IA be liable fvr any loss or damage relating to a claim for personal injury arising out of or in connection
with maintenance, use, performance or failure of the Service or equipment. COLUA~LBIA's liabilit~~ to site Custoner,
for damages, from any cause ufiatsoever and regardless of the form of the action, whether in contract, in tort
(including negligence or strict liability) or by statute, shall be limited to direct damages and shall not exceed the
value of the total payments paid to COLUMBLA under this Agreement.
).3 It is expressly understood that COi.iJMBL~1's ]lark Fiber may he routed [ltrbugh various city,
county, state and/or odaea~ third party road rights-of-way and under frdnchisc with city, cotmty, state andlor other third
parties, and drat these parties shall be made athird-party beneficiary of the ]imitations of liability slated in A.rt.iclc 9.2
above.
ARTICLE 10
DFFAUL'I-AND ItEiVIEDIRS
]U.1 Any of the following shall constitute an event of default: (a) Customer fails to pay any Lease
Paytttent or any other amount owed to COLUIv>BLA within thu•ry (30) days after its due slate; (b) Customer fails to
perform or observe any other representation, warranty, covenant, condition or agreement with COT UMBLA and fails
to cure such breach within thirty (30) days after written notice; (c) any representation or warranty made by Customer
hereunder or in any other instrument provided to COLUwBLA by Customer proves to be incorrect in any material
respect. when made: (c) Customer becomes insolvent or fails generally to pay its debts as they become due; (f)
Customer voluntarily or involuntarily dissolves or is dissoh~ed or terminates or is terminated; or (g) COLUMBIA
fails to observe or perform any of its representations, warranties, and/or obligations with Customer and fails to cure
such breach within thirty (30) days after written notice.
1 U.2 In the event of a default by either party, the non-defaulting party shall have the right to exercise
any or all of the following remedies to the extent applicable: (a) tem-inate this Agreement, (b) declat•e all Lease
payments and odner amounts under this Agrelement immediately due and payable; (c) proceed to enforce the remedies
of a secured party under ~1~ashington State law; (d) proceed by court action to enforce performance of this
Agreement and any remedy provided far herein and/or recover all damages of any default or exercise any other right
or remedy available at law or in equity; and (e) disconnect andJor remove the fiber optic cable and eyuiprnent.
Fiber optic Cable base Agreement 5 of 7 Rcv. 511
Caau~acc No. C•03- 12U•U t 3?
ARTICLE 11
GOVERNING LA W ANll Vh,NUL
I I J This Agreement shall be governed, interpreted and enforced according to dte la~~^s of the State of
Washington, without reference to its conflicts of law principles. Thy venue of any action or proceeding arising out
of ar relater] to this A~ eeme.nt shall be in Spokane County: Washington.
ARTICLE 12
A'1"1'URNEY'S FErS
12.1 If any suit or action is fled by any Party to enforce this Agreement or otherwise ~~th respect to the
subject matter of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees, as fixed
by die reviewing court, incurred ut investiga[ion of related matters and in preparation for the prosecution of such suit
or action as fixed by the trial court and if any appi;al or other form of review is taken from the decision of the trial
court. or any srabsequent court.
Alt7'1CLls 13
13.1 Nothing contained in this .Agreement shall be construed [o create any partntirship or agency
relationship between the Parties for any purpose, action, or transacrion, including those related to the performance c>f
this Agreement.
13.2 COIdUMBTA may, without Customer's consent, assigm or otherv.~se transfer this .A~reemem or its
rights or obligations herewider to any other parry, in whole or in part, except as provided for in~the ordinance
granting CQLUZviBIA a nonexclusive franchise, Spokane Valley Ordinance No. 03-073. Any such assignee shall
agree in writing to be bound and abide by this Agreement. Customer may not assign or sublease this Agrcernc:nt or
any interest, payment, or rights hereunder widrout dte prior v.Titten consent of COLUh~IA.
13.3 If any portion of this Agreement is stricken as an invalid provision; the remaining portions of this
Agreement shall remain in full force and effect and shall continue to be binding upon the Parties.
13.4 Waiver of any provisions in this Agreement or failure of either Parry to enforce any of its rights
under this Agreement in a particular instance shall not be consuved as a permanent waiver of those rights or any
other rights under this Ageement.
13.5 All notices, requests, demands and other communications made pursuant to this Agreement shall
be ui writing and shall be deemed duly given if personally delivered or sent by registered, postage prepaid, as
l'o11oa^s, or to such other address or person as either parry may designate by notice to the other party:
(a) If to COLIMBIA:
Columbia Fiber Solutions
10905 E. Montgomery Drive: Suite I
Spokane, V1'A 99206-6606
Attn: John Everett
Phone: (5(Y9) 688-45 19
1=ax: (509) 688-h099
(b) If to Customer:
City at'Spokane Valley
11707 Ir. Sprague
Spokane Valley, OVA 9920b
Attn: Ken Thompson
Finance R Administrative Services Director
Phone: (509) 688-0027 .
Fax: (509) 921-1008
Fbcr Optic Cable Lcasc Agreement 6 of 7 Rev. SJl2/U4
Convart eVo. C-03-120-0132
Iw V4'ITNES$ WHEREOF, this Agreement has been executed by s duly authorized representative of each Party as
ctf the day and year first above written.
COLUT4BIA FIBER SOLUTIONS
r
(Authorized Signature)
.lohn Everett
(Printed lame)
Gencrtl M9IIA~l'r
(Title)
iz.~~
(Date)
CITY OF SPOtiAi\'E VALLEY
~o
(Audhorized Signature)
iq /i d /~.E~C~i~~.
(Printed Name)
(Title)
~ =-/7'~e `f'
(I)a te)
Fbra~ Optic Cnbfe Lease Agreea»ent ? of 7 12ev. 51 i JOG
CONTRACT TOPIC:
CITY OF SPOKANE VALLEY
CONTRACT AUTHORIZATION
Submitting Dept: F~~~tiC ~ /~PE~r9-~on1s ~` QOM r,~/ ,
Date: oS /~ i~
T7
Budget Account No:
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CONTRACT BACKGROUND:
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Subm' 'r~g.Dep~ ment Le I Finance
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Cit Mana er ~Cit Clerk J~ ~~° ~'r ~~~ e,~
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DISTRIBUTION:
Submitting Department
Accounting
Vendor