06-103.00 Columbia Fiber Solutions: Dark Fiber Optic Cable Lease & InstallationContract No. C -06 -24 -0247
DARK FIBER OPTIC CABLE LEASE AND INSTALLATION AGREEMENT
This Dark Fiber Optic Cable Lease and Installation Agreement (the "Agreement ") is made and entered into this 16
day of 2006 (the "Effective Date "), between FiberLink LLC dba Columbia Fiber Solutions,
with its principal offices located at 10905 E. Montgomery Dr., Suite 1, Spokane Valley, Washington 99206 -6606
(hereinafter known as "COLUMBIA ") and the City of Spokane Valley, with its principal offices located at 1 1707
E. Sprague, Spokane Valley, WA 99206 (hereinafter called "Customer ") and collectively called "Parties."
RECITALS
WHEREAS, Customer desires to obtain the use of certain fiber optic communications technology within
and around the city of Spokane Valley; and
WHEREAS, COLUMBIA desires to provide certain fiber optic communications technology to Customer;
and
WHEREAS, Customer has requested that COLUMBIA install and provide access to COLUMBIA -owned
fiber optic communications 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 agree as follows:
ARTICLE 1
SCOPE OF AGREEMENT
1.1 COLUMBIA agrees to provide and lease to Customer, and Customer agrees to lease from
COLUMBIA, two (2) strands of single -mode fiber optic cable together with appurtenant hardware and
telecommunications equipment (collectively, the "Dark Fiber ") providing fiber optic connectivity to and between the
following locations ( "the Locations "): City of Spokane Valley City Hall at 11707 E. Sprague Spokane Valley WA
99206 to Washington State Department of Transportation ( "WSDOT ") at 7421 E. Appleway Blvd Spokane Valley
WA 99206. This Agreement is a Dark Fiber lease providing unlimited bandwidth use to Customer.
ARTICLE 2
INSTALLATION, MAINTENANCE AND ACCEPTANCE
2.1 Demarcation Points. As used in this Agreement, "Demarcation Points" shall be defined as the
connection points between the COLUMBIA -owned Dark Fiber and Customer -owned fiber optic cable or peripheral
equipment, generally a fiber distribution panel located within a secure communications equipment room within each
facility. The specific Demarcation Point within the City of Spokane Valley City Hall is the existing fiber distribution
panel in that Facility. The specific Demarcation Point within the WSDOT building will be a new fiber distribution
panel in that Facility to be placed in the basement telecom room..
2.2 Installation and Fee. Except for such specialized construction as defined in Article 2.5 below,
COLUMBIA shall provide all labor, materials and equipment required to engineer, install, splice and test the Dark
Fiber between the Demarcation Points described in Article 2.1. Installation and circuit provisioning shall be
performed on a mutually agreed -upon schedule. This installation will include a fiber distribution panel at each of
Customer's Locations (unless already present). For the installation services described herein, Customer shall pay a
one -time installation fee of approximately five thousand and four hundred fifty five dollars ($5,455.00) 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) unforeseen "make ready" work, such
as having to make improvements on the facilities of other utilities to accommodate the Dark Fiber that COLUMBIA
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installs pursuant to this Agreement (collectively "Unforeseen Construction Conditions "). In the event COLUMBIA
encounters any Unforeseen Construction Conditions, COLUMBIA shall notify Customer of such Unforeseen
Construction Conditions, and provide to Customer a revised Installation Estimate (the "Revised Installation
Estimate ") prior to undertaking the installation provided for herein.
2.3 Installation Date. Both Parties have discussed and agreed that the Dark Fiber is estimated to be
available within 90 business days from the Effective Date ( "The Estimated Completion Date "). The Estimated
Completion Date may change due to conditions including but not limited to (a) the actual time required to obtain
pole and conduit rights, public and private easements, building access agreements and permits; and (b) unforeseen
"make ready" work, such as having to make improvements on the facilities of other utilities to accommodate the
Dark Fiber that COLUMBIA installs pursuant to this Agreement (collectively "Changes to the Estimated Completion
Date "). In the event COLUMBIA encounters any Changes to the Estimated Completion Date, COLUMBIA shall
notify Customer of such Changes to the Estimated Completion Date, and provide to Customer a revised estimated
completion date (the "Revised Estimated Completion Date ").
2.4 Payment for Installation. Customer agrees to pay the Installation Estimate described in 2.2
based on the following schedule:
One - hundred percent (100 %) of the Installation Estimate or, in the event that Unforeseen Construction
Conditions are encountered, one - hundred percent (100 %) of the Revised Installation Estimate will be due
and payable at the Acceptance Date , as defined in Article 2.8, below.
2.5 Customer Responsibilities. Customer shall, at its own expense, be solely responsible for the
purchase, installation and maintenance of all terminals, fiber optic cable, and other peripheral equipment required by
Customer to interconnect with the Dark Fiber and with other fiber and /or copper telecommunications cable located
on Customer's side of the Demarcation Points at Customer's Locations. In addition, Customer shall, at its own
expense, provide all labor, materials and equipment for any specialized construction that may be required at
Customer's Locations including, but not limited to, the installation of new conduit or core drilling, specifically.
conduit access into the demarcation room at 7421 E. Appleway Blvd. Customer shall be solely responsible for
obtaining and maintaining all rights -of -way from each Location's property line to the Demarcation Point, permissions
to occupy and access both Locations identified in Article 1.1 and ensuring COLUMBIA has in place a valid
COLUMBIA form of building access agreement from the Location's owners, if not previously in place.
2.6 Maintenance of Service. As part of the services provided under this Agreement, COLUMBIA
shall provide all maintenance services of COLUMBIA -owned Dark Fiber and other COLUMBIA -owned peripheral
equipment outside of the Locations identified in Article 1.1, as well as routine scheduled maintenance of
COLUMBIA -owned Dark Fiber and other COLUMBIA -owned peripheral equipment installed at the Locations
identified in Article 1.1 on COLUMBIA's side of the Demarcation Points at no cost to Customer. All other
maintenance of COLUMBIA -owned Dark Fiber and other COLUMBIA -owned peripheral equipment (e.g., repairs
required due to cable cuts, fires, or other acts of third parties or Force Majeure events) installed at the Locations
identified in Article 1.1 on COLUMBIA's side of the Demarcation Points shall be provided by COLUMBIA to
Customer at the rates set forth in Article 5.4 below. In the event COLUMBIA is required to respond to a perceived
or actual interruption of Customer's service and it is determined that the interruption was the result of Customer's
actions and /or equipment and not attributed to the failure of COLUMBIA's services, COLUMBIA reserves the right
to charge the Customer for said maintenance services at the rates set forth in Article 5.4 below.
2.7 Prior to commencement of the Term 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 and
between the Locations identified in Article 1.1 above is within industry specifications for calculated loss budget
( "Fiber Acceptance Testing ") and shall, upon receipt of Customer's written request therefore, promptly provide
Customer with a certified report of such test results.
2.8 If COLUMBIA provides the test results to Customer, Customer shall provide COLUMBIA with a
written notice accepting (or rejecting by specifying the defect or failure in the Fiber Acceptance Testing that is the
basis for such rejection) the Dark Fiber. If the Customer fails to notify COLUMBIA of its acceptance or rejection of
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the final test results with respect to the Dark Fiber within fifteen (15) 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 Fiber shall be the "Acceptance Date" for the Dark Fiber. In the 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.
ARTICLE 3
LEASE
3.1 COLUMBIA 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 extension or renewal thereof and
on other terms and conditions stated in this Agreement.
ARTICLE 4
LEASE TERM
4.1 The initial non - cancelable term 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 Term for an additional period of time, not to exceed the remaining period of time on the franchise agreement
between the Customer and COLUMBIA.
ARTICLE 5
LEASE PAYMENT AND OTHER CHARGES
5.1 In consideration for the Dark Fiber to be provided by COLUMBIA pursuant to this Agreement,
Customer agrees to make a total of twenty four (24) monthly lease payments (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) Lease Payments have been made to COLUMBIA. 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 the schedule set forth in Article 5.2 below.
5.2 The Lease Payment obligation, due on the first day of each month, shall be eighty dollars and no
cents ($80.00) plus applicable sales and use tax, for the remainder of the Term. The Lease Payment obligation
represents that Spokane Valley is being charged $20.00 per pair of fiber in use per mile pursuant to the ordinance
granting Fiber a nonexclusive franchise, Spokane Valley Ordinance No. 03 -073, and the distance between the
demarcation points is 4 miles.
address:
5.3 Lease Payments, and any other payments shall be mailed or delivered to the following billing
Mailing Address (for payment purposes only):
Columbia Fiber Solutions
10905 E. Montgomery Drive, Suite 1
Spokane, WA 99206 -6606
If any part of a Lease Payment or other payment obligation of Customer is more than thirty (30) days past
due, such amount shall accrue interest from the date such payment is due until paid, including accrued interest
compounded monthly, at an annual rate equal to one and one half percent (1.5%) per month on the outstanding
balance.
5.4 Maintenance Charges. Pursuant to Article 2.5, COLUMBIA personnel shall be billed to
Customer at the following per person rates:
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Normal Business Hours (8 am to 5 pm M -F PST) Non - Business Hours
Minimum call out charge (1" hour, each mobilization) $150.00 /hr $ 250.00 /hr
Additional hours $ 75.00 /hr $ 150.00 /hr
In addition, COLUMBIA will charge for all of its out of pocket costs for any subcontractor support and
material required.
Maintenance Charges are subject to change upon written notice to Customer.
5.5 In addition to the Lease Payments and other charges pursuant to Article 5 due under this
Agreement, Customer shall pay amounts equal to its share of any taxes, duties, and impositions resulting from this
Agreement for any activities hereunder, exclusive of taxes based upon COLUMBIA's net income.
ARTICLE 6
LEASESTATUS
6.1 The Parties intend that this Agreement shall 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 Dark 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, equipment, fiber optic cable and all personal property installed by
COLUMBIA between the Demarcation Points as a fixture. Any materials, equipment, fiber optic cable and other
personal property shall remain COLUMBIA's personal property even though it is installed to the real property of the
Customer. Customer acknowledges that it has no option to purchase any part of the materials, equipment, fiber optic
cable and other personal property of COLUMBIA installed between the Demarcation Points.
ARTICLE 7
OTHER RESPONSIBILITIES AND OBLIGATIONS OF THE PARTIES
7.1 Moves and changes of, to, and affecting the Dark Fiber at the Locations identified in Article ] .I
after the Acceptance Date, shall be provided by COLUMBIA at the then- current time and material rates, with
payment terms of 50% due upon Customer approval of cost estimate, and the balance payable upon completion of
the work. This includes, but is not limited to, all moves and changes regardless of whether requested by Customer,
the Location's owners (e.g. remodeling work undertaken by the Location's owner) or any other parties or
circumstances. During the initial Term, Customer may request that COLUMBIA'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 non recurring charges to transfer the services to such alternative location(s). The Lease Payment set forth in
Article 5.2 above will be applied to a new Lease Payment applicable to the new location(s). In the event of such a
request, both parties agree to enter into a new then current COLUMBIA lease agreement that 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 assumes all liability from any third party claims, suits, or disputes over such content and signals.
7.3 COLUMBIA and Customer agree that COLUMBIA's Dark Fiber shall not be used in a manner
that could be construed as a violation of this Agreement, or any laws, regulations, orders, and/or rules of any
governmental authority having jurisdiction. Customer and COLUMBIA agree to take all reasonable actions as may
be appropriate to comply with all laws, regulations, orders and/or rules, that may be applicable to them jointly or
severally by reason of the transactions contemplated in this Agreement.
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7.4 Each Party shall indemnify and hold harmless the other Party and its respective officers, agents and
employees from and against all claims, damages, losses, liabilities, and costs arising from its negligent acts or
omissions.
ARTICLE 8
FORCE MAJEURE
8.1. Except for Customer's obligation to remit payments for the Dark Fiber services hereunder, in the
event either Party 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 God, war or other hostilities, civil commotion, domestic or foreign governmental acts, orders, or regulations, or if
Customer or COLUMBIA is notified by a state or federal regulatory body that any aspect of this Agreement does not
comply with any applicable law, regulation, rule, or policy, then the obligation of COLUMBIA 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
LIMITATION OF LIABILITY AND DISCLAIMER
9.1 COLUMBIA MAKES NO REPRESENTATION OR WARRANTY EITHER EXPRESSED OR
IMPLIED REGARDING THE DARK FIBER, SERVICES OR SYSTEM EQUIPMENT, AND SPECIFICALLY
DISCLAIMS ANY WARRANTY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND /OR FITNESS FOR A PARTICULAR PURPOSE, AND ASSUMES NO
OBLIGATION WITH RESPECT TO THE ENFORCEMENT OF ANY MANUFACTURER'S WARRANTIES
AND GUARANTEES. No defect, unfitness, or other condition of system equipment or services shall relieve the
Customer of the obligation to pay any charges hereunder or perform any other obligations under this Agreement.
9.2 Customer's sole and exclusive remedies for breach or non - performance of this Agreement, by
COLUMBIA shall be, at COLUMBIA'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 COLUMBIA by Customer during the period of such breach or nonperformance.
COLUMBIA 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. In no event shall
COLUMBIA be liable for 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. COLUMBIA's liability to the Customer,
for damages, from any cause whatsoever 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 COLUMBIA under this Agreement.
9.3 It is expressly understood that COLUMBIA's Dark Fiber may be .routed through various city,
county, state and/or other third party road rights -of -way and under franchise with city, county, state and/or other third
parties, and that these parties shall be made a third -party beneficiary of the limitations of liability stated in Article 9.2
above.
ARTICLE 10
DEFAULT AND REMEDIES
10.1 Any of the following shall constitute an event of default: (a) Customer fails to pay any Lease
Payment or any other amount owed to COLUMBIA within thirty (30) days after its due date; (b) Customer fails to
perform or observe any other representation, warranty, covenant, condition or agreement with COLUMBIA and fails
to cure such breach within thirty (30) days after written notice; (c) any representation or warranty made by Customer
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hereunder or in any other instrument provided to COLUMBIA by Customer proves to be incorrect in any material
respect when made; (e) Customer becomes insolvent or fails generally to pay its debts as they become due; (f)
Customer voluntarily or involuntarily dissolves or is dissolved 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.
10.2 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) terminate this Agreement; (b) declare all Lease
payments and other amounts under this Agreement immediately due and payable; (c) proceed to enforce the remedies
of a secured party under Washington State law; (d) proceed by court action to enforce performance of this
Agreement and any remedy provided for 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 and/or remove the fiber optic cable and equipment.
ARTICLE 11
GOVERNING LAW AND VENUE
11.1 This Agreement shall be governed, interpreted and enforced according to the laws of the State of
Washington, without reference to its conflicts of law principles. The venue of any action or proceeding arising out
of or related to this Agreement shall be in Spokane County, Washington.
ARTICLE 12
ATTORNEY'S FEES
12.1 If any suit or action is filed by any Party to enforce this Agreement or otherwise with respect to the
subject matter of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees, as fixed
by the reviewing court, incurred in investigation of related matters and in preparation for the prosecution of such suit
or action as fixed by the trial court and if any appeal or other form of review is taken from the decision of the trial
court or any subsequent court.
ARTICLE 13
MISCELLANEOUS
13.1 Nothing contained in this Agreement shall be construed to create any partnership or agency
relationship between the Parties for any purpose, action, or transaction, including those related to the performance of
this Agreement.
13.2 COLUMBIA may, without Customer's consent, assign or otherwise transfer this Agreement or its
rights or obligations hereunder to any other party, in whole or in part, except as provided for in the ordinance
granting COLUMBIA 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 Agreement or
any interest, payment, or rights hereunder without the prior written consent of COLUMBIA.
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 Party to enforce any of its rights
under this Agreement in a particular instance shall not be construed as a permanent waiver of those rights or any
other rights under this Agreement.
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13.5 All notices, requests, demands and other communications made pursuant to this Agreement shall
be in writing and shall be deemed duly given if personally delivered or sent by registered, postage prepaid, as
follows, or to such other address or person as either party may designate by notice to the other party:
(a) If to COLUMBIA:
Columbia Fiber Solutions
10905 E. Montgomery Drive, Suite 1
Spokane, WA 99206 -6606
Attn: John Everett
Phone: (509) 688 -4519
Fax: (509) 688 -4099
(b) If to Customer:
City of Spokane Valley
11707 E. Sprague
Spokane Valley, WA 99206
Attn: Ken Thompson
Finance & Administrative Services Director
Phone: (509) 688 -0027
Fax: (509) 921 -1008
IN WITNESS WHEREOF, this Agreement has been executed by a duly authorized representative of each Party as
of the day and year first above written.
COL
Authorized Signature)
John Everett
(Printed Name)
General Manager
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CITY OF SPOKANE VALLEY
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