HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 05/05/2020 - SECOND READING OF ORDINANCE NO. 011, AUTHORIZING AAgenda Item 2
Item # 2 Page 1
AGENDA ITEM SUMMARY May 5, 2020
Electric Utility Enterprise Board
STAFF
Erin Shanley, Broadband Marketing Manager
Colman Keane, Broadband Director
Cyril Vidergar, Legal
Gerry Paul, Director of Purchasing & Risk Management
SUBJECT
Second Reading of Ordinance No. 011, Authorizing an Intergovernmental Agreement with the Colorado
Department of Transportation for the Lease of Fiber Optic Data Transport Capacity.
EXECUTIVE SUMMARY
This item is coming to the Electric Utility Enterprise Board due to its time-sensitive nature related to network
operation and continued business activities. Many aspects of Connexion’s network design and buildout,
already in progress, are dependent upon this nearly completed item.
This Ordinance, unanimously adopted on First Reading on April 21, 2020, approves a multi-year
Intergovernmental Agreement (IGA) between the City’s Electric Utility Enterprise and the Colorado Department
of Transportation (CDOT) for the purpose of leasing two dark fiber strands from Fort Collins to Denver. CDOT
was chosen to provide this service as it met all requirements at the lowest price available. In addition, this IGA
helps to meet requirements detailed in IGAs referenced in Resolutions 2019-072 and 2019-073 (shared
regional Broadband Transport and Access services with the City of Loveland and Town of Estes Park) by
providing such access between Fort Collins and Denver.
STAFF RECOMMENDATION
Staff recommends the adoption of the Ordinance on Second Reading.
ATTACHMENTS
1. First Reading Agenda Item Summary, April 21, 2020 (w/o attachments) (PDF)
2. Ordinance No. 011 (PDF)
Agenda Item 2
Item # 2 Page 1
AGENDA ITEM SUMMARY April 21, 2020
Electric Utility Enterprise Board
STAFF
Erin Shanley, Broadband Marketing Manager
Colman Keane, Broadband Director
Cyril Vidergar, Legal
Gerry Paul, Director of Purchasing & Risk Management
SUBJECT
First Reading of Ordinance No. 011, Authorizing an Intergovernmental Agreement with the Colorado
Department of Transportation for the Lease of Fiber Optic Data Transport Capacity.
EXECUTIVE SUMMARY
This item is coming to Council due to its time-sensitive nature related to network operation and continued
business activities. Many aspects of Connexion’s network design and buildout, already in progress, are
dependent upon this nearly completed item.
The purpose of this item is to approve a multi-year Intergovernmental Agreement (IGA) between the City’s
Electric Utility Enterprise and the Colorado Department of Transportation (CDOT) for the purpose of leasing two
dark fiber strands from Fort Collins to Denver. CDOT was chosen to provide this service as it met all
requirements at the lowest price available. In addition, this IGA helps to meet requirements detailed in IGAs
referenced in Resolutions 2019-072 and 2019-073 (shared regional Broadband Transport and Access services
with the City of Loveland and Town of Estes Park) by providing such access between Fort Collins and Denver.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
As part of Fort Collins Connexion’s delivery of Internet, voice, and video services, fiber optic connectivity to
regional and national telecommunication facilities outside the City is required. Fort Collins Connexion’s system
design calls for redundant paths utilizing “dark fiber” to connect to data centers which provide connectivity with
multiple telecommunication providers (these data centers are also known as “meet-me rooms”). The nearest
data center meeting Fort Collins Connexion technical requirements is located at 910 15th Street in Denver,
Colorado and has direct connectivity to multiple providers with which the City already has contracts for Internet,
voice, and video services. To utilize connections to these and other providers from this location, a fiber back-
haul circuit is needed to connect back to Fort Collins Connexion local network equipment in Fort Collins.
On January 11, 2019, Fort Collins Connexion received proposals in response to Request for Proposal #8848
Upstream Connectivity Services. In addition to the single response received by the City, Connexion contacted
CDOT and received information from CDOT regarding availability of “dark” (i.e., unused) fiber from Fort Collins
to Denver. CDOT provided the most competitive rate to lease two strands of fiber to the City for up to twenty
years. The table below shows the comparison of quoted pricing from Zayo and CDOT.
ATTACHMENT 1
Agenda Item 2
Item # 2 Page 2
Price Comparison
Zayo CDOT
Monthly Price $2,970.00 $1,212.22*
Term of Contract 5 year 20 year
* CDOT’s pricing begins at $902.27/month in year one and escalates 3% each year to $1582.14/month in year 20, for an average of
$1212.22/month over the life of the agreement.
CDOT maintains a state-wide fiber-optic network and leases unused fiber strands to other government and
municipal entities. CDOT meets Fort Collins Connexion’s technical requirements for two strands of dark fiber
following a path from Fort Collins to 910 15th St in Denver. CDOT contracts with Zayo to provide day-to-day
maintenance and support of this fiber, as well as emergency response.
The transport and capacity obtained on CDOT fibers under this lease will be part of the services and facilities
shared with the City of Loveland (Loveland Pulse) and Town of Estes Park (Trailblazer Broadband) as part of
the existing IGAs approved by Council in Resolutions 2019-072 and 2019-073 (shared regional Broadband
Transport and Access services with the City of Loveland and Town of Estes Park).
The request from Fort Collins Connexion is for the Electric Utility Enterprise Board to approve (by Ordinance
because of the lengthy term) the proposed IGA with CDOT for lease of one pair (2 fiber strands) of dark fiber for
up to twenty years, as a necessary physical connection for the operation of telecommunication facilities and
services delivered by the Enterprise.
CITY FINANCIAL IMPACTS
This IGA represents no impact to the General Fund. The fiber lease costs will be paid from Fort Collins
Connexion’s 2020 budget and funded by appropriated bond proceeds in the short term and by Connexion user
revenues thereafter.
ATTACHMENTS
1. Connexion_AIS_CDOT_Pricing (PDF)
2. CDOT Dark Fiber Presentation (PDF)
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ORDINANCE NO. 011
OF THE CITY OF FORT COLLINS ELECTRIC UTILITY ENTERPRISE
AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT
WITH THE COLORADO DEPARTMENT OF TRANSPORTATION FOR
THE LEASE OF FIBER OPTIC DATA TRANSPORT CAPACITY
WHEREAS, the City of Fort Collins, Colorado is a duly organized and existing home rule
municipality of the State of Colorado, created and operating pursuant to Art. XX of the
Constitution of the State of Colorado and the home rule charter of the City (the “Charter”); and
WHEREAS, pursuant to Section 19.3(b) of the Charter Art. V (“Section 19.3(b)”), the City
Council has established the City’s Electric Utility as an enterprise of the City (the “Enterprise”) in
ordinances codified in §26-392 of the Fort Collins City Code (the “Code”); and
WHEREAS, pursuant to Section 19.3(b) and Code §26-392, the Council has authorized
the Enterprise, by and through the Council sitting as the board of the Enterprise (the “Board”), to
enter into financial obligations, payable solely from operations of the Electric Utility; and
WHEREAS, voters of Fort Collins approved all legally required ballot measures to
authorize the City to acquire and operate municipal telecommunications utility facilities and
services (a “broadband system”), and the Enterprise has undertaken the establishment and
operation of a broadband system through the Electric Utility (“Fort Collins Connexion”); and
WHEREAS, to provide a reliable and cost-effective broadband system, the City desires to
collaborate with other governmental entities to leverage resources, including connections with
regional and national telecommunication networks, for the benefit of the City's residents and Fort
Collins Connexion ratepayers; and
WHEREAS, the Colorado Department of Transportation (CDOT) built and maintains a
fiber optic network to manage State highways which contains unused “dark” fiber and facilities
located along Interstate Highway 25 (I-25), adjacent to the City’s boundaries; and
WHEREAS, Fort Collins Connexion staff has negotiated access and data transport rights
through third party telecommunications facilities, and needs cost-effective means to access those
facilities and services in Denver; and
WHEREAS, the parties recently negotiated a proposed intergovernmental dark fiber lease
agreement to share capital improvements by CDOT and provide Fort Collins Connexion transport
service on CDOT facilities along I-25, a copy of which is attached hereto an Exhibit A (the “IGA”)
for up to twenty years; and
WHEREAS, under the IGA, CDOT will dedicate two fiber optic strands for Fort Collins
Connexion and other governmental service purposes, including connecting the City’s broadband
system with a regional telecommunication facility in Denver, Colorado; and
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WHEREAS, as Colorado governmental entities, the City, acting through the Enterprise,
and the State of Colorado are authorized, pursuant to Colorado Revised Statutes Section 29-1-203,
to cooperate or contract with one another to acquire or provide any government function, service,
or facility lawfully authorized to each; and
WHEREAS, the long-term license contract authorized under this Ordinance will permit
Fort Collins Connexion to connect its subscribers to regional and national telecommunication
networks, maintain a reliable broadband system, and will be payable solely from revenues of Fort
Collins Connexion; and
WHEREAS, the Enterprise Board’s adoption of this Ordinance is in the exercise of its
authority as described above to approve and enter into contracts like the Authorized Obligations
to enable Fort Collins Connexion to offer video services to its customers.
WHEREAS, the City Council, acting ex officio as the Board pursuant to Section 19.3(b),
has determined the IGA between the Enterprise and CDOT is in the best interests of the City, its
citizens, and ratepayers to accomplish the purposes set forth therein.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF THE ELECTRIC
UTILITY ENTERPRISE OF THE CITY OF FORT COLLINS as follows:
Section 1. That the Enterprise Board hereby makes and adopts the determinations
and findings contained in the recitals set forth above. In addition, the Mayor, as the Enterprise’s
president, and the City Clerk, as the Enterprise’s secretary, are both authorized to sign this
Ordinance in their respective capacities.
Section 2. That the Enterprise Board hereby finds it is in the best interests of the
Enterprise, the Electric Utility and the City to enter into the IGA with the Colorado Department of
Transportation.
Section 3. That the Enterprise Board hereby approves the IGA, and the Mayor is
authorized, in consultation with the City Manager and City Attorney and consistent with this
Ordinance, to finalize and execute the IGA, as the Enterprise’s president, in substantially the form
attached hereto as Exhibit “A”.
Section 4. That in addition, the City Manager is authorized, during the term of the IGA
and, in consultation with the City Attorney, to approve and execute such amendments to the IGA
as the City Manager determines to be reasonably necessary and appropriate to: (a) protect the
City’s interests or to effectuate the purposes of this Ordinance and (b) provide a benefit to the City;
provided that any additional financial obligation is conditioned upon funds having been already
appropriated and approved by the City Council or conditioned upon such appropriation.
Section 5. That the IGA shall not constitute a debt or obligation of the City and shall
be payable solely from the revenues of Fort Collins Connexion.
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Introduced, considered favorably on first reading, and ordered published this 21st day of
April, A.D. 2020, and to be presented for final passage on the 5th day of May, A.D. 2020.
__________________________________
President
ATTEST:
_______________________________
Secretary
Passed and adopted on final reading on the 5th day of May, A.D. 2020.
__________________________________
President
ATTEST:
_______________________________
Secretary
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Exhibit A
STATE OF COLORADO
INTERGOVERNMENTAL AGREEMENT
(NON-EXPENDITURE)
COVER PAGE
State Agency
Colorado Department of Transportation (CDOT)
Contract Number
20-HAA-XE-03001
Contractor
City of Fort Collins Electric Utility Enterprise, dba Fort Collins
Connexion (Connexion or Contractor)
Contract Performance Beginning Date
Effective Date
Initial Contract Expiration Date
Twenty years from the Effective Date.
Contract Authority
§24-110-101 et seq., C.R.S.
Contract Purpose
CDOT to lease Connexion two existing dark single-mode fiber optics telecommunication strands located within the public
rights of way along Interstate 25 from Milepost 268.2 to Milepost 209.2 and fiber strands extending further into Denver,
terminating at the super vault outside of 910 15th Street, Denver, CO.
Exhibits and Order of Precedence
The following Exhibits and attachments are included with this Contract:
1. Exhibit A – Statement of Work
2. Exhibit B – Sample Option Letter
In the event of a conflict or inconsistency between this Contract and any Exhibit or attachment, such conflict or inconsistency
shall be resolved by reference to the documents in the following order of priority:
1. Colorado Special Provisions in §18 of the main body of this Contract.
2. The provisions of the other sections of the main body of this Contract.
3. Exhibit A, Statement of Work.
4. Exhibit B, Sample Option Letter.
Principal Representatives
For the State: For Contractor:
Bob Fifer
Colorado Department of Transportation
Division of Maintenance & Operations
John Robbins
City of Fort Collins Electric Utility Enterprise dba Fort
Collins Connection
425 C Corporate Circle 215 N. Mason Street
Golden, CO 80401 Fort Collins, CO 80524
bob.fifer@state.co.us jrobbins@fcgov.com
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Exhibit A
SIGNATURE PAGE
THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT
Each person signing this Contract represents and warrants that the signer is duly authorized to execute this Contract and to
bind the Party authorizing such signature.
CONTRACTOR
City of Fort Collins Electric Utility Enterprise, dba Fort
Collins Connexion
______________________________________________
By: _________________, Enterprise Board President
Date: _________________________
STATE OF COLORADO
Jared S. Polis, Governor
Department of Transportation
Shoshana M. Lew, Executive Director
______________________________________________
By: Stephen Harelson, P.E., Chief Engineer
Effective Date: _________________________
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Exhibit A
TABLE OF CONTENTS
COVER PAGE .......................................................................................................................... 1
SIGNATURE PAGE ................................................................................................................. 2
1. PARTIES ................................................................................................................................... 3
2. TERM AND EFFECTIVE DATE ............................................................................................. 3
3. DEFINITIONS .......................................................................................................................... 4
4. STATEMENT OF WORK ........................................................................................................ 6
5. PAYMENTS TO CONTRACTOR ........................................................................................... 6
6. REPORTING - NOTIFICATION ............................................................................................. 6
7. CONTRACTOR RECORDS ..................................................................................................... 6
8. [RESERVED] ............................................................................................................................ 7
9. CONFLICTS OF INTEREST.................................................................................................... 7
10. INSURANCE ............................................................................................................................ 7
11. BREACH OF CONTRACT ...................................................................................................... 8
12. REMEDIES ............................................................................................................................... 9
13. DISPUTE RESOLUTION ....................................................................................................... 10
14. NOTICES AND REPRESENTATIVES ................................................................................. 10
15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION ........................................ 11
16. [RESERVED]..........................................................................................................................12
17. GENERAL PROVISIONS ...................................................................................................... 11
18. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) ....................... 14
1. PARTIES
This Contract is entered into by and between Contractor named on the Cover Page for this Contract
(the “Contractor”), and the STATE OF COLORADO acting by and through the State Agency
named on the Cover Page for this Contract (the “State”). Contractor and the State agree to the terms
and conditions in this Contract.
2. TERM AND EFFECTIVE DATE
A. Effective Date
This Contract shall not be valid or enforceable until the Effective Date. The State shall not
be bound by any provision of this Contract before the Effective Date.
B. Initial Term
The Parties’ respective performances under this Contract shall commence on the Contract
Performance Beginning Date shown on the Cover Page for this Contract and shall terminate
on the Initial Contract Expiration Date shown on the Cover Page for this Contract (the “Initial
Term”) unless sooner terminated or further extended in accordance with the terms of this
Contract.
C. Extension Terms - State’s Option
Subject to mutual agreement the State, at its discretion, shall have the option to extend the
performance under this Contract beyond the Initial Term for a period, or for successive
periods, of ten years or less at the same rates and under the same terms specified in the
Contract (each such period an “Extension Term”). In order to exercise this option, the State
shall provide written notice to Contractor in a form substantially equivalent to the Sample
Option Letter attached to this Contract. The total duration of this Contract, including the
exercise of any options to extend, shall not exceed forty years from its Effective Date.
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Exhibit A
D. Early Termination in the Public Interest
The State is entering into this Contract to serve the public interest of the State of Colorado as
determined by its Governor, General Assembly, or Courts. If this Contract ceases to further
the public interest of the State, the State, in its discretion, may terminate this Contract in
whole or in part. A determination that this Contract should be terminated in the public interest
shall not be equivalent to a State right to terminate for convenience. This subsection shall not
apply to a termination of this Contract by the State for breach by Contractor, which shall be
governed by §12.A.i.
i. Method and Content
The State shall notify Contractor of such termination in accordance with §14. The
notice shall specify the effective date of the termination and whether it affects all or a
portion of this Contract, and shall include, to the extent practicable, the public interest
justification for the termination.
ii. Obligations and Rights
Upon receipt of a termination notice for termination in the public interest, Contractor
shall be subject to the rights and obligations set forth in §12.A.i.a.
iii. To the extent this Agreement or any provision in it constitutes a multiple fiscal year
debt or financial obligation of the Contractor, it shall be subject to annual appropriation
by the Contractor’s City Council as required in Article V, Section 8(b) of the City of
Fort Collins Charter, City Code Section 8-186, and Article X, Section 20 of the
Colorado Constitution. The Contractor shall have no obligation to continue this
Agreement in any fiscal year for which no such supporting appropriation has been
made.
3. DEFINITIONS
The following terms shall be construed and interpreted as follows:
A. “Breach of Contract” means the failure of a Party to perform any of its obligations in
accordance with this Contract, in whole or in part or in a timely or satisfactory manner. If
Contractor is debarred or suspended under §24-109-105, C.R.S. at any time during the term
of this Contract, then such debarment or suspension shall constitute a breach.
B. “Business Day” means any day in which the State is open and conducting business, but shall
not include Saturday, Sunday or any day on which the State observes one of the holidays
listed in §24-11-101(1), C.R.S.
C. “Contract” means this agreement, including all attached Exhibits, all documents
incorporated by reference, all referenced statutes, rules and cited authorities, and any future
modifications thereto.
D. “Contractor Records” means any and all Contractor data, information, and records,
regardless of physical form, including, but not limited to, information subject to disclosure
under CORA and records of current or former users of public utility services delivered by
Contractor.
E. “CORA” means the Colorado Open Records Act, §§24-72-200.1, et. seq., C.R.S.
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Exhibit A
F. “Disaster” means a sudden event which causes severe damage including, but not limited to,
droughts, floods, hurricanes, tornadoes, earthquakes, fires, explosions, volcanoes,
windstorms, landslides or mudslides, riots, civil disorders or other catastrophes, except it
does not include economic dislocations
G. “Effective Date” means the date on which this Contract is approved and signed by the Chief
Engineer of the Colorado Department of Transportation or designee, as shown on the
Signature Page for this Contract.
H. “Exhibits” means the exhibits and attachments included with this Contract as shown on the
Cover Page for this Contract.
I. “Extension Term” means the time period defined in §2.C.
J. “Goods” means any movable material acquired, produced, or delivered by Contractor as set
forth in this Contract and shall include any movable material acquired, produced, or delivered
by Contractor in connection with the Services.
K. “Incident” means any accidental or deliberate event that results in or constitutes an imminent
threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of
any communications or information resources of the State, which are included as part of the
Work, as described in §§24-37.5-401 et. seq. C.R.S. Incidents include, without limitation (i)
successful attempts to gain unauthorized access to a State system or State Information
regardless of where such information is located; (ii) unwanted disruption or denial of service;
(iii) the unauthorized use of a State system for the processing or storage of data; or (iv)
changes to State system hardware, firmware, or software characteristics without the State’s
knowledge, instruction, or consent.”
L. “Initial Term” means the time period defined in §2.B.
M. “Party” means the State or Contractor, and “Parties” means both the State and Contractor.
N. “Services” means the services to be performed by Contractor as set forth in this Contract,
and shall include any services to be rendered by Contractor in connection with the Goods.
O. “State Fiscal Rules” means that fiscal rules promulgated by the Colorado State Controller
pursuant to §24-30-202(13)(a), C.R.S.
P. “State Fiscal Year” means a 12-month period beginning on July 1 of each calendar year and
ending on June 30 of the following calendar year. If a single calendar year follows the term,
then it means the State Fiscal Year ending in that calendar year.
Q. “State Records” means any and all State data, information, and records, regardless of
physical form, including, but not limited to, information subject to disclosure under CORA.
R. “Subcontractor” means third-parties, if any, engaged by Contractor to aid in performance
of the Work.
S. “Work” means the Goods delivered and Services performed pursuant to this Contract.
T. “Work Product” means the tangible and intangible results of the Work, whether finished or
unfinished, including drafts. Work Product includes, but is not limited to, documents, text,
software (including source code), research, reports, proposals, specifications, plans, notes,
studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys,
maps, materials, ideas, concepts, know-how, and any other results of the Work. “Work
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Exhibit A
Product” does not include any material that was developed prior to the Effective Date that is
used, without modification, in the performance of the Work.
Any other term used in this Contract that is defined in an Exhibit shall be construed and interpreted
as defined in that Exhibit.
4. STATEMENT OF WORK
Contractor shall complete the Work as described in this Contract and in accordance with the
provisions of Exhibit A. This Contract involves an exchange of resources, goods, or services that
shall not result in the expenditure of funds by the State. The State shall have no liability to
compensate Contractor for the delivery of any Goods or the performance of any Services under
this Contract. The Parties shall ensure that all Contractor Records, State Records, and Work
Product in the possession of the Parties are protected and handled in accordance with the
requirements of this Contract, including the requirements of any Exhibits hereto, at all times.
5. PAYMENTS TO CONTRACTOR
A. The exchange of resources, goods, or services under this Contract shall not result in the
expenditure of funds by the State. The State shall have no payment obligations to Contractor
under this Contract.
B. Contractor shall make payments to the State in accordance with the provisions of Exhibit A.
6. REPORTING - NOTIFICATION
A. Litigation Reporting
If Contractor is served with a pleading or other document in connection with an action before
a court or other administrative decision making body, and such pleading or document relates
to this Contract or may affect Contractor’s ability to perform its obligations under this
Contract, Contractor shall, within 10 days after being served, notify the State of such action
and deliver copies of such pleading or document to the State’s principal representative
identified on the Cover Page for this Contract.
7. CONTRACTOR RECORDS
The Contractor shall provide records in accordance with this Section 7, if applicable, for any
services other than the leasing of dark fiber.
A. Maintenance
Contractor shall maintain a file of all documents, records, communications, notes and other
materials relating to the Work (the “Contractor Records”). Contractor Records shall include
all documents, records, communications, notes and other materials maintained by Contractor
that relate to any Work performed by Subcontractors, and Contractor shall maintain all
records related to the Work performed by Subcontractors required to ensure proper
performance of that Work. Contractor shall maintain Contractor Records until the last to
occur of: (i) the date three years after the date this Contract expires or is terminated, (ii) final
payment under this Contract is made, (iii) the resolution of any pending Contract matters, (iv)
if an audit is occurring, or Contractor has received notice that an audit is pending, the date
such audit is completed and its findings have been resolved, or (v) as set forth in Contractor’s
published record retention schedule (the “Record Retention Period”).
B. Inspection
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Exhibit A
Contractor shall permit the State to audit, inspect, examine, excerpt, copy and transcribe
Contractor Records during the Record Retention Period. Contractor shall make Contractor
Records available during normal business hours at Contractor’s office or place of business,
or at other mutually agreed upon times or locations, upon no fewer than two Business Days’
notice from the State, unless the State determines that a shorter period of notice, or no notice,
is necessary to protect the interests of the State.
C. Monitoring
The State, in its discretion, may monitor Contractor’s performance of its obligations under
this Contract using procedures as determined by the State. The State shall monitor
Contractor’s performance in a manner that does not unduly interfere with Contractor’s
performance of the Work.
D. Final Audit Report
Contractor shall promptly submit to the State a copy of any final audit report of an audit
performed on Contractor’s records that relates to or affects this Contract or the Work, whether
the audit is conducted by Contractor or a third party.
8. [RESERVED]
9. CONFLICTS OF INTEREST
A. Actual Conflicts of Interest
Contractor shall not engage in any business or activities, or maintain any relationships that
conflict in any way with the full performance of the obligations of Contractor under this
Contract. Such a conflict of interest would arise when a Contractor or Subcontractor’s
employee, officer or agent were to offer or provide any tangible personal benefit to an
employee of the State, or any member of his or her immediate family or his or her partner,
related to the award of, entry into or management or oversight of this Contract.
B. Apparent Conflicts of Interest
Contractor acknowledges that, with respect to this Contract, even the appearance of a conflict
of interest shall be harmful to the State’s interests. Absent the State’s prior written approval,
Contractor shall refrain from any practices, activities or relationships that reasonably appear
to be in conflict with the full performance of Contractor’s obligations under this Contract.
C. Disclosure to the State
If a conflict or the appearance of a conflict arises, or if Contractor is uncertain whether a
conflict or the appearance of a conflict has arisen, Contractor shall submit to the State a
disclosure statement setting forth the relevant details for the State’s consideration. Failure to
promptly submit a disclosure statement or to follow the State’s direction in regard to the
actual or apparent conflict constitutes a Breach of Contract.
10. INSURANCE
Contractor shall obtain and maintain insurance as specified in this section at all times during the
term of this Contract. All insurance policies required by this Contract that are not provided through
self-insurance shall be issued by insurance companies as approved by the State.
A. Contractor Insurance
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Exhibit A
The Contractor is a "public entity" within the meaning of the Colorado Governmental
Immunity Act, §24-10-101, et seq., C.R.S. (the “GIA”) and shall maintain at all times during
the term of this Contract such liability insurance, by commercial policy or self-insurance, as
is necessary to meet its liabilities under the GIA.
B. Additional Insured
The State shall be named as additional insured on all commercial general liability policies
(leases and construction contracts require additional insured coverage for completed
operations) required of Contractor.
C. Primacy of Coverage
Coverage required of Contractor shall be primary over any insurance or self-insurance
program carried by Contractor or the State.
D. Cancellation
All commercial insurance policies shall include provisions preventing cancellation or non-
renewal, except for cancellation based on non-payment of premiums, without at least 30 days
prior notice to Contractor and Contractor shall forward such notice to the State in accordance
with §14 within seven days of Contractor’s receipt of such notice.
E. Subrogation Waiver
All commercial insurance policies secured or maintained by Contractor in relation to this
Contract shall include clauses stating that each carrier shall waive all rights of recovery under
subrogation or otherwise against Contractor or the State, its agencies, institutions,
organizations, officers, agents, employees, and volunteers.
F. Certificates
For each commercial insurance plan provided by Contractor under this Contract, Contractor
shall provide to the State certificates evidencing Contractor’s insurance coverage required in
this Contract within seven Business Days following the Effective Date. Contractor shall
provide to the State certificates evidencing Subcontractor insurance coverage required under
this Contract within seven Business Days following the Effective Date, except that, if
Contractor’s subcontract is not in effect as of the Effective Date, Contractor shall provide to
the State certificates showing Subcontractor insurance coverage required under this Contract
within seven Business Days following Contractor’s execution of the subcontract. No later
than 15 days before the expiration date of Contractor’s or any Subcontractor’s coverage,
Contractor shall deliver to the State certificates of insurance evidencing renewals of coverage.
At any other time during the term of this Contract, upon request by the State, Contractor shall,
within seven Business Days following the request by the State, supply to the State evidence
satisfactory to the State of compliance with the provisions of this §10.
11. BREACH OF CONTRACT
In the event of a Breach of Contract, the aggrieved Party shall give written notice of breach to the
other Party. If the notified Party does not cure the Breach of Contract, at its sole expense, within
30 days after the delivery of written notice, the Party may exercise any of the remedies as described
in §12 for that Party. Notwithstanding any provision of this Contract to the contrary, the State, in
its discretion, need not provide notice or a cure period and may immediately terminate this Contract
in whole or in part or institute any other remedy in this Contract in order to protect the public
interest of the State; or if Contractor is debarred or suspended under §24-109-105, C.R.S., the State,
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in its discretion, need not provide notice or cure period and may terminate this Contract in whole
or in part or institute any other remedy in this Contract as of the date that the debarment or
suspension takes effect.
12. REMEDIES
A. State’s Remedies
If Contractor is in breach under any provision of this Contract and fails to cure such breach,
the State, following the notice and cure period set forth in §11, shall have all of the remedies
listed in this section in addition to all other remedies set forth in this Contract or at law. The
State may exercise any or all of the remedies available to it, in its discretion, concurrently or
consecutively.
i. Termination for Breach
In the event of Contractor’s uncured breach, the State may terminate this entire Contract
or any part of this Contract. Contractor shall continue performance of this Contract to
the extent not terminated, if any.
a. Obligations and Rights
To the extent specified in any termination notice, Contractor shall not incur further
obligations or render further performance past the effective date of such notice,
and shall terminate outstanding orders and subcontracts with third parties.
However, Contractor shall complete and deliver to the State all Work not
cancelled by the termination notice, and may incur obligations as necessary to do
so within this Contract’s terms. At the request of the State, Contractor shall assign
to the State all of Contractor's rights, title, and interest in and to such terminated
orders or subcontracts. Upon termination, Contractor shall take timely, reasonable
and necessary action to protect and preserve property in the possession of
Contractor but in which the State has an interest. At the State’s request, Contractor
shall return materials owned by the State in Contractor’s possession at the time of
any termination. Contractor shall deliver all completed Work Product and all
Work Product that was in the process of completion to the State at the State’s
request.
b. Damages and Withholding
Notwithstanding any other remedial action by the State, Contractor shall remain
liable to the State for any damages sustained by the State in connection with any
breach by Contractor.
ii. Remedies Not Involving Termination
This Section 11 A. ii only applies in the event Contractor engages with the State for any
services other than leasing dark fiber.
The State, in its discretion, may exercise one or more of the following additional
remedies:
a. Suspend Performance
Suspend Contractor’s performance with respect to all or any portion of the Work
pending corrective action as specified by the State without entitling Contractor to
an adjustment in the performance schedule. Contractor shall promptly cease
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performing Work in accordance with the State’s directive, and the State shall not
be liable for costs incurred by Contractor after the suspension of performance.
b. Removal
Demand immediate removal of any of Contractor’s employees, agents, or
Subcontractors from the Work whom the State deems incompetent, careless,
insubordinate, unsuitable, or otherwise unacceptable or whose continued relation
to this Contract is deemed by the State to be contrary to the public interest or the
State’s best interest.
c. Intellectual Property
If any Work infringes, or if the State in its sole discretion determines that any
Work is likely to infringe, a patent, copyright, trademark, trade secret or other
intellectual property right, Contractor shall, as approved by the State (i) secure
that right to use such Work for the State and Contractor; (ii) replace the Work
with noninfringing Work or modify the Work so that it becomes noninfringing;
or, (iii) remove any infringing Work and refund the amount paid for such Work
to the State.
B. Contractor’s Remedies
If the State is in breach of any provision of this Contract and does not cure such breach,
Contractor, following the notice and cure period in §11 and the dispute resolution process in
§13 shall have all remedies available at law and equity.
13. DISPUTE RESOLUTION
A. Initial Resolution
Except as herein specifically provided otherwise, disputes concerning the performance of this
Contract which cannot be resolved by the designated Contract representatives shall be
referred in writing to a senior departmental management staff member designated by the State
and a senior manager designated by Contractor for resolution.
B. Resolution of Controversies
If the initial resolution described in §13.A fails to resolve the dispute within 10 Business
Days, Contractor shall submit any alleged breach of this Contract by the State to the
Procurement Official of the State Agency named on the Cover Page of this Contract as
described in §24-101-301(30), C.R.S. for resolution in accordance with the provisions of
§§24-106-109, and 24-109-101.1 through 24-109-505, C.R.S., (the “Resolution Statutes”),
except that if Contractor wishes to challenge any decision rendered by the Procurement
Official, Contractor’s challenge shall be an appeal to the executive director of the Department
of Personnel and Administration, or their delegate, under the Resolution Statutes before
Contractor pursues any further action as permitted by such statutes. Except as otherwise
stated in this Section, all requirements of the Resolution Statutes shall apply including,
without limitation, time limitations.
14. NOTICES AND REPRESENTATIVES
Each individual identified as a Principal Representative on the Cover Page for this Contract shall
be the principal representative of the designating Party. All notices required or permitted to be
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given under this Contract shall be in writing, and shall be delivered (A) by hand with receipt
required, (B) by certified or registered mail to such Party’s principal representative at the address
set forth below or (C) as an email with read receipt requested to the principal representative at the
email address, if any, set forth on the Cover Page for this Contract. If a Party delivers a notice to
another through email and the email is undeliverable, then, unless the Party has been provided with
an alternate email contact, the Party delivering the notice shall deliver the notice by hand with
receipt required or by certified or registered mail to such Party’s principal representative at the
address set forth on the Cover Page for this Contract. Either Party may change its principal
representative or principal representative contact information, or may designate specific other
individuals to receive certain types of notices in addition to or in lieu of a principal representative
by notice submitted in accordance with this section without a formal amendment to this Contract.
15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION
A. Work Product
Contractor assigns to the State and its successors and assigns, the entire right, title, and
interest in and to all causes of action, either in law or in equity, for past, present, or future
infringement of intellectual property rights related to the Work Product and all works based
on, derived from, or incorporating the Work Product. Whether or not Contractor is under
contract with the State at the time, Contractor shall execute applications, assignments, and
other documents, and shall render all other reasonable assistance requested by the State, to
enable the State to secure patents, copyrights, licenses and other intellectual property rights
related to the Work Product. To the extent that Work Product would fall under the definition
of “works made for hire” under 17 U.S.C.S. §101, the Parties intend the Work Product to be
a work made for hire.
B. Exclusive Property of the State
Except to the extent specifically provided elsewhere in this Contract, any pre-existing State
Records, State software, research, reports, studies, photographs, negatives or other
documents, drawings, models, materials, data and information shall be the exclusive property
of the State (collectively, “State Materials”). Contractor shall not use, willingly allow, cause
or permit Work Product or State Materials to be used for any purpose other than the
performance of Contractor’s obligations in this Contract without the prior written consent of
the State. Upon termination of this Contract for any reason, Contractor shall provide all
Work Product and State Materials to the State in a form and manner as directed by the State.
C. Exclusive Property of Contractor
Contractor retains the exclusive rights, title, and ownership to any and all pre-existing
materials owned or licensed to Contractor including, but not limited to, all pre-existing
software, licensed products, associated source code, machine code, text images, audio and/or
video, and third-party materials, delivered by Contractor under the Contract, whether
incorporated in a Deliverable or necessary to use a Deliverable (collectively, “Contractor
Property”). Contractor Property shall be licensed to the State as set forth in this Contract or a
State approved license agreement: (i) entered into as exhibits to this Contract; (ii) obtained
by the State from the applicable third-party vendor; or (iii) in the case of open source
software, the license terms set forth in the applicable open source license agreement.
16. [RESERVED]
17. GENERAL PROVISIONS
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A. Assignment
Contractor’s rights and obligations under this Contract are personal and may not be
transferred or assigned without the prior, written consent of the State. Any attempt at
assignment or transfer without such consent shall be void. Any assignment or transfer of
Contractor’s rights and obligations approved by the State shall be subject to the provisions of
this Contract
B. Subcontracts
Contractor shall not enter into any subcontract in connection with its obligations under this
Contract without the prior, written approval of the State. Contractor shall submit to the State
a copy of each such subcontract upon request by the State. All subcontracts entered into by
Contractor in connection with this Contract shall comply with all applicable federal and state
laws and regulations, shall provide that they are governed by the laws of the State of
Colorado, and shall be subject to all provisions of this Contract.
C. Binding Effect
Except as otherwise provided in §17.A, all provisions of this Contract, including the benefits
and burdens, shall extend to and be binding upon the Parties’ respective successors and
assigns.
D. Authority
Each Party represents and warrants to the other that the execution and delivery of this
Contract and the performance of such Party’s obligations have been duly authorized.
E. Captions and References
The captions and headings in this Contract are for convenience of reference only, and shall
not be used to interpret, define, or limit its provisions. All references in this Contract to
sections (whether spelled out or using the § symbol), subsections, exhibits or other
attachments, are references to sections, subsections, exhibits or other attachments contained
herein or incorporated as a part hereof, unless otherwise noted.
F. Counterparts
This Contract may be executed in multiple, identical, original counterparts, each of which
shall be deemed to be an original, but all of which, taken together, shall constitute one and
the same agreement.
G. Entire Understanding
This Contract represents the complete integration of all understandings between the Parties
related to the Work, and all prior representations and understandings related to the Work, oral
or written, are merged into this Contract. Prior or contemporaneous additions, deletions, or
other changes to this Contract shall not have any force or effect whatsoever, unless embodied
herein.
H. Digital Signatures
If any signatory signs this agreement using a digital signature in accordance with the
Colorado State Controller Contract, Grant and Purchase Order Policies regarding the use of
digital signatures issued under the State Fiscal Rules, then any agreement or consent to use
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digital signatures within the electronic system through which that signatory signed shall be
incorporated into this Contract by reference.
I. Modification
Except as otherwise provided in this Contract, any modification to this Contract shall only be
effective if agreed to in a formal amendment to this Contract, properly executed and approved
in accordance with applicable Colorado State law and State Fiscal Rules, and Contractor’s
municipal charter. Modifications permitted under this Contract, other than contract
amendments, shall conform to the policies issued by the Colorado State Controller.
J. Statutes, Regulations, Fiscal Rules, and Other Authority.
Any reference in this Contract to a statute, regulation, State Fiscal Rule, fiscal policy or other
authority shall be interpreted to refer to such authority then current, as may have been
changed or amended since the Effective Date of this Contract.
K. Severability
The invalidity or unenforceability of any provision of this Contract shall not affect the validity
or enforceability of any other provision of this Contract, which shall remain in full force and
effect, provided that the Parties can continue to perform their obligations under this Contract
in accordance with the intent of this Contract.
L. Survival of Certain Contract Terms
Any provision of this Contract that imposes an obligation on a Party after termination or
expiration of the Contract shall survive the termination or expiration of this Contract and
shall be enforceable by the other Party.
M. Taxes
The Parties as individually each is exempt from federal excise taxes under I.R.C. Chapter 32
(26 U.S.C., Subtitle D, Ch. 32) (Federal Excise Tax Exemption Certificate of Registry No.
84-730123K) and from State and local government sales and use taxes under §§39-26-704(1),
et seq., C.R.S. (Colorado Sales Tax Exemption Identification Number 98-02565). Neither
Party shall not be liable for the payment of any excise, sales, or use taxes, regardless of
whether any political subdivision of the state imposes such taxes on the other Party.
N. Third Party Beneficiaries
Except for the Parties’ respective successors and assigns described in §17.A, this Contract
does not and is not intended to confer any rights or remedies upon any person or entity other
than the Parties. Enforcement of this Contract and all rights and obligations hereunder are
reserved solely to the Parties. Any services or benefits which third parties receive as a result
of this Contract are incidental to this Contract, and do not create any rights for such third
parties.
O. Waiver
A Party’s failure or delay in exercising any right, power, or privilege under this Contract,
whether explicit or by lack of enforcement, shall not operate as a waiver, nor shall any single
or partial exercise of any right, power, or privilege preclude any other or further exercise of
such right, power, or privilege.
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P. CORA Disclosure
To the extent not prohibited by federal law, this Contract and the performance measures and
standards required under §24-106-107, C.R.S., if any, are subject to public release through
the CORA.
Q. Standard and Manner of Performance
Contractor shall perform its obligations under this Contract in accordance with the highest
standards of care, skill and diligence in Contractor’s industry, trade, or profession.
R. Licenses, Permits, and Other Authorizations.
Contractor shall secure, prior to the Effective Date, and maintain at all times during the term
of this Contract, at its sole expense, all licenses, certifications, permits, and other
authorizations required to perform its obligations under this Contract, and shall ensure that
all employees, agents and Subcontractors secure and maintain at all times during the term of
their employment, agency or subcontract, all license, certifications, permits and other
authorizations required to perform their obligations in relation to this Contract.
18. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)
These Special Provisions apply to all contracts except where noted in italics.
A. GOVERNMENTAL IMMUNITY.
Liability for claims for injuries to persons or property arising from the negligence of either
Party, its departments, boards, commissions committees, bureaus, offices, employees and
officials shall be controlled and limited by the provisions of the Colorado Governmental
Immunity Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI,
Ch. 171 and 28 U.S.C. 1346(b), and each Party’s risk management statutes, §§24-30-1501,
et seq. C.R.S. No term or condition of this Contract shall be construed or interpreted as a
waiver, express or implied, of any of the immunities, rights, benefits, protections, or other
provisions, contained in these statutes.
B. INDEPENDENT CONTRACTOR
Contractor shall perform its duties hereunder as an independent contractor and not as an
employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to
be an agent or employee of the State. Contractor shall not have authorization, express or
implied, to bind the State to any agreement, liability or understanding, except as expressly
set forth herein. Contractor and its employees and agents are not entitled to
unemployment insurance or workers compensation benefits through the State and the
State shall not pay for or otherwise provide such coverage for Contractor or any of its
agents or employees. Contractor shall pay when due all applicable employment taxes
and income taxes and local head taxes incurred pursuant to this Contract. Contractor
shall (i) provide and keep in force workers' compensation and unemployment
compensation insurance in the amounts required by law, (ii) provide proof thereof when
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requested by the State, and (iii) be solely responsible for its acts and those of its
employees and agents.
C. COMPLIANCE WITH LAW.
Contractor shall comply with all applicable federal and State laws, rules, and regulations in
effect or hereafter established, including, without limitation, laws applicable to
discrimination and unfair employment practices.
D. CHOICE OF LAW, JURISDICTION, AND VENUE.
Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the
interpretation, execution, and enforcement of this Contract. Any provision included or
incorporated herein by reference which conflicts with said laws, rules, and regulations shall
be null and void. All suits or actions related to this Contract shall be filed and proceedings
held in the State of Colorado and exclusive venue shall be in the City and County of Denver.
E. PROHIBITED TERMS.
Any term included in this Contract that requires the State to indemnify or hold Contractor
harmless; requires the State to agree to binding arbitration; limits Contractor’s liability for
damages resulting from death, bodily injury, or damage to tangible property; or that conflicts
with this provision in any way shall be void ab initio. Nothing in this Contract shall be
construed as a waiver of any provision of §24-106-109 C.R.S. Any term included in this
Contract that limits Contractor’s liability that is not void under this section shall apply only
in excess of any insurance to be maintained under this Contract, and no insurance policy shall
be interpreted as being subject to any limitations of liability of this Contract.
F. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and
24-50-507, C.R.S.
The signatories aver that to their knowledge, no employee of the State has any personal or
beneficial interest whatsoever in the service or property described in this Contract. Contractor
has no interest and shall not acquire any interest, direct or indirect, that would conflict in any
manner or degree with the performance of Contractor’s services and Contractor shall not
employ any person having such known interests.
THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY
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EXHIBIT A, STATEMENT OF WORK
City of Fort Collins Electric Utility Enterprise, dba Fort Collins Connexion (“Connexion”)
CDOT Dark Fiber Lease
1. Contract Description
a. Colorado Department of Transportation (CDOT) owns and operates a fiber optic
telecommunications backbone located within the public rights of way (ROW) along
Interstate 25 (I-25) from Milepost 268.2 at Prospect Road to Milepost 209.2 near 6th
Avenue and fiber strands extending further into Denver terminating at the super vault
outside of 910 15
th
Street, Denver, CO. Connexion desires to lease two (2) existing dark
single-mode fiber optics telecommunication strands along the corridor from CDOT.
2. Connexion’s Responsibilities
a. Connexion shall procure, provide, install and maintain handholes at the I-25 and Prospect
Road (A location) splice point to access the leased dark fiber strands. After infrastructure
is in place and ready for fiber splice work, Connexion shall submit written request for
splice work to CDOT Intelligent Transportation Systems (ITS) Network Operations
Center.
b. Connexion is responsible for all fees and access into the 910 15th Street facilities (Z
location) from the CDOT demarcation.
c. Connexion is responsible for any networking designs and implementation as it is
associated to the optronics to extend between A location and Z locations.
d. Connexion shall perform all applicable maintenance related activities, on Connexion
owned handhold and related Connexion owned infrastructure including required
relocations.
e. Connexion shall apply for and obtain the applicable CDOT Region Utility Permit and
comply with all applicable provisions, terms and conditions of the applicable CDOT
Region Utility Permit.
f. Connexion shall apply for and obtain the applicable CDOT Region Maintenance Permit
and comply with all applicable provisions, terms and conditions of the applicable CDOT
Region Maintenance Permit.
g. Connexion shall pay an annual fee as shown in Attachment A and further described below
in Section 5. Payment.
h. Connexion shall provide contact information list for their entity’s staff that are
responsible for managing the fiber infrastructure including emergency contacts when
Emergency and Extraordinary Repairs are necessary.
i. Within sixty (60) days of termination of the Agreement for any reason, non-renewal, or
expiration, Connexion may remove any equipment or other appurtenances, but
Connexion shall not excavate or disturb the topsoil in removal thereof, and all conduit
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and fiver installed in CDOT’s right of way(s) shall be abandoned in place and become
the sole property of CDOT.
3. CDOT Responsibilities
a. CDOT shall provide 2 strands of dark fiber along I-25 from ProspectRoad, Fort Collins
to 6th Avenue, Denver and through Denver to 910 15th Street entrance vault or other
designated entrance demarcation, for an annual lease fee as shown in Attachment A.
b. CDOT shall identify and assign leased strands for Connexion use within 90 days of
execution of this Agreement.
c. CDOT shall conduct all splice work on CDOT owned facilities.
d. Issue the applicable CDOT Region Utility Permit(s) within forty-five (45) days of
receiving the Connexion’s properly completed and compliant application including all
other required federal, state and/or local permits provided that no mitigating
circumstances, requirements, clearances or other issues must be addressed thereby
making issuance of said CDOT Region Utility Permit(s) not possible within forty-five
(45) days.
e. Issue the applicable CDOT Region Maintenance Permit(s) within forty-five (45) days of
receiving Company’s properly completed and compliant application provided that no
mitigating circumstances or other issues must be addressed thereby making issuance of
said CDOT Region Maintenance Permit(s) not possible within forty-five (45) days.
f. CDOT shall perform all applicable maintenance related activities on the CDOT owned
fiber optic cables, including:
i. Routine Preventative Maintenance: Routine Preventative Maintenance, as
applicable, shall at a minimum consist of, but not be limited to, periodic inspection
of the project facility, including reinstallation of knocked down fiber location
markers and replacement of damaged or missing fiber location markers, clearing
and cleaning debris from the facility pull boxes so that they are visible and
performing locates within three (3) business days from receipt of UNCC notice
unless Force Majeure, severe weather, highway closures or extreme safety
hazards exist. CDOT shall supply materials such as, but not limited to, fiber
location markers at its own expense and shall perform all necessary Route
Preventative Maintenance at its own expense and shall not seek reimbursement
for any and all costs associated with Route Preventative Maintenance performed.
ii. Registering the Project Facility: CDOT shall register or cause to be registered the
project facility. CDOT shall be solely responsible to pay all costs to repair and/or
replace the project facility due only to failure to perform locates, or to perform
locates in a timely manner, resulting in damage and/or cutting or severing the fiber
infrastructure in the project facility. CDOT shall not be responsible to register or
cause to be registered any lateral conduit or fiber optic cable the other party
installs, neither shall CDOT be responsible to pay for any costs to repair and/or
replace any lateral conduit or fiber optic cable installed by the other party.
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iii. Emergency and Extraordinary Repairs: Emergency and Extraordinary Repairs
shall mean repairs required as a result of the fiber optic cables in the project
facility have been damaged, cut, or severed and repairs required as a result of pull
boxes being crushed or damaged. CDOT shall perform and be solely responsible
to pay for all necessary Emergency and Extraordinary Repairs including splicing
and reconnecting of the fibers in the project facility. CDOT’s standard for restoral
of outages and damages are best effort.
iv. Scheduled Maintenance: CDOT may need to conduct work that requires a
scheduled outage of their fiber optic cable. In the event of a scheduled outage
CDOT shall provide 3 days notice for any scheduled outage not to exceed 8 hours
unless it is an emergency repair.
v. Notification: In the event that Emergency and Extraordinary Repairs are
performed, the parties shall notify each other as soon as is reasonable and
practicable, and shall make reasonable effort to notify each other while such
Emergency and Extraordinary Repair is in progress. Notification shall include, to
the extent practicable, the nature, location and duration of the Emergency and
Extraordinary Repair. A telephone call followed by an email with an electronic
receipt shall constitute acceptable notification.
vi. Entering the Parties Pull Boxes: For safety and security reasons CDOT, including
but not limited to, CDOT’s employees, sub-contractors, agents, entities, affiliates,
etc. shall NOT enter Connexion’s labeled pull boxes, vaults and/or manholes
without receiving written permission. For safety and security reasons Connexion
including but not limited to, Connexion’s employees, sub-contractors, agents,
entities, affiliates, etc. shall NOT enter CDOT’s pull boxes, vaults and/or
manholes without receiving written permission. Written permission shall be
acceptable in the form of email with an electronic receipt, except where entry is
necessary to perform Emergency and Extraordinary Repairs.
vii. Loss of Use: Either Party’s loss of use of the Project Facility shall not entitle such
Party to any damages or loss from the other Party, in any manner whatsoever, for
loss of use, which loss of use could be attributed, but not limited to, as a result of
any Routine Preventative Maintenance, Registering the Project Facility with
UNCC, Emergency and Extraordinary Repairs or any other activity described in
this same Section or any other unforeseen circumstance that may result in such
loss of use, and such loss of use does not relieve either Party from any obligations
assumed by this Agreement, or from complete and proper fulfillment of the terms
and conditions of this Agreement, neither does it entitle either Party to any
compensation for damages or loss from the other Party, in any manner
whatsoever, for such loss of use.
4. Relocation: Each Party recognizes that from time to time due to highway and/or transportation
projects in the CDOT ROW, it may become necessary to relocate either a portion, or all, of the
infrastructure installed as part of the properly executed Agreement. If such relocation becomes
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necessary for whatever reason, CDOT shall be solely responsible for all costs incurred to relocate
all CDOT infrastructure, except that CDOT shall not be responsible for any costs incurred to
relocate all Connexion’s infrastructure. To accomplish relocation of Connexion’s infrastructure
for which Connexion is solely and entirely responsible, Connexion shall have the following two
(2) options:
a. Hire a contractor to relocate Connexion’s infrastructure in accordance with CDOT
construction plans and schedules. Connexion shall direct such contractor to coordinate
with the contractor CDOT hires to perform construction and relocation of the CDOT
infrastructure to ensure that the Connexion’s infrastructure is relocated in a coordinated
manner and that the project is successfully completed.
b. Authorize the contractor hired by CDOT to relocate Connexion’s infrastructure in
accordance with CDOT construction plans and schedules. Connexion shall be solely
responsible to pay for all cost associated to relocate Connexion’s infrastructure. Due to
the vested interest that Connexion has in fiber infrastructure installed in the CDOT ROW,
CDOT shall use commercially reasonable efforts to give Connexion notice of relocation
as soon as CDOT becomes aware of such relocation and CDOT shall keep Connexion
well informed throughout the entire relocation process, including but not limited to,
development of relocation project plans and schedules. Also, CDOT shall give Connexion
an official notice that identifies the schedule at least one hundred twenty (120) days prior
to the commencement of such relocation project.
5. Payment
a. Connexion shall make the first year’s Total Annual Lease Payment as shown in
Attachment A within thirty (30) days of the Effective Date. Connexion may pay the last
year’s Total Annual Lease Payment based on a prorated amount of the last year’s annual
lease payment corresponding from the anniversary of the Effective Date to the expiration
date of this Lease Agreement.
b. Connexion shall pay CDOT an annual lease payment for each subsequent year of the term
of this Lease Agreement within thirty (30) days of the anniversary of the Effective Date.
The annual lease payment shall automatically be increased by three percent (3%) each
year after the first year. Connexion shall pay the Total Annual Lease Payment amount for
each subsequent year of the Lease Agreement term as shown in Attachment A. Payments
shall be made payable to CDOT at:
Colorado Department of Transportation
C/o Accounting Receipts & Deposits
2829 West Howard Place
Denver, CO 80204
Or at such place as CDOT from time to time designates by notice. In the event CDOT
has not received the Total Annual Lease Payment hereunder within forty-five (45) days
after said payment becomes due and owing, a late charge of five percent (5%) of that
Total Annual Lease Payment shall be assessed to Connexion. If fees owed by
Connexion are 90 days or more past due, CDOT may disconnect leased dark fibers with
a minimum of thirty (30) days prior written notice.
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EXHIBIT A , ATTACHMENT A
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EXHIBIT B, SAMPLE OPTION LETTER
State Agency
Insert Department's or IHE's Full Legal Name
Option Letter Number
Insert the Option Number (e.g. "1" for the first option)
Contractor
Insert Contractor's Full Legal Name
Original Contract Number
Insert CMS number or Other Contract Number of the Original Contract
Current Contract Maximum Amount
Initial Term
Option Contract Number
Insert CMS number or Other Contract Number of this Option
State Fiscal Year 20xx $0.00
Extension Terms Contract Performance Beginning Date
State Fiscal Year 20xx $0.00 Month Day, Year
State Fiscal Year 20xx $0.00
State Fiscal Year 20xx $0.00 Current Contract Expiration Date
State Fiscal Year 20xx $0.00 Month Day, Year
Total for All State Fiscal Years $0.00
OPTIONS:
Option to extend for an Extension Term
REQUIRED PROVISIONS:
In accordance with Section(s) Number of the Original Contract referenced above, the State hereby exercises its
option for an additional term, beginning Insert start date and ending on the current contract expiration date
shown above, at the rates stated in the Original Contract, as amended.
OPTION EFFECTIVE DATE:
A. The effective date of this Option Letter is upon approval of the State or , whichever is later.
CONTRACTOR
City of Fort Collins Electric Utility Enterprise,
dba Fort Collins Connexion
______________________________________________
By: __________________, Enterprise Board President
Date: _________________________
STATE OF COLORADO
Jared S. Polis, Governor
Department of Transportation
Shoshana M. Lew, Executive Director
______________________________________________
By: Stephen Harelson, P.E., Chief Engineer
Effective Date: _________________________