CITY COUNCIL AGENDA MEMORANDUM

Transcription

1 City and County of Broomfield, Colorado CITY COUNCIL AGENDA MEMORANDUM To: From: Prepared by: Mayor and City Council Charles Ozaki, City and County Manager Jennifer Hoffman, Assistant to City and County Manager Meeting Date Agenda Category Agenda Item # October 25, 2011 Consent Agenda 5 ( a ) Agenda Title: Proposed Resolution No Authorizing and Approving a Master Lease Agreement By and Between the Boulder Valley School District No. RE-2 (BVSD) and the City and County of Broomfield For Use of Fiber Optic Cable Summary In 2008, Broomfield was contacted by BVSD about an opportunity to piggy back on their bond project for fiber optic cable in Broomfield. Fiber optic cable allows for transmission of computer data 650 times faster than the T1 lines that had been in use and is more reliable. Teaming up with BVSD, Broomfield contributed money to construct two fiber optic laterals off of BVSD s fiber optic ring. Broomfield contributed $34,247 toward project costs to connect one lateral to the Broomfield Police Department. Broomfield also contributed $15,751 toward project costs to connect the second lateral to the Broomfield water treatment facility, which was the only 'major' city and county facility not connected via fiber. The other city and county facilities were connected by piggy backing on Comcast s overbuilding project in The current usage of these two fiber strands was never memorialized in a formal contract. The BVSD is seeking to formalize the transfer of the laterals to Broomfield and enter into a Master Lease Agreement for use of the fiber optic ring. The major provisions of the proposed Master Lease Agreement are as follows: o Formalizes the transfer to Broomfield of the two fiber optic laterals currently in use, for maintenance purposes o Provides for the lease of the current two BVSD strands at a monthly rate of $72 per strand per mile. Based upon 5.5 miles of fiber optic cable, the annual lease rate is $9,504. This price was negotiated by the municipal entities using the BVSD cable, including the Cities of Broomfield, Boulder and Louisville, and the Boulder County Sheriff. o Provides an option to lease an additional four strands, at the same lease rate, as may be required by Broomfield in the future. o The proposed agreement is effective for an initial term of five years. Pursuant to the City Charter, approval of an intergovernmental agreement requires a two-thirds affirmative vote of the entire Council. Prior Council Action None Financial Considerations Annual lease rate totaling $9, Alternatives Investigate other potential fiber optic providers which could connect to the Broomfield laterals at the Water Treatment facility and the Police Department. Proposed Actions/Recommendations Based on the above, it is recommended That Resolution No be adopted. 5(a) - Page 1

2 RESOLUTION NO A RESOLUTION AUTHORIZING AND APPROVING AN INTERGOVERNMENTAL AGREEMENT BY AND BETWEEN THE BOULDER VALLEY SCHOOL DISTRICT NO. RE-2 AND THE CITY AND COUNTY OF BROOMFIELD FOR USE OF FIBER OPTIC CABLE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY AND COUNTY OF BROOMFIELD, COLORADO: Section 1. The Master Lease Agreement for Use of Fiber Optic Cable attached hereto by and between the Boulder Valley School District No. RE-2 and the City and County of Broomfield is hereby approved. Section 2. The mayor or mayor pro tem is authorized to sign and the city and county clerk to attest the intergovernmental agreement, in form approved by the city and county attorney. Section 3. This resolution is effective upon its approval by the City Council. APPROVED on October 25, THE CITY AND COUNTY OF BROOMFIELD, COLORADO ATTEST: Mayor City and County Clerk APPROVED AS TO FORM: I City and County Attorney 5(a) - Page 2

3 MASTER LEASE AGREEMENT FOR USE OF FIBER OPTIC CABLE BETWEEN BOULDER VALLEY SCHOOL DISTRICT NO. RE-2 AND CITY AND COUNTY OF BROOMFIELD, COLORADO THIS MASTER LEASE AGREEMENT ("Agreement") is entered into and effective as of July 1, 2011 (the "Effective Date") and is between the BOULDER VALLEY SCHOOL DISTRICT No. RE-2, a Colorado school district (the "District"); and CITY AND COUNTY OF BROOMFIELD, COLORADO, a Colorado municipal corporation and county ("User"), collectively, the "Parties," or individually, a "Party". BACKGROUND A. The District has built a fiber optic telecommunications network ("District Network") throughout its boundaries, including two fiber optic rings (the "Ring Fiber"), and spur backbones to Longmont, Colorado (the "Longmont Spur") and to Nederland, Colorado (the "Nederland Spur"), all as shown on the map attached as Exhibit A. B. The District Network consists of owned and leased conduit in which the District has installed a 288 strand fiber optic cable in the Ring Fiber portion of the Network, a 96 strand fiber optic cable in the Longmont Spur, and a 48 strand fiber optic cable in the Nederland Spur. C. The User wishes to be granted a lease of, and the District is willing to lease to User, certain dark fibers in the District Network, on the terms and conditions set forth below. D. In 2008, the District built two fiber laterals originating off of the District's fiber ring in Broomfield ("the Broomfield Laterals") for which the User paid the District $49, (the "User Construction Payment") of a total cost of approximately $88,000. The Broomfield Laterals connect the Broomfield Police station and the Broomfield water treatment facility. The Broomfield Laterals were built for the benefit of the User in exchange for other consideration, including rights-of-way, provided during construction of the District Network. The District and the User wish to provide for the disposition of these laterals, consisting of approximately.9 miles of fiber conduit and optic fiber, and the rights and obligations of the parties with regard to these laterals. AGREEMENT In consideration for the payments described in this Agreement and the covenants made by each of the Parties and for other good and valuable consideration, it is agreed by the Parties as follows: 1. DEFINITIONS. The Parties agree that the terms listed below will be defined as follows: 5(a) - Page 3

4 1.1. "User Fibers" means the strands of dark fiber identified in Section 2.1 to be provided to the User in the portions of the District Network "District Network" means the Boulder Valley School District fiber optic cable infrastructure as shown on Exhibit A "Lateral" means a conduit and fiber optic cable constructed by User to connect the User Fibers on the District Network to the User's facilities or conveyed to User by Section 9 of this Agreement, and connected to the District's backbone at a manhole designated by the District "Underlying Rights" means the right of way and other agreements described in Section GRANT OF LEASE 2.1 Subject to the provisions hereof, the District hereby leases to User; and User hereby leases from the District, the dark fibers specifically identified by the District in the District Network and located on portions of the District Network all as described on Schedule 2.1 attached hereto (the "User Fibers"). 2.2 The Lease of the User Fibers is referred to in this Agreement as the "Lease". The Lease is granted on the terms and subject to the covenants and conditions set forth in this Agreement and the Underlying Rights. The Lease shall be exclusive as to the User Fibers. Except as expressly set forth herein, the Lease does not include the right of User to control, access, repair, or maintain the User Fibers, or the right to use building access facilities, or the right of physical access to, or other use of, any portion of the District Network. User shall not encumber the User Fibers, any associated property of the District, or any rights obtained by User under this Agreement. 2.3 Except as expressly set forth herein, User acknowledges and agrees that the District is not supplying to User, nor is the District obligated to supply to User, any optronics or electronics or optical or electrical equipment or other facilities or equipment, including without limitation, generators, batteries, air conditioners, fire protection equipment, and monitoring and testing equipment, all of which are the sole responsibility of User, nor is the District responsible for performing any work other than as specified in this Agreement. 2.4 Additional terms including facilities, equipment or outside plant construction to be provided by the District are set forth on Schedule 2.4 attached hereto. In addition to the Broomfield Laterals conveyed to User by Section 9 of this Agreement, in the event the User will be required to provide or construct a Lateral to connect to the District Network, the specifications for that connection will be set forth on Schedule CONSIDERATION In consideration of the grant of the Lease by District to User, User shall pay the District a yearly Lease fee (the "Lease Fee") as set forth on Schedule 3.1 attached hereto, payable as provided in Schedule (a) - Page 4

5 3.2. In addition to the Lease Fee payable under paragraph Section 3.1, User shall pay directly or reimburse the District for the costs and expenses described elsewhere in this Agreement and the Schedules to this Agreement. 3.3 If User fails to make any payment under this Agreement when due, such amount shall accrue interest from the date such payment is due until paid, including accrued interest compounded monthly, at an annual rate of fifteen percent 15% or, if lower, the highest percentage allowed by law. If a dispute arises concerning an amount due by User, and it is later determined that the amount is due and owing to the District, such amount shall bear interest from the date when due until paid, at the foregoing rate. If User pays a disputed amount pending resolution of the dispute, and it is later determined that the amount is due and owing to the User, such amount shall bear interest from the date when paid until the date refunded to User, at the foregoing rate The Parties agree that the rate set forth above is a reasonable rate based upon the market value of the use of the District's fiber optic cable and the use of the District' facilities. 4. AGREEMENT TERM; TERMINATION 4.1. This Agreement shall become effective on July 1, 2011 and shall extend for an initial term of five (5) years, unless terminated earlier as provided in this Section 4 or in Section 5.5 below. This Agreement may be renewed for an additional five (5) year term on such terms and conditions as may be mutually agreed to by the parties in writing. User shall give the District sixty (60) days written notice prior to the end of the initial term, of its intent to renew If any Party fails to fulfill, in a timely and proper manner, its material obligations under this Agreement, or if any party violates any of the material covenants, agreements, or stipulations of this Agreement, the other party shall have the right to terminate for cause by giving written notice of such termination and specifying the effective date thereof, at least sixty (60) days before the effective date of such termination, provided, however, the defaulting party shall have thirty (30) days in which to cure its failure or violation, in which case this Agreement shall not terminate or be modified. 4.3 Notwithstanding any other provision herein to the contrary, either Party shall have the right to terminate this Agreement prior to the expiration of the initial term or any renewal term by providing the other Party with 90 days notice prior to the early termination date and upon such termination both Parties will have no further obligations under this Agreement except that if the District so terminates this Agreement it shall refund the User within thirty (30) days its pro-rata share of the annual Lease Fee for the portion of the year remaining as of the date of termination. 4.4 At the expiration or termination of this Agreement for any reason, the Lease of the User Fibers shall immediately terminate, and all rights of User to use the District Network or any part thereof shall cease. At the end of the term, User shall immediately cease using the User Fibers and at User's sole cost and expense remove any and all equipment associated with the User Fibers. 5(a) - Page 5

6 5. ACCESS; USE OF FIBER; UNDERLYING RIGHTS 5.1. The User will have access to the User Fibers only at the fiber termination panel in the User facilities and at such other interconnection points as are designated by the District, in its sole discretion; provided that in the event the User provides or constructs a Lateral connection, the User will have access to the User Fibers at the point of such interconnection. Except as provided herein, the User will have no right to perform work on or otherwise physically access the User Fibers except with express permission and supervision of the District The District has obtained certain rights of way for construction and operation of the District Network, including, but not limited to a Lease Agreement for Conduit Space and Fiber Optic Cable between the City of Boulder and the District dated March 5, 2008 (the "City of Boulder Lease"), a Lease Agreement for Fiber Optic Cable and Related Facilities between Boulder County and the District dated November 10, 2009 and a Lease and License Agreement for Fiber Optic Telecommunications Network between the City of Louisville and the District dated August 12, 2008 (all of such agreements referred to as the "Underlying Rights"). The Lease is subject to the terms and restrictions of the Underlying Rights, and subject to the terms under which the right of way is owned or held by the grantor of the Underlying Rights, including, but not limited to, covenants, conditions, restrictions, easements, reversionary interests, bonds, indentures, and other matters, whether or not of record, and to the rights of tenants and licensees in possession. The Lease granted hereunder is further subject and subordinate to the prior right of the grantor of the Underlying Rights to use the right of way for other business activities, including telecommunications uses, pipeline operations or any other purposes, and to the prior right of the District to use its rights granted under the Underlying Rights. The rights granted herein are expressly made subject to each and every limitation, restriction or reservation affecting the Underlying Rights. Nothing herein shall be construed as to be a representation, warranty or covenant of the District's right, title or interest with respect to the right of way or the Underlying Rights, or the scope, nature or duration of any of the foregoing. The District will provide a copy of each of the Underlying Rights documents affecting the User Fibers and provide the User the opportunity to review such Underlying Rights prior to the execution of this Agreement. 5.3 User represents and warrants that it will use the User Fibers in compliance with the Underlying Rights and all applicable government codes, ordinances, laws, rules and regulations. 5.4 User will not use the User Fibers or its systems in a way that interferes with or adversely affects the use of any other fibers in the District Network. The parties acknowledge that the District Network includes other participants who have leased fiber from the District on the District Network. 5.5 If the District, upon expiration or other termination of an Underlying Right, is unable to renew or obtain alternative Underlying Rights using its commercially reasonable efforts, the District shall not be deemed in breach hereof and User's sole and exclusive remedy shall be the termination of this Agreement with regard to the portion of the District Network materially and adversely affected by the Underlying Rights that were not renewed or obtained, or with respect to the entire District Network if the material and adverse effect upon the portion of 5(a) - Page 6

7 the District Network affected frustrates User's purpose in entering this Agreement, as reasonably determined by User. 6. MAINTENANCE AND REPAIR; RELOCATION. 6.1 The District will be responsible for the operations, maintenance and repairs of the District Network and the User Fibers during the term of this Agreement, and may subcontract these services to contractors it selects. So long as User is making payments under Section 3, the District will provide fiber locates, route patrol and Network maintenance and repair at no additional charge. In addition, at all times during the term of this Agreement, the User will pay its proportionate share of all costs of repairs of damage to the User Fibers based upon the ratio of the total number of User Fibers, whether lit or dark, to the total number of fibers in the damaged cable times the actual cost incurred by the District for the repair. All such costs that are allocated to User pursuant to the foregoing provisions shall be the responsibility of User and shall be paid by User within ninety (90) days after its receipt from the District of an invoice for such costs. In the event User pays its proportionate share of costs of repair or damage to the User Fibers and the District recovers these costs pursuant to a policy of insurance or from a third-party, the District shall refund to User the amount paid by User for such repair, or if the amount recovered is less than the full cost of the repair(s), a pro rata portion thereof. The District agrees to use commercially reasonable efforts to promptly repair all damage caused by the District or its contractors to the District Network and the User Fibers. 6.2 The User will be responsible for the maintenance and repair of any Lateral connection provided or constructed by User to connect the User Fibers to the User's facilities, including the Broomfield Laterals conveyed to User in Section 9 of this Agreement. 6.3 If the District is required to relocate any portion of the Network, including any of the facilities used or required in providing the User Fibers, the District shall use commercially reasonable efforts to minimize the disruption of User's use of the User Fibers. Relocation costs which are not reimbursed by the relocating entity shall be allocated among the various interest holders in the conduit, cable and/or fibers affected based on the ratio the number of their respective fibers affected bears to the total number of fibers in the cable affected. All such costs that are allocated to User pursuant to the foregoing provisions shall be the responsibility of User and shall be paid by User within sixty (60) days after its receipt from the District of an invoice for such costs. The District will provide a minimum 90 day notification of any relocation to the User. 7. ASSIGNMENT AND USER FIBER TRANSFERS 7.1 User may not, without the District's consent, assign or otherwise transfer this Agreement or its rights or obligations hereunder to any other party, in whole or in part. Any such assignee shall agree in writing to be bound and abide by this Agreement. Without limiting the generality of the foregoing, User shall not grant to any third party an indefeasible right of use, dark fiber lease, license to use any fibers, or any other right with respect to the User Fibers or any rights under this Agreement. In the event of a permitted assignment by User pursuant to this section, User shall not be relieved of its obligations under this Agreement and both User and the assignee shall be obligated to perform all of User's obligations under this Agreement. 5(a) - Page 7

8 7.2 Notwithstanding the provisions of Section 7.1, User shall have the right, without the District's consent, but with prior written notice to the District, to assign or otherwise transfer this Agreement to any entity into which User may be merged or consolidated or which purchases all or substantially all of the assets of User; provided that User shall not be released from its obligations hereunder. 8. FIBER SPECIFICATIONS; WARRANTY LIMITATION 8.1 The District has tested the User Fibers to verify that they have been installed and operate in accordance with specifications for the fiber type identified on Schedule 2.1. Upon execution of this Agreement, if requested, the District will provide User with a copy of the test results relating to the User Fibers. In addition, the User may, at User's expense, conduct its own acceptance tests. In the event the User Fibers fail to meet the District specifications, the District will provide User with substitute fibers, if available. 8.2 USER ACKNOWLEDGES THAT, EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE DISTRICT MAKES NO WARRANTY REPRESENTATION OR INDEMNITY WITH RESPECT TO THE USER FIBERS, THE DISTRICT NETWORK, OR ANY WORK PERFORMED UNDER THIS AGREEMENT, INCLUDING ANY AND ALL WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE, AND USER HEREBY EXPRESSLY WAIVES AND DISCLAIMS ALL SUCH WARRANTIES, REPRESENTATIONS AND INDEMNITIES. 9. CONVEYANCE OF BROOMFIELD LATERALS 9.1 In 2008, the District built two fiber laterals originating off of the District's fiber ring in Broomfield, consisting of approximately.9 miles of fiber conduit and optic fiber, and as more fully described in Exhibit B attached hereto ("the Broomfield Laterals"). During the construction of the District Network, the User provided the District certain consideration ("Consideration"), including the User Construction Payment and including use of User's rightsof-way subject to the terms and conditions of City and County of Broomfield Public/Private Improvement Permits, and the District, by signature below, hereby conveys all right, title and interest in the Broomfield Laterals as described on Exhibit B to the User without additional cost to the User. District hereby agrees that the Consideration provided by User is complete payment for any and all costs the User may owe the District for the construction or use of the District's fiber optic cable, User Fibers, and Broomfield Laterals other than as specifically set forth in this Agreement. 9.2 To the extent the User requires access to the Broomfield Laterals at the District's handholes located at Sheridan & 144th and Midway & Main, the User agrees that any such access shall only be with express permission and supervision of the District. 9.3 The User agrees that in the event the District requires fiber access along the Broomfield Laterals at any time during the term of this Lease Agreement, the User shall provide the District six (6) strands of the Broomfield Laterals at no additional cost to the District. 5(a) - Page 8

9 9.4 The User agrees to be responsible for all locates, maintenance and repair on the Broomfield Laterals. 10. MISCELLANEOUS PROVISIONS Disagreements. Both Parties agree in good faith to use their best efforts to resolve disputes that may arise under this Agreement by direct consultation, facilitated discussions or mediation, if possible, before commencement of litigation; provided, however, such procedures shall not be a condition precedent to the filing of litigation in order to protect against the application of any statute of limitations No Indemnity and Hold Harmless; Insurance. Neither Party is required to indemnify the other in connection with this Agreement, except as set forth in this Agreement. Neither party will be liable to the other for any indirect, special, consequential, incidental, or punitive damages, including cost of cover. However, each Party assumes responsibility for its actions and omissions in the performance or failure to perform work under this Agreement, as well as the actions and omissions of its agents and employees. Neither party waives the limitations on liability which are provided to it or its officers, and employees under the Colorado Governmental Immunity Act, C.R.S et. seq. The parties shall at all times during the term of this Lease maintain such liability insurance, by commercial policy or self insurance, as is necessary to meet its liabilities No Claim Upon Revocation. The Lease and the rights granted pursuant to the Lease shall create no vested rights subsequent to its expiration, termination or revocation. Upon such expiration, termination or revocation, neither Party nor any successor in interest of any Party, including without limitation a trustee or creditor in bankruptcy, shall have any right to continue to operate the District Network or to recover any expenditures made hereunder Annual Appropriation. Notwithstanding anything contained herein to the contrary, to the extent required by Colorado law, the District's and the User's financial obligations under this Agreement in future fiscal years are subject to annual appropriation Taxes. The parties acknowledge that the District is exempt from the payment of taxes. To the extent applicable, the User agrees to be responsible for any taxes assessed on the User Fibers as a result of User's interest therein Force Majeure. Neither party shall be in default under this Agreement if its failure to perform is caused by any of the following conditions: act of God, fire, flood, sabotage, power outages, material shortages or unavailability or other delay in delivery not resulting from the responsible party's failure to timely place orders; lack of or delay in transportation; government codes, ordinances, laws, rules, regulations, orders approvals or restrictions (collectively, "Regulations"); war or civil disorder; acts of terrorism; labor unrest or strike; failure of a third party to grant or recognize a required right-of-way permit, easement, Underlying Right, or other required authorization for use of the intended right-of-way; or any other cause beyond the commercially reasonable control of the affected party. The party claiming relief under this Section shall promptly notify the other in writing of the existence of the force majeure event relied upon and the cessation or termination of that event. For the duration of any 5(a) - Page 9

10 valid force majeure event, the performance or nonperformance of the affected party shall be excused Governing Law and Venue. All agreements among the Parties shall be construed and interpreted in accordance with the laws of the United States of America and the State of Colorado. Venue for any action shall be proper in the Twentieth Judicial District of the State of Colorado and in the Federal District Court for the District of Colorado, depending upon the cause of action urged Integration Clause. This Agreement and the attached exhibits and appendix contain the entire agreement between the Parties relating to the District Network and may be modified only by an instrument in writing executed by all of the Parties Effective Date. The terms of this Agreement will become effective on the date set forth at the beginning of this Agreement Notices. All notices under this Agreement shall be given by registered or certified mail, postage prepaid, directed as follows, or as amended by notice given under this paragraph, and shall be deemed given on the date of mailing: Intended for the District: Intended for the User: Boulder Valley School District No. RE E. Arapahoe, P.O. Box 9011 Boulder, CO City and County of Broomfield One Descombes Drive Broomfield, CO ATTN: City and County Manager No Third Party Beneficiaries. The covenants and agreements contained in this Agreement are for the benefit of the District and the User only, and do not create any obligations or duties to persons not parties hereto Authority. The Parties represent that the individuals executing this Agreement on their behalf possess full power and authority from their respective governing boards in compliance with Colorado law Counterparts; Facsimile Transmission. This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed and delivered shall be deemed an original but all of which shall constitute but one and the same instrument. This Agreement may be executed and delivered by facsimile transmission. Any person or party causing a signed copy of this Agreement to be transmitted by facsimile device to any other person or party shall be deemed to have executed and delivered an original counterpart of this Agreement; and, further, shall be deemed to have agreed, upon request made 5(a) - Page 10

11 by any other party hereto, to execute a further original counterpart of this Agreement manually, and to deliver such manually executed counterpart to the party making such request Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby No Partnership. The Parties acknowledge and agree that this Agreement does not create a partnership between, or a joint venture of, District and User No Waiver. No delay or omission by either party to exercise any right or power occurring upon non-compliance or failure of performance by the other party shall impair that right or power or be construed to be a waiver thereof. A waiver by either party of any of the covenants, conditions or agreements to be performed by the other party shall not be construed to be a general waiver of any such covenants, conditions or agreements, but the same shall be and remain at all times in full force and effect Survival. Termination of this Agreement by either party shall not affect the rights and obligations of the parties accrued prior to the effective date of the termination. Section 3.3 (Parties' rights to recover disputed amounts plus interest), Section 4.4 (User's right to extend use of User Fibers as necessary for User to arrange for facilities to replace User Fibers), Section 6.1 (User's right to reimbursement of contributions for maintenance or repair where sums are recovered from third parties) and Section 9 (Conveyance of Broomfield Laterals), shall survive the expiration or termination of this Agreement EXECUTION REQUIRED. This Agreement shall not be binding upon any Party hereto unless and until the Parties have executed this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date indicated. [SIGNATURE PAGE FOLLOWS] 5(a) - Page 11

12 BOULDER VALLEY SCHOOL DISTRICT NO. RE-2 By: Attest: CITY AND COUNTY OF BROOMFIELD, COLORADO By: Title: Attest: City & County Clerk City & County Attorney EXHIBITS: Exhibit A: District Network (map) Exhibit B: Description of Broomfield Laterals SCHEDULES: Schedule 2.1: User Fibers Schedule 2.4: Additional Terms Schedule 3.1: Lease Fee 5(a) - Page 12

13 EXHIBIT A EXISTING DISTRICT NETWORK See attached map. 5(a) - Page 13

14 BVSD Fiber Network - with City/County of Broomfield's Sites Blue Line is BVSD's Backbone around entire district. BVSD Backbone (Blue) (4.7 Miles) BVSD Backbone {Blue) (.8 Miles) BVSD New Vista High 8/17/11 ars Broomfield Water Treatment Broomfield City and County Building 5(a) - Page 14

15 EXHIBIT B DESCRIPTION OF BROOMFIELD LATERALS See attached. 5(a) - Page 15

16 5(a) - Page 16

17 5(a) - Page 17

18 SCHEDULE 2.1 USER FIBERS Number of fiber strands: Fiber type: Miles of User Fiber: Location of end points: Two (2), with an option to lease an additional four (4) strands for a maximum total of six (6) strands at the rate specified in Schedule 3.1 Draka Dark Fiber which meets the requirements of ITU-T Recommendation G.652.B, the IEC International Standard type B.1.1 Optical Fiber Specification, Telcordia GR-20- CORE, ANSI/ICEA S and RUS 7CFR Miles (4.7 miles from Sheridan Blvd & 144th to Broomfield High plus.8 miles from Broomfield High to Midway & Main Street. District Backbone on Eastern Ring at Sheridan Blvd & 144th in Broomfield and at Midway & Main Street in Broomfield. User shall have access with District approval to the User Fibers in the handholds at these intersections. User shall be responsible for splicing User's Lateral Fibers to the User Fibers using a Districtapproved contractor, such approval not to be unreasonably withheld. This Schedule may be amended from time to time to add User Fibers by written agreement of the parties, provided that the terms and conditions of the Master Lease Agreement shall be applicable with regard to additional User Fibers and the term of the Lease with regard to additional fibers shall run concurrent with the term of the Master Lease 5(a) - Page 18

19 SCHEDULE 2.4 ADDITIONAL TERMS None 5(a) - Page 19

20 SCHEDULE 3.1 LEASE FEE User shall pay the District an annual Lease Fee of $9, for two (2) strands, based on a monthly per strand/per mile price of $ If User exercises its option to lease an additional four (4) strands, the per strand/per mile price of $72.00 a month shall apply. The first payment shall be due and payable within thirty (30) days of the execution of this Agreement and on or before the first day of July each year during the Term of the Lease. 5(a) - Page 20