HomeMy WebLinkAbout20184010.tiffRESOLUTION
RE: APPROVE DISASTER RECOVERY SITE USE AGREEMENT AND AUTHORIZE CHAIR
TO SIGN
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Disaster Recovery Site Use Agreement
between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, on behalf of the Department of Information Technology, and the
State of Colorado Governor's Office of Information Technology, commencing upon full execution
of signatures, with further terms and conditions being as stated in said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy
of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Disaster Recovery Site Use Agreement between the County of Weld,
State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf
of the Department of Information Technology, and the State of Colorado Governor's Office of
Information Technology, be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 12th day of December, A.D., 2018.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: c-Ae-cto; ei
Weld County Clerk to the Board
BY: t,Q✓
Deputy C
rto the Boar
APPRO - ' AS TO
ounty •`" orney
Date of signature: 1/27_/l9
Mike Freeman
Steve Moreno, Chair
ie A. Cozad
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2018-4010
IT0007
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW '
RE: Disaster Recovery Site Use Agreement
DEPARTMENT: Information Technology
PERSON REQUESTING: Ryan Rose \•V"""
Brief description of the problem/issue:
DATE: _November 26, 2018
The attached agreement provides Weld County IT access and use of the State of Colorado disaster recovery
facility through the Governor's Office of Information Technology (OIT). OIT, acting for the State, currently
subleases space in a data center known as the State's Enterprise Facility for Operational Recovery Readiness
Response & Transition Services ("e-FOR3T"). The original agreement was signed in 2015.
The attached agreement enables continued sublease of space in the datacenter ("e-FOR3T") for an additional three
(3) years from the effective date, with the option to renew annually thereafter.
Bob Choate has reviewed and approved the agreement.
What options exist for the Board? (Include consequences, impacts, costs, etc. of options)
IT is requesting authorization for the Chair to sign the agreement.
Recommendation:
Weld County IT recommends that the Board grant approval for the Chair to sign the attached agreement which
will allow continued use of e-FOR3T.
Approve
Recommendation
Sean P. Conway
Julie Cozad
Mike Freeman
Barbara Kirkmeyer, Pro-Tem
Steve Moreno, Chair
Schedule
Work Session
Other/Comments:
2018-4010
"="1-
From: Karla Ford
Sent: Wednesday, December 5, 2018 11:00 AM
To: Ryan Rose <rrose@weldgov.com>
Subject: Three Pass-Arounds
Here are three pass -around you submitted. These were approved by four of the five
commissioners. Commissioner Freeman is out of the office until Monday. You can move forward with
four recommendations. The pass-arounds will be sent to you via interoffice mail. Thank you!
Karla Ford X
Office Manager, Board of Weld County Commissioners
1150 O Street, P.O. Box 758, Greeley, Colorado 80632
:: 970.336-7204 :: kford(d)weldgov.com :: www.weldgov.com :.
My working hours are Monday -Thursday 7:00a.m.-4:00 p.m.
Friday 7:00a.m. - Noon
Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to
which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received
this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying,
distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named
recipient is strictly prohibited.
Chloe Rempel
From:
Sent:
To:
Cc:
Subject:
Okay
gad &goo&y, ePrie
Barbara Connolly, CPA
Weld County Government
Controller and
Purchasing Director
1150 O Street
Greeley, CO 80631
(970) 400-4445
Barb Connolly
Monday, December 10, 2018 2:12 PM
Esther Gesick; Bruce Barker; Bob Choate; Frank Haug
Ryan Rose; Stephanie Frederick; Chloe Rempel; Cheryl Hoffman; Nancy Wonder
RE: SIGNATURE REVIEW / ONBASE CONTRACT ID #2327
Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for
the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise
protected from disclosure. If you have received this communication in error, please immediately notify sender by return
e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the
contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited.
From: Esther Gesick
Sent: Monday, December 10, 2018 1:45 PM
To: Barb Connolly <boonnolly@weldgov.com>; Bruce Barker <bbarker@weldgov.com>; Bob Choate
<bchoate@weldgov.com>; Frank Haug <fhaug@weldgov.com>
Cc: Ryan Rose <rrose@weldgov.com>; Stephanie Frederick <sfrederick@weldgov.com>; Chloe Rempel
<crempel@weldgov.com>; Cheryl Hoffman <choffman@weldgov.com>; Esther Gesick <egesick@weldgov.com>; Nancy
Wonder <nwonder@weldgov.com>
Subject: SIGNATURE REVIEW / ONBASE CONTRACT ID #2327
Importance: High
Hello Barb and Legal,
Please review the attached item. It was routed through OnBase via the Consent workflow; however, I believe it requires
review as an item of New Business with a Resolution. Rather than rerouting through OnBase, please acknowledge your
review via email response so we can continue to accommodate the request that it be executed on this Wednesday,
December 12, 2018.
1
Chloe Rempel
From:
Sent:
To:
Cc:
Subject:
Okay.
Thanks,
Bob Choate
Assistant Weld County Attorney
(970) 400-4393
Bob Choate
Monday, December 10, 2018 1:46 PM
Esther Gesick; Barb Connolly; Bruce Barker; Frank Haug
Ryan Rose; Stephanie Frederick; Chloe Rempel; Cheryl Hoffman; Nancy Wonder
RE: SIGNATURE REVIEW / ONBASE CONTRACT ID #2327
From: Esther Gesick
Sent: Monday, December 10, 2018 1:45 PM
To: Barb Connolly <bconnolly@weldgov.com>; Bruce Barker <bbarker@weldgov.com>; Bob Choate
<bchoate@weldgov.com>; Frank Haug <fhaug@weldgov.com>
Cc: Ryan Rose <rrose@weldgov.com>; Stephanie Frederick <sfrederick@weldgov.com>; Chloe Rempel
<crempel@weldgov.com>; Cheryl Hoffman <choffman@weldgov.com>; Esther Gesick <egesick@weldgov.com>; Nancy
Wonder <nwonder@weldgov.com>
Subject: SIGNATURE REVIEW / ONBASE CONTRACT ID #2327
Importance: High
Hello Barb and Legal,
Please review the attached item. It was routed through OnBase via the Consent workflow; however, I believe it requires
review as an item of New Business with a Resolution. Rather than rerouting through OnBase, please acknowledge your
review via email response so we can continue to accommodate the request that it be executed on this Wednesday,
December 12, 2018.
Thank you,
Esther E. Gesick
Clerk to the Board
1150 O Street/P.O. Box 758/Greeley, CO 80632
tel: (970) 400-4226
Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed
and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please
immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents
of this communication or any attachments by anyone other than the named recipient is strictly prohibited.
1
CMS 121869
DISASTER RECOVERY SITE USE AGREEMENT
This Disaster Recovery Site User Agreement ("Agreement") is entered into by and between the Weld
County Board of County Commissioners, 1150 'O' Street, Greeley, Colorado 80632 ("Weld County")
and the State of Colorado (the "State") acting by and through the Governor's Office of Information
Technology ("Off"). Weld County and OIT hereinafter collectively referred to as the "Parties" or
individually as a "Party".
RECITALS
A. OIT, acting for the State, currently subleases space in a data center (the "Site") known as the
State's Enterprise Facility for Operational Recovery Readiness Response & Transition Services
("e-FOR3T");
B. Weld County, a political subdivision of the State, desires to use a portion of the State's space in
the Site as an "Other State Agency" as defined in Article 1(B) of that certain Sublease Agreement
dated February 28, 2006 by and between OIT as tenant and ViaWest Internet Services, Inc. as
landlord (the "Sublease Agreement," attached hereto as Exhibit A (as amended) and incorporated
herein by reference); and
C. OIT's authority to enter into this Agreement with Weld County exists in CRS § 24-37.5-105 et
seq.; and
D. OIT and Weld County desire to reduce the terms of their Agreement to writing and hereby agree
to the following terms and conditions.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and promises herein contained,
Off and Weld County agree as follows:
1. RECITALS: The above recitals are incorporated herein by reference, and made a part of this
Agreement as though fully set forth herein.
2. USE OF DISASTER RECOVERY SITE: OIT hereby allows Weld County, and Weld County
hereby accepts from OIT, use of space within e-FOR3T at the Site, pursuant to the terms and
conditions set forth herein.
3. USAGE FEES: Weld County shall pay to OIT during the term of this Agreement, effective on the
date this Agreement is signed by both Parties ("the Effective Date"), One Thousand One Hundred
Thirty -Five Dollars and 78/100 ($1,135.78) per month in usage fees ("Usage Fees") through the
3 -year duration of this Agreement. The Usage Fees shall not increase or decrease more than ten
(10) percent each State Fiscal Year thereafter. Any increase or decrease in the Usage Fees shall
be communicated by OIT to Weld County at least thirty (30) days before such increase or
decrease to the Usage Fees is made effective by Off. Additionally, Weld County shall pay to Off
one hundred (100) percent of its proportionate share of utility bills per month based on Weld
County's use of electricity, water, and other utilities at the Site as deemed by OIT in accordance
with the Sublease Agreement ("Utility Fees"). OIT shall send an invoice to Weld County each
month that shall include the Usage Fees and Utility Fees payable by Weld County for the
previous month. All Usage Fees and Utility Fees shall be payable and delivered to OIT via check
Page 1 of 6
CMS 121869
or any other form of payment mutually agreed to by the Parties at the address listed in §13 within
thirty (30) days of the date of the invoice. For purposes of this Agreement "State Fiscal Year"
shall mean the period beginning July I of each calendar year and ending on June 30 of the
following calendar year.
4. ACCESS: Off warrants and represents that Off has the legal right of occupancy to the Site with
all appurtenances pursuant to the terms of the Sublease Agreement. Off shall provide Weld
County with access to the Site twenty-four (24) hours per day, seven (7) days per week, three
hundred sixty-five (365) days per year for installation, maintenance and removal of Weld
County's equipment in accordance with OIT's access requirements and any acceptable use or
other requirements imposed by the Sublease Agreement. Weld County shall secure all access
gates and building locks when entering or leaving the site. Notwithstanding anything to the
contrary herein, Weld County agrees to abide by the access requirements provided by Off and
contained in the Sublease Agreement, and to permit only authorized employees of Weld County
or persons under Weld County's direct supervision to enter site and only in accordance to OIT's
access requirements. Weld County will typically provide Off with twenty-four (24) hour
advanced notice prior to requiring access to Weld County's equipment. Exceptions may be
required for emergency service restoration and regular maintenance during non -peak usage times,
but notwithstanding the foregoing, Weld County shall provide Off with as much notice as
possible prior to entering the Site.
5. UTILITIES: OIT does not warrant nor represent that utilities are adequate for Weld County's use
at the Site. Weld County is solely responsible for ensuring there is adequate electricity, water, and
other utilities necessary for safe operation of Weld County's equipment. Weld County's payment
of its share of utility bills does not guarantee adequate utilities will be provided or maintained.
Off shall not be liable for any malfunction or failure of Weld County's equipment due to
inadequate utilities of any kind, regardless of the reason or nature of such inadequacy.
6. INTERFERENCE OR DAMAGE TO SITE SYSTEMS OR EQUIPMENT: Weld County shall be
liable to Off, the State, OIT's landlord under the Sublease Agreement, and any other tenants at
the Site, for any damages or problems incurred or sustained to the Site, and any facilities,
equipment, and data located at or within the Site due to acts or omissions of Weld County, its
agents, contractors, or representatives, including but not limited to acts relating to the access or
lack thereof, installation, operation, maintenance, repair, or replacement of Weld County's
equipment at the Site. Weld County assumes direct liability for any reimbursement requested of
or by Off, the State, OIT's landlord or other tenants as a result of the acts or omissions of Weld
County, its agents, contractors, or representatives.
INTERFERENCE OR DAMAGE TO WELD COUNTY'S SYSTEM OR EQUIPMENT: WELD
COUNTY ASSUMES ALL RISK AND LIABILITY IN PLACING ITS EQUIPMENT WITHIN
THE SITE, AND UNDERSTANDS AND ACCEPTS OIT'S FULL DISCLAIMER OF ANY
LIABILITY FOR ANY DAMAGES OR PROBLEMS INCURRED OR SUSTAINED BY
WELD COUNTY TO ITS EQUIPMENT OR SYSTEMS, WHETHER OR NOT DUE TO ACTS
OF Off, THE STATE, ITS AGENTS, CONTRACTORS, OR REPRESENTATIVES. Off AND
THE STATE SHALL NOT BE HELD LIABLE FOR DAMAGE TO WELD COUNTY'S
EQUIPMENT OR THE LOSS OF WELD COUNTY'S DATA FOR ANY REASON.
7. TERM OF USE: This Agreement shall be effective for three (3) years from the Effective Date,
with the option to renew annually thereafter, unless sooner terminated by either Party pursuant to
Page 2 of 6
CMS 121869
the provisions hereinafter set forth.
8. TERMINATION: Either Party may terminate this Agreement, with or without cause, by giving
the other Party at least ninety (90) days' written notice of its intention to terminate this
Agreement. Upon termination of the Agreement for any reason, Weld County shall remove its
equipment and material at the Site within thirty (30) days after termination of this Agreement, and
shall leave the Site in substantially the same condition as it existed prior to the date when Weld
County installed its equipment and material. Weld County shall continue to pay Usage Fees as set
forth in this Agreement until all of its equipment and material has been removed from the Site
and such removal has been verified by on.
9. CHANGE OR MOVE OF FACILITY: In the event that OIT, or the State changes, sells, moves,
or modifies its ownership of the Site, on and the State shall not be responsible for covering any
costs associated with moving Weld County's equipment, nor shall OIT and the State be
responsible for the safety of Weld County's equipment during such move. OIT shall notify Weld
County of any modifications to the Site that on determines in its sole discretion may affect Weld
County's equipment at least thirty (30) days before the change takes place, but at no point shall
OIT or the State be held liable for any impacts such modifications have on Weld County's
equipment. Upon written notice to on, Weld County may choose to terminate the Agreement in
the event that the newly -modified Site does not meet the needs of Weld County, and Weld
County shall remove its equipment and material from the Site within thirty (30) days of such
termination.
10. COMPLIANCE WITH LAWS: Weld County agree to comply with the applicable provisions of
all federal, State, or local laws or ordinances and all lawful orders, rules, and regulations issued
thereunder, and any provisions, representations, agreements, or contractual clauses required
thereby to be included or incorporated by reference or operation of law in this Agreement.
11. COMPLIANCE WITH SECURITY REQUIREMENTS: Weld County shall ensure that security
is not compromised at the Site by unauthorized access to its equipment, software, databases, or
other electronic environments. Weld County agrees to review, on a semi-annual basis, all policies
and procedures promulgated by the Office of Information Security ("OIS") pursuant to CRS §§
24-37.5-401 through 406 and 8 CCR § 1501-5 and posted at http://oit.state.co.us/ois, and to
comply with the standards and guidelines published therein. Weld County shall cooperate, and
shall cause its agents, contractors, and representatives to cooperate, with the performance of
security audit and penetration tests by OIS or its designee. Nothing in this Agreement shall
authorize Weld County to receive or access any State information, data, records, or documentary
materials of any kind, whether or not such information is sensitive, confidential, or otherwise
protected. If Weld County becomes aware of any accidental or deliberate event that results in or
constitutes an imminent threat of unauthorized access, loss, disclosure, modification, disruption,
or destruction of communication and information resources of Off, the State, or any other tenant
at the Site pursuant to CRS § 24-37.5-401 ("Incident"), Weld County shall notify on
immediately and cooperate with Off, OIS and the State regarding recovery, remediation, and the
necessity to involve law enforcement, if any. Notwithstanding any other provision of this
Agreement, Weld County shall be liable to the State for all consequential and incidental damages
arising from an Incident caused by Weld County or its agents, contractors, or representatives.
12. DEFAULT: If Weld County is in default under any of the terms and provisions contained
herein, OIT shall notify Weld County of the default. Weld County shall then have thirty (30)
days after such notice in which to cure any default. If any default is not capable of being cured
within the requisite period of time, then so long as Weld County has diligently pursued such
Page 3 of 6
CMS 121869
cure of the default within the prescribed period, Weld County shall be given the necessary time
to cure the default. If the default continues after the period for cure passes, OIT may, in its sole
discretion, cancel and terminate this Agreement and, upon thirty (30) days' notice of such
termination, immediately re-enter and repossess the premises without being guilty of any
manner of trespass or forcible entry or detainer. Upon repossession by on, this Agreement
shall be considered terminated and Weld County shall have thirty (30) days after termination to
remove its equipment and material, after which title to such equipment and material shall be
forfeited to OIT. No waiver of any default or breach of anyone or more of the conditions or
covenants of this Agreement shall be deemed to imply or constitute a waiver of any succeeding
or other breach thereunder.
13. NOTICES: Any notice to be given under this Agreement shall either be hand -delivered, with
signed receipt, or mailed to the Party to be notified at the addresses set forth herein, with signed
receipt, or by facsimile with confirmation. Any notice so mailed and any notice served by
personal delivery shall be deemed delivered and effective upon confirmed receipt in accordance
with the delivery requirements of this § 13. This method of notification shall be used in all
instances, except for emergency situations when immediate notification to the Parties is required.
Any demand or notice to either Party may be given to the other Party by addressing the written
notice to:
The State:
With a copy to:
Colorado Governor's Office of Information Technology
Attention: OIT Data Center Manager
12500 E Arapahoe Road Centennial, CO 80112
Colorado Governor's Office of Information Technology
Attention: Brenda Berlin, Deputy CIO and CFO
601 East 18th Avenue, Suite 130, Denver, CO 80203
And sent via email to: OIT_Contracts@state.co.us
Weld County: Weld County Department of Information Technology
Attention: Ryan Ross, Chief Information Officer
1401 N. 17th Ave Greeley CO 80631
14. ENTIRE AGREEMENT -MODIFICATION: This Agreement contains the entire Agreement and
understanding between the Parties to this Agreement and supersedes any other agreements
concerning the subject matter of this transaction, whether oral or written. No modification,
amendment, novation, renewal, or other alteration of or to this Agreement and the attached
exhibits shall be deemed valid or of any force or effect whatsoever, unless mutually agreed upon
in writing by the undersigned Parties.
15. SEVERABILITY: If any term or condition of this Agreement shall be held to be invalid, illegal,
or unenforceable, this Agreement shall be construed and enforced without such a provision, to the
extent this Agreement is then capable of execution within the original intent of the Parties.
16. NO THIRD -PARTY BENEFICIARY: It is expressly understood and agreed that enforcement of
the terms and conditions of this Agreement, and all rights of action related to such enforcement,
shall be strictly reserved to the undersigned Parties, and nothing contained in this Agreement
shall give or allow any claim or right of action whatsoever by any other party not included in this
Agreement. It is the express intention of the undersigned Parties, that any third parties receiving
services or benefits under this Agreement shall be deemed an incidental beneficiary only.
Page 4 of 6
CMS 121869
17. GOVERNMENTAL IMMUNITY: No term or condition of this Agreement shall be construed or
interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections
or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as
applicable now or hereafter amended.
18. GOVERNING LAW AND VENUE: This Agreement shall be governed by the laws of the State
of Colorado, and exclusive venue shall lie within the City and County of Denver, Colorado.
19. FUND AVAILABILITY: Financial obligations of the Parties payable after the current fiscal year
are contingent upon funds for that purpose being appropriated, budgeted and otherwise made
available. Execution of this Agreement by the Parties does not create an obligation on the part of
the Parties to expend funds not otherwise appropriated in each succeeding year.
20. SURVIVAL OF CERTAIN AGREEMENT TERMS: Notwithstanding anything herein to the
contrary, provisions of this Contract requiring continued performance, compliance, or effect after
termination hereof, shall survive such termination and shall be enforceable by either Party the
other Party fails to perform or comply as required.
21. PRESS CONTACTS/NEWS RELEASE: Neither Party shall initiate any press and/or media
contacts or respond to press and/or media requests regarding this Agreement and/or any related
matters concerning this Agreement without the prior written approval of the representatives of
both Parties listed in § 13.
22. ASSIGNMENT: The rights and obligations hereunder are personal to the Parties and may not be
transferred, assigned, or subcontracted without the prior written consent of both Parties. Any
attempt at assignment, transfer, or subcontracting without such consent shall be void. All
assignments, subcontracts, or Subcontractors approved by Contractor or the State are subject to
all of the provisions hereof. Contractor shall be solely responsible for all aspects of
subcontracting arrangements and performance.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
Page 5 of 6
CMS 121869
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in duplicate originals
on the dates shown below their respective signatures. Persons signing for the Parties hereby swear and
affirm that they are authorized to act on the Party's behalf and acknowledge that both Parties are relying
on the representations to that effect.
WELD COUNTY
BOARD OF COUNTY COMMISSIONERS
By:
WE D COUNTY, COL O RADO
JUG
arbara Kirkmeyer Chair
ATTEST: '‘elitiV ;iik
Clerk to the Board
Clerk t•' : oard
Date: DEC 12 2018
STATE OF COLORADO
John W. Hickenlooper, GOVERNOR
Governor's Office of Information Technology
Suma Nallapati, Secretary of Technology and
State Chief Information Officer
❑ Brenda Berlin, Deputy Chief Information
Officer and Chief Financial Officer
O'Laura Calder, Deputy Chief Financial
Officer
Date: t?.A4;4
Page 6 of 6
020/1- 4/6/6 (/-)
Exhibit A - OIT/ViaWest Sublease
CMS 95557
STATE OF COLORADO
DEPARTMENT OF PERSONNEL AND ADMINISTRATION
OFFICE OF THE STATE ARCHITECT
REAL ESTATE PROGRAMS
AMENDED AND RESTATED SUBLEASE AGREEMENT [IMPROVED REAL PROPERTY]
SUBLESSOR
SUBLESSEE
LOCATION
ViaWest, Inc.
The State of Colorado, acting by and through its Governor's
Office of Information Technology
12500 East Arapahoe Road, Unit A, Centennial, Colorado
80112 (eFORT)
STATE OF COLORADO
DEPARTMENT OF PERSONNEL AND ADMINISTRATION
OFFICE OF THE STATE ARCHITECT
REAL ESTATE PROGRAMS
AMENDED AND RESTATED SUBLEASE AGREEMENT [IMPROVED REAL PROPERTY]
TABLE OF CONTENTS
TEM
1. PREMISES, TERM, RENT
2. SERVICES
3. INTERRUPTION OF SERVICES
4. WORK REQUIREMENTS
5. SUBLESSOR'S REPRESENTATIONS
6. SUBLESSOR'S LEASEHOLD INTEREST
7. SUBLEASE ASSIGNMENT
8. EMINENT DOMAIN, TERMINATION OF SUBLEASE
9. DAMAGE AND DESTRUCTION
10. HOLDING OVER
11. FISCAL FUNDING
12. FEDERAL FUNDING
13. NOTICE
14. CONSENT
15. SUBLESSEE'S TAX EXEMPT STATUS
16. SUBLESSEE LIABILITY EXPOSURE
17. SECURITY DEPOSIT
18. INSURANCE
19. CONVEYANCE OF THE PREMISES, ASSUMPTION OF
SUBLEASE, ATTORNMENT AND NON -DISTURBANCE
20. COLLOCATION
21. INDEPENDENT CONTRACTOR
22. NO VIOLATION OF LAW
23. COLORADO SPECIAL PROVISIONS
24. BROKER REPRESENTATION
25. GENERAL PROVISIONS
26. ADDITIONAL RENT
27. ADDITIONAL PROVISIONS
28. SIGNATURES
EXHIBITS:
Exhibit A — Premises
Exhibit B — Additional Services
Exhibit C — Notice of Assignment of Sublease Form
Exhibit D — Premises Improvements
Exhibit E — Commission Sharing Between Sublessee and the Real
Estate Support Services Vendor
Exhibit F — IT Specific Provisions
Exhibit G — Sublessor Service Level Agreement
Exhibit H -- Premises Rules
Exhibit I — Confidentiality of Taxpayer Information Certification
Exhibit J — Prime Lease
PAGE
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SUBLEASE AGREEMENT
[Improved Real Property]
The printed portions of this form, except bold additions, have been reviewed
by the State of Colorado Attorney General and approved by the State Controller.
All additions to this form must be in bold type. All deletions must be shown by strike -through.
THIS AMENDED AND RESTATED SUBLEASE AGREEMENT ("Sublease") entered into by and
between ViaWest. Inc., a Colorado corporation whose address or principal place of business is 6400
South Fiddlers Green Circle, Suite 200. Greenwood Village, Colorado 80111, hereinafter referred to
as "Sublessor", and THE STATE OF COLORADO, acting by and through the Governor's Office of
Information Technology, whose address is 601 East 18th Avenue. Suite 250. Denver. Colorado
80203, hereinafter referred to as "Sublessee" or the "State". Both Sublessor and Sublessee shall be
hereinafter referred to as "Parties" to this Sublease.
WITNESSETH:
WHEREAS, Arapahoe II LL, LLC ("Prime Lessor"), as landlord, currently leases to Sublessor
ViaWest, Inc. (Sublessor herein), as tenant, the land and improvements at 12500 East Arapahoe
Road, Centennial, Colorado 80112 (the "Building") for a term that will end on April 30, 2026, unless
sooner terminated pursuant to the terms of the Prime Lease described below in Article 6 of this
Sublease; and
WHEREAS, Sublessor currently subleases the Premises defined below from Sublessor, and uses
the same as a computer data center and office space for State agencies pursuant to a certain
Sublease Agreement dated March 1, 2006, CMS #33952 (the "Original Sublease"), as amended by
the First Amendment to Sublease dated July 28, 2011, CMS #33957 (the "First Amendment"), and
the Second Amendment to Sublease dated October 12, 2011, CMS #37149 (the "Second
Amendment"). The Original Sublease, together with the First Amendment and the Second
Amendment are collectively referred to herein as the "Amended Sublease"; and
WHEREAS, the Parties wish to further amend and restate the Amended Sublease so that
Sublessor will sublease the Premises defined herein to Sublessee and Sublessee shall sublease
the same from Sublessor pursuant to the terms of this Sublease; and
WHEREAS, Authority to enter into this Sublease exists in the Law, and funds have been budgeted,
appropriated and otherwise made available and a sufficient unencumbered balance thereof remains
available for payment. • Required approvals, clearance and coordination have been accomplished from
and with appropriate agencies.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties hereto agree
as follows:
This Sublease amends and restates the Amended Sublease, in its entirety, and upon the Effective
Date hereof, the Amended Sublease shall be of no further force or effect.
1. PREMISES, TERM, RENT.
(A) Sublessor hereby subleases and demises unto Sublessee approximately twelve thousand,
one hundred sixty-seven (12.167) rentable square feet; the Premises being as shown on the plat
attached hereto, made a part hereof and marked "Exhibit A", hereinafter referred to as "Premises," within
the Building designated as 12500 East Arapahoe Road. Unit A. Centennial. Colorado 80112. The
Premises are also known and described as "e -FORT or eFORT."
(B) TO HAVE AND TO HOLD the same, together with all appurtenances, unto Sublessee, for the
five-year term beginning the later of the first day of the month following the State's execution of this
Page 1 0114
Agreement, or the date the Colorado State Controller approves the Sublease ("Commencement Date"),
and ending on the date that Is sixty (60) months later, at and for a monthly rental (the "Monthly Rent")
for the full term as shown below.
Sublessee shall have a one (1) time opportunity to reduce the amount of data center ("DC")
space by approximately 2,000 square feet starting in Year 4 (months 37-48 and months 49-80) of
this Sublease. If Sublessee exercises this option, the data center footprint shall be approximately
four thousand, five hundred (4,500) square feet of raised floor space on the western end of the
computer room floor, where the unoccupied/free/vacant space is on the Effective Date of this
Sublease, as shown on the attached Exhibit A, Premises. Sublessee must make the election to
reduce no later than the last day of the 24th month of the term, in which event the reduction will be
effective as of the first day of the 37th month of the term. The allocation of the data center space
in connection with a reduction must be mutually agreed by Sublessor and Sublessee, such
agreement not to be unreasonably withheld, conditioned or delayed. Sublessee shall bear all
costs of procuring and installing cage materials, card readers and biometric readers for the
reduced space.
(C) If Sublessee DOES NOT elect to reduce the amount of data center space in Years 4 and 5
of this Sublease, the Monthly Rent shall be as follows:
5 -Year Term — No space reduction
Annual
Rent
Taxes
Adiusted
Monthly
Total
Rent
RSF
Term Dates
Months
RSF
RSF
RSF
Rent
Term Rent
12,167
Commencement Date -
06/30/17
TBD
$118.35
$2.86
$115.49
$117,097,24
TBD
12,167
07/01/17 - 06/30/18
12
$120.72
$2.86
$117.86
$119,500.22
$1,434,002.62
12,167
07/01/18 - 06/30/19
12
$124.34
$2.86
$121.48
$123,170.60
$1,478,047.16
12,167
07/01/19-06/30/20
12
$128.07
$2.86
$125.21
$126,952.51
$1,523,430.07
12,167
07/01/20 - 06/30/21
12
$131.91
$2.86
$129.05
$130,845.95
$1,570,151.35
12,167
07/01/21— last day of
60th month after
commencement date
TBD
$133.20
$2.86
$130.34
$132,153.90
TBD
"RSF" means Rentable Square Feet.
(D) If Sublessee DOES elect to reduce the amount of data center space in Years 4 and 5 of
this Sublease, the Monthly Rent shall be as follows:
5 -Year Term — One-time data center space reduction
Page 2 of 14
Annual
Taxes
Adiusted
Monti
Total
Rent
l_tl
RSF
Term Dates
Months
RSF
RSF
RSF
Rent
Term Rent
12,167
Commencement Date -
06/30/17
TBD
$118.35
$2.86
$115.49
$117,097.24
TBD
12,167
07/01/17 - 06/30/18
12
$120.72
$2.86
$117.86
$119,500.22
$1,434,002.62
12,167
07/01/18-06/30/19
12
$124.34
$2.86
$121.48
$123,170.60
$1,478,047.16
12,167
07/01/19 -10/31/19
4
$128.07
$2.86
$125.21
$126,952.51
$507,810.02
10,118
11/01/19 - 06/30/20
8
$128.07
$2.86
$125.21
$105,572.90
$844,583.19
10,118
07/01/20-06/30/21
12
$131.91
$2.86
$129.05
$108,810.66
$1,305,727.90
10,118
07/01/21— last day of
60th month after
commencement date
TBD
$133.20
$2.86
$130.34
$109,898.34
TBD
* "RSF" means Rentable Square Feet.
(E) in addition to the applicable monthly rent set forth above, Sublessee shall be
responsible for payment of:
(I) all electric power utilized by Sublessee, multiplied by a monthly Power Usage
Effectiveness ("PUE") charge of 1.4. Sublessor shall bill Sublessee for power and
PUE charges monthly, in arrears;
(ii) $1,053.57 per month, for a total of 4 years, payable together with the monthly
rent, for the installation of 14 IP cameras (1 in each row) as set forth on Exhibit D
(the "Camera Fee");
(iii) any Remote Hands services used by Sublessee in accordance with the chart
below, and Exhibit B, which shall be billed by Sublessor to Sublessee monthly, in
arrears:
Type of Remote Hands
Per -hour Charge
g e
Tier 1
First Twenty hours free; each additional hour
thereafter $95 per hour
Tier 2
$150 per hour
(iv) any applicable installation charges for non -State Wide Area Network cross
connect services as set forth below, which shall be billed by Sublessor to
Sublessee monthly, in arrears:
POTS and ISDN BRI = $45.00
T1 and ISDN PRI = $145.00
100BaseT Ethernet = $145.00
DS3 = $195.00
Fiber Optic = $245.00; and
Page 3 of 14
(v) such other charges as may be agreed by the parties in connection with the
provision of additional services or the reimbursement of costs incurred by Sublessor on
Sublessee's behalf.
(F) The Premises is to be used and occupied as a data center, office and storage space. Payment
of the Monthly Rent and the Camera Fee shall be made on the first of each month during the term hereof,
to Sublessor at:
ViaWest, Inc.
6400 South Fiddlers Green Circle
Suite 2000
Greenwood Village, Colorado 80111
or at such place as Sublessor from time to time designates by notice as provided herein, subject to the
limitations and conditions set forth in Article 11, Fiscal Funding and Article 12, Federal Funding, herein.
If the term herein commences on a day other than the first day of a calendar month, then Sublessee
shall pay to Sublessor the rental for the number of days that exist prior to the first day of the succeeding
month, with a similar adjustment being made at the termination of the Sublease.
2. SERVICES.
(A) Sublessor Provided Services: Sublessor shall provide to Sublessee during the occupancy of
said Premises, as a part of the rental consideration, the following services comparable to those provided
by other office buildings of similar quality, size, age and location, in the Denver metropolitan area
submarket. The services shall include but not necessarily be limited to the following:
1) Services to Premises.
(i) Heat, ventilating and air conditioning (HVAC) services in quantities and distributions
sufficient for Sublessee's use of the subleased Premises.
(ii) Sublessor shall provide Building standard janitorial services. Janitorial services five (5)
times per week, including interior and exterior window washing (exterior window washing a
minimum of two (2) times per year);
(iii) Electric power sufficient to supply up to 120 watts per square foot as described in
Exhibit G, Section 1Z.
(iv) Fire Detection and Suppression, including a certified data center smoke detection system
and clean agent fire extinguishers placed throughout the facility.
(v) Replacement of Building standard fluorescent tubes, light bulbs and ballasts as required
from time to time as a result of normal usage.
2) Building Service.
(i) Domestic running water and necessary supplies in washrooms sufficient for the
normal use thereof by occupants in the Building;
(ii) Access to and egress from the Premises, including repair and replacement
customary for buildings of similar age and quality, if included in the Budding;
Page 4 of 14
(iii) Snow removal, sidewalk repair and maintenance, landscape maintenance and trash
removal services;
(iv) HVAC, lighting, electric power, domestic running water and janitorial service in those
areas of the Building designated by Sublessor for use by Sublessee, in common
with all tenants and other persons in the Building during normal business hours, but
under the exclusive control of Sublessor;
(v) Sublessor shall at all times be responsible for paying real estate taxes and
assessments, including real property taxes, special improvement district taxes or fees
or other special district taxes or charges for which Sublessee is not eligible for a tax
exemption, subject to Article 15. Sublessee shall be responsible for all taxes and
assessments on Sublessee's personal property, if any.
3) Maintenance, Repair and Replacement.
(i)
Sublessor shall operate, maintain, repair and replace the systems, facilities and
equipment necessary for the proper operation of the Building and for provision of
Sublassor's services under Article 2. (A) 1) and 2) above and shall maintain and
repair the foundations, structure and roof of the Building and repair damage to the
Building.
4) Additional Services.
(I)
Maintenance of parking lot and/or structure, maintenance of the external lighting
devices for the Building parking lot and/or structure. Maintenance, repair and
replacement of Premises Improvements for damage caused by shifting or leaking of
the foundation or of any other structural aspect or system of the Building.
(ii) Maintenance of the Premises in good repair and in tenantable condition during
the term of this Sublease. Sublessor shall have the right to enter the Premises
at reasonable times for the purpose of making necessary inspections, repairs or
maintenance providing prior notice of at least 5 working days has been
posted in accordance with Exhibit H. In the event of damage arising from the
act or negligence of Sublessee, any other State Agency, or their respective
agents or employees, Sublessor shall have the right to seek reimbursement from
Sublessee for any repairs made by Sublessor arising from such damage.
(iii) Onsite security will be maintained in accordance with Exhibit F and Exhibit
H.
(iv) Sublessor shall obtain on a yearly basis Dual -standard SSAE 16 and ISAE
3402 Service Organization Control (SOC) 1 Type II, SOC 2 Type II, and SOC
3 reports covering the Premises as well as PCI DSS Sections 9 and 12, and
HIPAA Reports of Compliance covering the Premises. Sublessor will
provide copies of all such reports of compliance pertaining to the Premises
upon request.
(v) Remote Hands. Sublessor shall provide Remote Hands Services upon
request by Sublessee as set forth on Exhibit B.
(vi) The "normal business hours" of operation of the Building shall be 24 x 7 x 365.
(B) Sublessee Provided Services: None.
Page 5 of 14
3. INTERRUPTION OF SERVICES. The parties agree that Sublessor shall provide the Services in
accordance with Exhibit G, "Service Levels." Notwithstanding anything in this Sublease to the contrary, if
there is- an Interruption in essential services to the Premises, which essential services are set forth in
Exhibit G. Sublessee shall be entitled to rent credits as set forth in Exhibit G. In addition, If any such
interruption in essential services continues for a period of ninety (90) days, Sublessee may cancel and
terminate this -Sublease without penalty. The parties acknowledge and agree that the services to be
provided to Sublessee by Sublessor pursuant to this sublease are a material component of the benefit for
which Sublessee is paying valuable consideration and that the rent credits and other remedies set forth
on Exhibit G are sufficient consideration for any such interruptions to the essential services to the
Premises.
4. WORK REQUIREMENTS. All Sublessee finish alterations In the Premises, now and hereafter
undertaken, shall be designed and constructed in accordance with the technical design specifications of
the Uniform Federal Accessibility Standards, latest edition. Prior to the Premises being occupied by
Sublessee, Sublessor agrees to the Premises Improvements described in Exhibit I], attached hereto
and made a part hereof.
5. SUBLESSOR'S REPRESENTATIONS.
(A) Sublessor represents that either:
1) no "asbestos response action", pursuant to that portion of the Colorado Air Quality Control
Commission, Regulation 8 entitled Emission Standards for Asbestos, hereafter referred to as "Regulation
8", is contemplated as a part of the Sublessee finish for this Sublease; or
2) in the event that an "asbestos response action" is contemplated as a part of the Premises
Improvements for this Sublease, Sublessor agrees to fully cooperate with Sublessee in Sublessee's
exercise of its duties and responsibilities in accordance with Section V of Part B of Regulation 8.
(B) Sublessor must meet all local codes and regulations applicable to Sublessor with regard to fire
and life safety during the term of the State of Colorado's occupancy of the Premises as mandated by local
authorities.
6. SUBLESSOR'S LEASEHOLD INTEREST.
(A) Sublessor warrants and represents itself to be the tenant of the subleased Premises, by
reason of the following:
(i) 12650 Arapahoe, LLC ("Original Lessor"), as lessor, and FirstWorld Communications,
Inc., n/kla Verado Holdings, inc, ("Original Lessee"), as lessee, entered into a certain lease
dated April 21, 1999, as amended by that First Amendment to Lease dated March 14, 2000, that
Second Amendment to Lease dated March 12, 2002, that Third Amendment to Lease dated
February 28, 2006, that Fourth Amendment to Lease dated September 5, 2006, and that Fifth
Amendment to Lease dated May 20, 2015, all of which, as amended and assigned is the
"Original Lease".
(ii) Effective May 25, 2016, Arapahoe II LL, LLC acquired the Building and became Prime
Lessor.
(iii) The Original Lease, together with an Addendum to Lease of Space dated April 12, 1999
shall be referred to, together, as the "Prime Lease") relating to the leasing of certain premises
consisting of approximately 43,295 square feet of space in the building located at 12500 East
Arapahoe Road, Centennial, Colorado 80112 (the "Building"). A copy of the Prime Lease is
attached hereto as Exhibit J.
(iv) Prime Lessor is Original Lessor's successor in interest under the under the Prime
Lease, and Sublessor is Original Lessee's successor in interest under the Prime Lease.
Page 6 or 14
(B) Sublessor warrants and represents that the consent of Prime Lessor is not required in
accordance with the applicable provisions of the Prime Lease.
(C) During the term of this Sublease, Sublessor covenants and agrees to warrant and defend
Sublessee in the quiet, peaceable enjoyment and possession of the subleased Premises. The
terms of this Sublease are subject to and subordinate to the terms of the Prime Lease.
(D) The parties agree that in no event shall the term of this Sublease extend beyond the term
of the Prime Lease.
7. SUBLEASE ASSIGNMENT. Sublessee shall not assign this Sublease and shall not sublet the
Premises, and will not permit the use of said Premises to anyone, other than Sublessee, its agents or
employees, without the prior written consent of Sublessor.
8. EMINENT DOMAIN, TERMINATION OF SUBLEASE. If the Premises are taken via eminent
domain, in whole or In part, then either Party may cancel and terminate this Sublease and the current
rent shall be properly apportioned to the date of such taking. In such event the entire damages which may
be awarded shall be apportioned between Sublessor and Sublessee, as their Interests appear.
9. DAMAGE AND DESTRUCTION. If the Premises are rendered untenantable or unfit for
Sublessee's purposes by fire or other casualty, this Sublease will immediately terminate and no rent
shall accrue from the date of such fire or casualty. If the Premises are damaged by fire or other casualty
so that there is partial destruction of such Premises or such damage as to render the Premises partially
untenantable or partially unfit for Sublessee's purposes, either Party may, within five (5) days of such
occurrence, terminate this Sublease by giving written notice to the other Party. Such termination shall be
effective not less than fifteen (15) days from the date of mailing of the notice. Rent shall be apportioned to
the effective date of termination.
10. HOLDING OVER. Sublessee shall become a month -to -month tenant if Sublessee fails to vacate
the Premises upon expiration or sooner termination of this Sublease, provided, however, in no event
shall Sublessee holdover its tenancy beyond the term of the. Prime Lease. The rent to be paid by
Sublessee during such continued occupancy shall be one hundred twenty-five percent (125 %) of the
rent being paid by Sublessee as of the date of expiration or sooner termination plus applicable power
and PUE fees accruing during the holdover period. Sublessor and Sublessee each hereby agree to
give the other Party at least thirty (30) days written notice prior to termination of any holdover tenancy.
11. FISCAL FUNDING.
(A) As prescribed by State of Colorado Fiscal Rules and §23(B) below, this Sublease Is
dependent upon the continuing availability of funds beyond the term of the State's current fiscal period
ending upon the next succeeding June 30, as financial obligations of the State of Colorado payable after
the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and
otherwise made available. While the act of appropriation is a legislative act, Sublessee will take
appropriate actions under the laws applicable to Sublessee to timely and properly budget for, request of
and seek and pursue appropriation of funds from the General Assembly of the State of Colorado
permitting Sublessee to make payments required hereunder during the period to which such
appropriation applies. If funds are not appropriated, this Sublease shall terminate at the end of the then
current fiscal year, with no penalty or additional cost to Sublessee. Sublessee shall notify Sublessor of
such non -allocation of funds by sending written notice thereof to Sublessor forty-five (45) days prior to
the effective date of termination.
(B) Sublessee's obligation to pay rent hereunder constitutes a current expense of Sublessee
payable exclusively from Sublessee's funds and shall not in any way be construed to be a general
obligation indebtedness of the State of Colorado or any agency or department thereof within the meaning
of any provision of §§ 1,2,3,4, or 5 of Article XI of the Colorado Constitution, or any other constitutional or
statutory limitation or requirement applicable to the State concerning the creation of indebtedness.
Neither Sublessee, nor Sublessor on its behalf, has pledged the full faith and credit of the State, or any
Page 7 of 14
agency or department thereof to the payment of the charges hereunder, and this Sublease shall not
directly or contingently obligate the State or any agency or department thereof to apply money from, or
levy or pledge any form of taxation to, the payments due hereunder.
12. FEDERAL FUNDING. If any or all funds for payment of this Sublease are provided by the
Federal Government, this Sublease is subject to and contingent upon the continuing availability of
Federal funds, and if such funds are not made available, Sublessee may unilaterally terminate this
Sublease at the end of any month after providing ninety (90) days written advance termination notice to
Sublessor.
13. NOTICE. Any notice required or permitted by this Sublease may be delivered in person or sent
by registered or certified mail, return receipt requested, to the Party at the address as hereinafter
provided, and if sent by mail it shall be effective when posted in the U.S. Mail Depository with sufficient
postage attached thereto:
Sublessor:
ViaWest, Inc.
6400 South Fiddlers Green Circle
Suite 2000
Greenwood Village, Colorado 80111
Sublessee:
STATE OF COLORADO
Governor's Office of Information Technology
601 East 18th Avenue, Suite 250
Denver, CO 80203
With a copy to:
Office of the State Architect
Real Estate Programs
1525 Sherman Street, Suite 112
Denver, CO 80203
Notice of change of address shall be treated as any other notice.
14. CONSENT. Unless otherwise specifically provided, whenever consent or approval of Sublessor
or Sublessee is required under the terms of this Sublease, such consent or approval shall not be
unreasonably withheld or delayed and shall be deemed to have been given if no response is received
within thirty (30) days of the date the request was made. If either Party withholds any consent or approval,
such Party shall, after written request, deliver to the other Party a written statement giving the reasons
therefore.
15. SUBLESSEE'S TAX EXEMPT STATUS. The Parties acknowledge CRS §39-3-124(1)(b),
effective January 1, 2009, exempts the Premises from levy and collection of property tax including
Assessed Tax, Special Assessment Tax, Maintenance District, Local Improvement Assessment, Fees
and Interest (collectively "Taxes") while leased by Sublessee for State purposes and that Sublessor
shall not receive a levy for property taxes from the County Assessor on the Premises occupied by
Sublessee during the term of the Sublease and any extensions thereof. Sublessee shall timely file a
copy of the Sublease, and any extensions or amendments thereof, with the County Assessor. If the
Sublease terminates prior to the end date provided for in Article 1(B), or any extension or amendments
thereof (early termination), Sublessee shall timely file notice of the early termination date with the County
Assessor.
In the event that, and for so long as, Sublessor receives an abatement of Taxes from the County
Assessor, by reason of Sublessee's operation as an agency or department of the State of
Colorado, Sublessee shall receive a credit against its Monthly Rent equal to the amount of the
reduction in Taxes on a monthly prorated basis.
Page 8 of 14
16. SUBLESSEE LIABILITY EXPOSURE. Notwithstanding any other provision of this Sublease to
the contrary, no term or condition of this Sublease shall be construed or Interpreted as a waiver of any
provision of the Colorado Governmental Immunity Act, CRS §24-10-101 et seq. Liability for claims for
injuries to persons or property arising out of the negligence of the State of Colorado, its departments,
institutions, agencies, boards, officials and employees is controlled and limited by the provisions of CRS
§24-10-101, et seq., and CRS §24-30-1501, et seq., All provisions of this Sublease are controlled, limited
and otherwise modified to limit any liability of Sublessee in accordance with the foregoing cited statutes.
Pursuant to those statutes, Sublessee's liability is limited to payment of liability daims and expenses
related thereto arising from alleged negligent acts or omissions of Sublessee and of its public employees
which occurred or are alleged to have occurred during the performance of their duties and within the
scope of their employment, except where such acts or omissions are willful and wanton. Such claims shall
be subject to the limitations of the Colorado Governmental Immunity Act. EXCEPT FOR CLAIMS OR
DAMAGES, INCLUDING CONSEQUENTIAL DAMAGES, ARISING OUT OF BODILY INJURY
(INCLUDING DEATH) AND DAMAGE TO TANGIBLE PROPERTY, NEITHER PARTY OR ITS
EMPLOYEES, AFFILIATES, CONTRATORS OR AGENTS BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR
IMPUTED PROFITS, REVENUE, DATA OR USE, REGARDLESS OF THE LEGAL THEORY UNDER
WHICH SUCH LIABILITY IS ASSERTED, INCLUDING WITHOUT LIMITATION, LEGAL THEORIES OF
CONTRACT, TORT OR STRICT LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBLITY OF SUCH DAMAGES.
17. SECURITY DEPOSIT. Sublessee shall not provide a security deposit to Sublessor.
18. INSURANCE.
(A) Sublessor Insurance. Sublessor and Sublessor's contractors shall carry and maintain the
following insurance coverage with respect to the Premises during the Sublease term:
1) Commercial General Liability Insurance covering operations by, or on behalf of, Sublessor on
an occurrence basis against claims for bodily injury, property damage and personal injury liability with
minimum limits of (a) $1,000,000 each occurrence; (b) $2,000,000 general aggregate; (c) $2,000,000
products and completed operations aggregate.
2) Property Insurance covering the Building, including the Premises, its equipment, and
Sublessor's Interest In improvements and betterments on an "All Risk" basis, Including where
appropriate the perils of Flood and Earthquake. Coverage shall be written with a Replacement Cost
valuation and Include an agreed value provision. The policy shall also include a rental income extension.
3) Workers' Compensation Coverage for employees of Sublessor as required by law and
employer's liability insurance.
The limitations of liability in this Sublease shall apply only in excess of the specific insurance
policy limits to be maintained under this Section 18. No insurance policy shall be interpreted as being
subject to any limitations of liability stated above up to those limits, it being understood that this limitation
of liability provision will apply to any policy limits that may be in excess of the limits required under this
Section 18.
All policies shall be written with carriers approved to do business in the State of Colorado with an
A.M. Best Rating of at least A- VII.
(B) Sublessee Insurance. Sublessee shall provide insurance on its inventory, equipment, and all
other personal property located on the Premises against loss resulting from fire or other casualty at
Sublessee's sole cost. Sublessee shall have the right to provide such insurance under a self-insurance
program, or, at any time during the term of this Sublease, to provide such insurance through an
Page 9 of 14
insurance company. With respect to general liability, Sublessee is self -insured in accordance with the
provisions of the Cdorado Governmental Immunity Act and the Colorado Risk Management Act, CRS
§24-30-1501, et seq.
19. CONVEYANCE OF THE PREMISES, ASSUMPTION OF SUBLEASE, ATTORNMENT AND
NON -DISTURBANCE.
(A) If Sublessor assigns this Sublease, (all collectively called "Assignment"), within ten (10) days of
the Assignment of the Sublease, Sublessor shall provide Sublessee notice thereof pursuant to Article
13 of this Sublease in a form substantially in conformity with that described in the attached Exhibit C.
Said notice shall include the name and address of the New Sublessor (any assignee of this Sublease, or
any other successor owner or assignee of Sublessor through foreclosure or deed in lieu of foreclosure
[the "New Sublessor"]), the New Sublessor's Social Security or Federal Employer's Identification
Number, and documentation evidencing the Sublease Assignment, whether it be an assignment and
assumption of Sublease, deed or other transfer.
(B) If Sublessor fails to provide Sublessee the notice of Assignment provided for in the preceding
paragraph (A) and Sublessee receives written notice from a third -party claiming to be the New
Sublessor under a transaction constituting an Assignment of Sublease, and the New Sublessor
provides Sublessee the evidence of New Sublessor's claim at the address provided for in Article 13., If
Sublessor does not contest the New Sublessor's claim in writing to Sublessee within ten (10) days from
the date of Sublessee's written Notice to Sublessor, Sublessee may recognize the New Sublessor as
Sublessor under the Sublease and shall thereafter pay the monthly rent and other obligations under the
Sublease to the New Sublessor and Sublessor shall have waived any further rights under the
Sublease and shall be barred from further rights thereunder, including, but not limited to, the right to
receive rent.
(C) The New Sublessor's title, right and interest in the Premises, however acquired, shall be subject
to all Sublease provisions, including, not limited to, the non -disturbance of Sublessee's possession of
the Premises and Sublessee shall recognize the New Sublessor as Sublessor under the Sublease.
Sublessee's attornment to the New Sublessor shall not waive any rights of Sublessee against the prior
Sublessor. All payments previously made by Sublessee to the prior Sublessor and all other previous
actions taken by Sublessee under the Sublease shall be considered to have discharged those
obligations of Sublessee under the Sublease. The New Sublessor's acceptance of the rent payment
provided for in the Sublease shall constitute the New Sublessor's assumption of the Sublease and
obligations of the Sublessor's thereunder.
20. COLLOCATION. If the State builds, leases, or otherwise acquires a building for the purpose of
collocating State agencies in one area, or designates an existing State-owned building for such
collocation of Tenant Sublessee, this Lease Sublease may be terminated by Tenant Sublessee by
giving written notice to Landlord Sublessor not less than sixty (60) days prior to the termination date.
Tenant Sublessee shall not be liable to further perform any of its obligations under this Lease Sublease,
including, but not limited to rental payments, following the date of such termination.
21. INDEPENDENT CONTRACTOR. 4 CCR §801-2. The Sublessor shall perform its duties
hereunder as an independent contractor and not as an employee. Neither Sublessor nor any agent or
employee of Sublessor shall be or shall be deemed to be an agent or employee of the State. Sublessor
shall pay when due all required employment taxes and income tax and local head tax on any monies paid
by the State pursuant to this Sublease. Sublessor acknowledges that Sublessor and its employees are
not entitled to unemployment insurance benefits unless Sublessor or third party provides such coverage
and that the State does not pay for or otherwise provide such coverage. Sublessor shall not have
authorization, express or implied, to bind the State to any agreements, liability, or understanding except
as expressly set forth herein. Sublessor shall provide and keep in force Workers' Compensation (and
provide proof of such insurance when requested by the State) and unemployment compensation
insurance in the amounts required by law, and shall be solely responsible for the acts of Sublessor, its
employees and agents.
Page 10 of 14
22. NO VIOLATION OF LAW.
(A) CRS §18-8-301, et seq. and CRS §18-8-401, et seq. The signatories hereto aver that they are
familiar with CRS §18-8-301, et seq., (Bribery and Corrupt Influences) and CRS §18-8-401, et seq.,
(Abuse of Public Office), and that no violation of such statutes has occurred under this Sublease.
(B) CRS §24-76.5-101. Sublessor, if a natural person eighteen (18) years of age or older, hereby
swears and affirms under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present In
the United State pursuant to federal law, (b) shall comply with the provisions of CRS §24-76.5-101 et
seq., and (c) has produced one form of identification required by CRS §24-76.5-103 prior to the effective
date of this Subbase.
23. COLORADO SPECIAL PROVISIONS
(A). CONTROLLER'S APPROVAL. CRS §24-30-202(1). This contract shall not be valid until it has
been approved by the Colorado State Controller or designee.
(B) FUND AVAILABILITY. CRS §24-30-202(5.5). Financial obligations of the State payable after the
current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and
otherwise made available.
(C). CHOICE OF LAW. Colorado law, and rules and regulations issued pursuant thereto, shall be
applied in the interpretation, execution, and enforcement of this Sublease. Any provision included or
incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and
void. Any provision incorporated herein by reference which purports to negate this or any other Special
Provision in whole or in part shall not be valid or enforceable or available in any action at law, whether by
way of complaint, defense, or. otherwise. Any provision rendered null and void by the operation of this
provision shall not invalidate the remainder of this contract, to the extent capable of execution. The
Sublessor shall strictly adhere to all applicable federal and State laws, rules, and regulations that have
been or may hereafter be established, including those dealing with discrimination and unfair employment
practice, in performing its obligations under the Sublease.
(O) SUBLESSORNENDOR OFFSET. CRS §§24-30-202 (1) and 24-30-202.4. Subject to CRS §24-
30-202.4 (3.5), tie State Controller may withhold payment under the State's vendor offset Intercept
system for debts owed to State agencies for. (a) unpaid child support debts or child support arrearages;
(b) unpaid balances of tax, accrued interest, or other charges specified in CRS §39-21-101, et seq.; (c)
unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) amounts
required to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the
State as a result of final agency determination or judicial action.
(E) EMPLOYEE FINANCIAL INTEREST. CRS §24-18-201 and CRS §24-50-507. The signatories
aver that to their knowledge, no State employee has any personal or beneficial interest whatsoever in the
service or property described herein.
24. BROKER REPRESENTATION: Sublessor and Sublessee acknowledge that Jones Lang
LaSalle Incorporated is acting as a Sublessee Agent on behalf of Sublessee in this transaction.
Further, Sublessor and Sublessee acknowledge that in consideration of Jones Lang LaSalle
Incorporated ading, as a Sublessee Agent on behalf of the State of Colorado In this transaction, will
receive a leasing commission as set forth on Exhibit E.
25. GENERAL PROVISIONS
A Binding Effect. All provisions herein contained, including the benefits and burdens, shall extend
to and be binding upon the Parties' respective heirs, legal representatives, successors, and assigns.
Page 11 of 14
B. Captions. The captions and headings in this Sublease are for convenience of reference only,
and shall not be used to interpret, define, or limit Its provisions.
C. Construction Against Drafter. In the event of an ambiguity in this Sublease the rule of
Sublease construction that ambiguities shall be construed against the drafter shall not apply and the
Parties hereto shall be treated as equals and no Party shall be treated with favor or disfavor.
D. Counterparts. This Sublease may be executed in multiple identical original counterparts, all of
which shall constitute one agreement.
E. Entire Understanding. This Sublease represents the complete integration of all understandings
between the Parties and all prior representations and understandings, oral or written, are merged herein.
Prior or contemporaneous additions, deletions, or other changes hereto shall not have any force or effect
whatsoever, unless embodied herein.
F. Jurisdiction and Venue. All suits or actions related to this Sublease shall be filed and
proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver.
G. Modification.
i. By the Parties. Except as specifically provided in this Sublease, modifications hereof
shall not be effective unless agreed to in writing by the Parties in an amendment hereto, properly
executed and approved in accordance with applicable Colorado State law, State Fiscal Rules,
and Office of the State Controller Policies, including, but not limited to, the policy entitled
MODIFICATbN OF LEASES -TOOLS AND FORMS.
N. By Operation of Law. This Sublease is subject to such modifications as may be
required by changes in Federal or Colorado State law, or their implementing regulations. Any
such required modification automatically shall be incorporated into and be part of this Sublease
on the effective date of such change, as if fully set forth herein.
H. Order of Precedence. The provisions of this Sublease shall govern the relationship of the
State and Sublessor. In the event of conflicts or inconsistencies between this Sublease and its exhibits
and attachments, including, but not limited to, those provided by Sublessor, such conflicts or
inconsistencies shall be resolved by reference to the documents in the following order of priority:
i. Colorado Special Provisions,
ii. Exhibit F, IT Specific Provisions
Exhibit H, Premises Rules
iv. Exhibit D, Premises Improvements
v. Exhibit G, ViaWest Service Level Agreement
vi. The remaining provisions of the main body of this Sublease
vii. Exhibit A, Premises
viii. Exhibit B, Additional Services
ix. Exhibit I, Confidentiality of Taxpayer Information Certification
x. Exhibit C, Notice of Assignment of Sublease, Assumption of Sublease by
New Sublessee
xi. Exhibit E, Commission Sharing Between the Sublessee and the real Estate
Support Services Team
xii. Exhibit J, Prime lease
I. Severability. Provided this Sublease can be executed and performance of the obligations of
the Parties accomplished within its intent, the provisions hereof are severable and any provision that is
declared invalid or becomes inoperable for any reason shall not affect the validity of any other provision
hereof, provided that the Parties can continue to perform their obligations under this Sublease in
accordance with its intent.
Page 12 0114
J. Survival of Certain Sublease Terms. Notwithstanding anything herein to the contrary,
provisions of this -Sublease requiring continued performance, compliance, or effect after termination
hereof, shall survive such termination and shall be enforceable by the State If Sublessor fails to perform
or comply as required.
K. Taxes Other than Real Property. The State is exempt from all federal excise taxes under IRC
Chapter 32 (No. 84-730123K) and from all State and local government sales and use taxes under CRS
§§39-26-101 and 201 et seq. Such exemptions apply when materials are purchased or services are
rendered to benefit the State; provided however, that certain political subdivisions (e.g., City of Denver)
may require payment of sales or use taxes even though the product or service is provided to the State.
Sublessor shall be solely liable for paying such taxes as the State is prohibited from paying or
reimbursing Sublessor for such taxes.
L. Third Party Beneficiaries. Enforcement of this Sublease 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 Lease Sublease are Incidental to the Sublease, and do not create any rights for such third
parties.
M. Waiver. Waiver of any breach under a term, provision, or requirement of this Sublease or any
right or remedy hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed
as a waiver of any subsequent breach of such term, provision or requirement, or of any other term,
provision, or requirement.
26. ADDITIONAL RENT. None
27. ADDITIONAL PROVISIONS. This sublease includes the IT SPECIFIC PROVISIONS set forth
In the attached Exhibit F.
Page 1343114
IN WITNESS WHEREOF, the Parties hereto have executed this Sublease
SUBLESSOR
VIAWES - IN
B
A. Guerriero
, General Counsel & Secretary
REAL ESTATE PROGRAMS
STATE OF COLORADO
John W. Hickenlooper, Governor
DEPARTMENT OF PERSONNEL &
ADMINISTRATION
Office of State Architect, For the Executive Director
By:
Date: 1Z
/g(
OFFICE OF RISK MANAGEMENT
STATE OF COLORADO
John W. Hickenlooper, Governor
DEPARTMENT OF PERSONNEL &
ADMINISTRATION
For the Executive Director
By: itfitel
State Risk Manager
Date:
LEGAL REVIEW
DEPARTMENT OF LAW
Cynthia Coffman, Colorado Attorney General
ATTORNEY GENERAL (or authorized Delegate)
By: /VIA
Date:
SUBLESSEE
STATE OF COLORADO
John W. Hickenlooper, GOVERNOR
Governor's Office of Information Technology
Suma Nallapati, Secretary of Technology and
State Chief Information Officer
By:
❑ Brenda Berlin, Deputy Chief Information Officer
and Chief Financial Officer
&du,
Date: /2/60
ALL LEASES MUST BE APPROVED BY THE STATE
CONTROLLER:
CRS 24-30-202 requires that the State Controller
approve all State contracts. This Sublease is not
valid until the State Controller, or such assistant as
he may delegate, has signed it. The Sublessor is not
authorized to begin performance until the Sublease
is signed and dated below. If performance begins
prior to the date below, the State of Colorado may
not be obligated to pay for the goods and/or services
provided.
STATE OF COLORADO
John W. Hickenlooper, Governor
STATE CONTROLLERS OFFICE
State Controller (or authorized Delegate)
By:
Date:
2/t/ii
Page 14 of 14
EXHIBIT A
PREMISES
Form — Improved Real Property Lease (Gross) Page A -1
Rev.1/2015
5818 sq. ft
Office/Common Space
Dock
Restrooms
(390 sq R)
Office
(1550 sq ft)
Storage j Staging Area
(1140 sq R)
Electrical
(380 sq ft)
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MIMBRIMIT
IZJ
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I.J
l.atr
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8549 sq. R
Data Center Space
EXHIBIT B
ADDITIONAL SERVICES
A. Description of Remote Hands Services. Remote Hands Services are available in two levels,
based upon the complexity of the work performed, as set forth below. ViaWest cannot guarantee the
availability of a technician for unscheduled Remote Hands Requests. ViaWest technician solely and
reasonably determines billable time for Remote Hands Services and such time is tracked in ViaWest's
ticket system. Time is rounded up to the nearest 20- minute increment for billing and is billed in the
aggregate on a monthly basis. Remote Hands services above the 20 hrs/mo. of Free Allotted
Remote Hands Service as specified in Section 1.E.iii, must be pre -approved by Sublessee
through the use of the ticket system to avoid unexpected charges.
(a) Tier 1 Remote Hands Service includes:
a. Basic command line telephone support (no systems configuration)
b. Vendor troubleshooting other than telecommunications services
c. Server reboot/power cycle
d. Confirmation of cabling, display and/or status lights (other than as related to an
installation)
e. Additional equipment installation
f. Cable or cabinet organization and cleanup
g. Move of power
(b) Tier 2 Remote Hands Service includes:
a. Application support for hosting (must be contracted service)
b. Software installation (software license must be present)
c. Hardware installation
d. Router configuration or review
e. IP routing support
f. Operating System support (Win2000, Win2K, Win2K3, Linux, BSD)
g. Troubleshooting for network, connectivity, or telecommunications carrier / circuit
h. DSU/CSU configuration
i. Network consultation
j. Security consultation beyond normal security requirements
k. Other project -based work
(c) NON -Billable services to be provided by Sublessor:
a. Simply escorting vendors into data center floorspace
b. Basic phone assistance not requiring entry to data center floorspace
c. General environmental observations and reports
d. Installation of new power whips and network infrastructure as part of Cabling and Cable
Management (Section C)
e. Datacenter Maintenance (Section D)
1. Confirmation of power
Form —Improved Real Property Lease (Gross) Page B -1
Rev.1/2015
g. Sublessee access to real-time monitoring of data center systems
B. Support. Sublessor will coordinate monthly operational reviews with management, to be scheduled
jointly by Sublessee and Sublessor, to include the following: Monthly operational review, SLA review,
installations, projected installations, escalation procedures and other items as deemed appropriate by
the parties. Sublessee shall be able to access account information by using Support Center, Sublessor's
online customer support portal.
C. Cabling and Cable Management
Sublessor will provide cabling and cable management, including Category 5 and/or Category 6
cabling from the State Wide Area Network to each cabinet environment based on the following
standard options to support Agency installations:
• Option 1 = Four x 100BaseT Ethernet connections delivered via Category 5 or Category 6
Ethernet cabling.
• Option 2 = Two x 100BaseT Ethernet connections delivered via Category 5 or Category 6
Ethernet cabling and two by Fiber Optic cabling.
In the event the current cable plant that connects the e-FOR3T location to the ViaWest demarcation
point requires additional capacity the parties agree to discuss the requirement and agree upon an
appropriate one-time charge for the required installation:
D. Datacenter Maintenance.
Sublessor shall provide preventative maintenance and repairs of all DC infrastructure, including:
1. HVAC systems: inspections performed monthly; maintenance
performed quarterly.
2. PDUs performed annually (infrared scan).
3. UPSs performed semi-annually.
4. Generator performed semi-annually, with standby generator
configured for major maintenance.
5. ATS performed annually.
6. Fire detection and suppression performed semi-annually.
7. Under floor cleaning and above cabinet cleaning performed semi-
annually.
8. Above floor cleaning performed weekly, preferably not during normal
business hours.
Maintenance items will be posted in a notice to Sublessee staff 5 business days prior to the planned
event.
Form —Improved Real Property Lease (Gross) Page B - 2
Rev.1/2015
EXHIBIT C
NOTICE OF ASSIGNMENT OF SUBLEASE
ASSUMPTION OF SUBLEASE BY NEW SUBLESSOR
Date:
, Sublessee
[Sublessee]
[Sublessee's Address for Notice
(See Art. 13 of Sublease)]
Re: Sublease for: [Sublease Address
dated (See Art. 1 of Sublease]
, Sublessor [Sublessor]
Dear Sublessee:
Pursuant to Article 13 of the above referenced Sublease, Sublessee is hereby notified that on
[date], the Sublease was assigned to:
[Name/Address of New Sublessor], the "New
Sublessor." The New Sublessor's W-9 is attached.
Evidence of the transaction constituting the Assignment of Sublease is by [mark as is appropriate]:
Assignment and Assumption of Sublease; _ Deed [Type of Deed]; Other [Specify}
; dated, which document is attached and made part hereof.
Sublessee's rental obligations after (date) should be paid to the New Sublessor at:
The signatory below affirms the information provided in this Notice is true and acknowledges the New
Sublessor has assumed the obligations of Sublessor under the Sublease.
By:
SUBLESSOR
By:
NEW SUBLESSOR
Enclosures
Form — Improved Real Property Lease (Gross) Page C -1
Rev. 1/2015
EXHIBIT D
PREMISES IMPROVEMENTS
(A) Surveillance Cameras. Sublessor shall procure and install fourteen (14) video surveillance
cameras within the Premises at locations to be designated by Sublessee. Each camera shall connect to
a switch to be provided by Sublessee. Sublessee shall be solely responsible for managing, monitoring
and maintaining the cameras, and Sublessee shall be solely responsible for recording and storing data
from the cameras. Sublessee shall pay the cost of the cameras as set forth in Section 1(E) of this
Sublease.
(B) Private Cage for Contraction Option. If Sublessee exercises Its option to reduce the data
center footprint in accordance with Section B of Article 1 of this Sublease, Sublessor shall construct a
security cage to enclose the data center in the reduced area. The security cage shall have a mesh topper
and dual factor authentication for entry, which shall include a card reader and biometric reader.
Sublessee shall be responsible for all costs of separating the reduced data center area, including
construction of the private cage and other improvements necessary for the use of the reduced data center
area. Sublessee shall be solely responsible for all costs of moving Sublessee's equipment into the
reduced data center footprint.
(C) Power Measurement. Sublessor shall measure power consumption in the original Premises
and in the space Sublessee may use after any space change In accordance with Section 1(B) of the
Sublease, but only if Sublessee exercises such right under Section 1(B), to ensure power consumption is
measured In accordance with Section 1(E) of the Sublease.
(D) PDU Installation. The Sublessor shall install a set of PDUs with a minimum 100 kVA capacity
for both A and B feeds. The placement of the new PDUs shall not reduce usable floor space and shall be
agreed upon by the Sublessee. Installation of new PDUs shall take place within 90 days of notification
from the Sublesse to the Sublessor.
Fonn — Improved Real Property Lease (Gross) Page D -1
Rev. 1/2015
EXHIBIT E
COMMISSION SHARING BETWEEN THE SUBLESSEE
AND THE REAL ESTATE SUPPORT SERVICES VENDOR
Pursuant to the contract for Real Estate Support Services between Jones Lang LaSalle and the
State dated July 1, 2014, Sublessor and Sublessee acknowledge that in consideration of Jones
Lang LaSalle acting as a Sublessee Agent on behalf of the State of Colorado in this transaction,
will receive a leasing commission of $279,884.54 of which 30% ($83,965.36) will be credited to
Sublessee and 70% of the leasing commission ($195,919.18) shall be remitted to Jones Lang
LaSalle upon the full execution of this Sublease.
Jones Lang LaSalle contracted with a data center consultant at the beginning of the project on
behalf of Sublessee at the cost of six thousand seven hundred fifty five dollars ($6,755.00). Jones
Lang LaSalle paid said consultant on behalf of Sublessee. Therefore, the amount credited to
Sublessee above shall be adjusted to the following:
• Total leasing commission = $279,884.54
• Sublessee adjusted leasing commission = $77,210.36
• Jones Lang LaSalle adjusted leasing commission = $202,674.18
In addition, if Sublessee does not execute on its right to reduce space by October 31, 2019, then
Sublessor remit to Jones Land LaSalle and Sublessee the following:
JonesLang LaSalle = $14,685.51
Sublessee = $6,293.79
Form — Improved Real Property Lease (Gross) Page E -1
Rev. 1/2015
EXHIBIT F
IT SPECIFIC PROVISIONS
This Exhibit F is part of that certain Amended and Restated Sublease Agreement, CMS #' SSS 9
("Sublease") by and between ViaWest, Inc. ("Sublessor" or "ViaWest") and the State of Colorado (the
"State") acting by and through its Governor's Office of Information Technology ("OIT"). In the event of a
conflict or inconsistency between the Sublease and its exhibits and attachments, such conflict or
inconsistency shall be resolved in the manner specified in §25.H (Order of Precedence) of the Sublease.
1. DEFINITIONS
The following terms as used herein shall be construed and interpreted as follows:
A. "Sublease" means this Sublease, its terms and conditions, attached Exhibits, documents
Incorporated by reference under the terms of this Sublease, and any future modifying
agreements, exhibits, attachments or references incorporated herein pursuant to Colorado State
law, Fiscal Rules, and State Controller Policies.
B. "Criminal Justice Information (CJI) Data" means information collected by criminal justice
agencies that is needed for the performance of their legally authorized, required function, which
includes, but is not limited to, wanted person information; missing person information; unidentified
person information; stolen property information; criminal history information; information compiled
in the course of investigation of crimes that are known or believed on reasonable grounds to have
occurred, including information on identifiable individuals; and information on identifiable
individuals compiled in an effort to anticipate, prevent, or monitor possible criminal activity.
C. "Deliverable" means the outcome to be achieved or output to be provided, in the form of a
tangible or Intangible object that is produced as a result of Sublessor's Work that is intended to be
delivered to the State by Sublessor. Examples of Deliverables Include, but are not limited to,
report(s), document(s), server upgrade(s) and software license(s), and may be composed of
multiple smaller deliverables.
D. "Federal Tax Information (FTI) Data" means federal or state tax returns, return information, and
such other tax -related Information as may be protected by State and federal law.
E. "Fiscal Year" means the State's fiscal year, which begins on July 1 of each calendar year and
ends on June 30 of the following calendar year.
F. "Force Majeure" means failures or delays in performance by a Party due to causes beyond its
reasonable control, including war, strikes, lockouts, fire, flood, storm, or other acts of God. Both
Parties agree to use their best efforts to minimize the effects of such failures or delays.
G. "Goods" means tangible material acquired, produced, or delivered by Sublessor either separately
or in conjunction with the Services Sublessor renders hereunder.
H. "Health Insurance Portability and Accountability Act (HIPAA) Data" means any information,
whether oral or recorded in any form or medium, that (I) is created or received by a health care
provider, health plan, public health authority, employer, life insurer, school or university, or health
care clearinghouse; and (ii) relates to the past, present, or future physical or mental health or
condition of any individual, the provision of health care to an individual, or the past, present, or
future payment for the provision of health care to an individual; and (iii) identifies the individual or
with respect to which there is reasonable basis to believe the information can be used to identify
the individual. HIPAA Data includes, but is not necessarily limited to, protected health information
as defined in 45 CFR § 160.103 and 45 CFR § 164.501.
i. "Incident" means an accidental or deliberate event that results in or constitutes an imminent
threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of
communication and information resources of the State pursuant to CRS § 24-37.5-401 et seq.
Incidents include, but are not limited to (i) successful attempts to gain unauthorized access to a
State system or State Information regardless of where such information is located; (Ii) unwanted
Form — Improved Real Property Lease (Gross) Page F -1
Rev. 112015
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 content.
J. "Party" means the State or Sublessor and "Parties" means both the State and Sublessor.
K. "Payment Card Information (PCI) Data" means any data related to card holders' names, credit
card numbers, or other credit card Information as may be protected by State and federal law.
L. "Personally Identifiable Information (P1I) Data" means information about an individual collected
by the State or any other governmental entity that could reasonably be used to identify such
individual as defined in CRS § 24-72-501(2) and includes, but is not limited to, any combination of
(I) first and last name, (Ii) first name or first initial and last name, (III) residence or other physical
address, (iv) electronic mail address, (v) telephone number, (vi) birth date, (vii) credit card
information, (viii) social security number, (ix) driver's license number, (x) identification card
number, or (xi) any other information that Identifies an individual personally.
M. "Services" means the required services to be performed by Sublessor pursuant to this Sublease.
N. "State Confidential Information" means all Information, data, records, and documentary
materials which are of a sensitive nature and belong to the State regardless of physical form or
characteristics, including but not limited to any non-public State records, sensitive State data,
protected State data, State personnel records, PII, FTI, PCI, and other information or data
concerning individuals, which has been communicated, furnished, or disclosed by the State to
Sublessor. Notwithstanding the foregoing, State Confidential Information shall not include State
Records.
O. "State Controller" means the Colorado State Controller or authorized designee of the Colorado
State Controller.
P. "State Information" means the combination of State Confidential Information and State Records.
Q. "State Records" means all information, data, records, and documentary materials which are not
sensitive and belong to the State regardless of physical form or characteristics, including but not
limited to any public State records, non -sensitive State data, and other information or data
concerning Individuals that is not deemed confidential but nevertheless belongs to the State,
which has been communicated, furnished, or disclosed by the State to Contractor which (i) is
subject to disclosure pursuant to the Colorado Open Records Act, CRS § 24-72-200.1, et seq.;
(Ii) is already known to Contractor without restrictions at the time of its disclosure by Contractor;
(Iii) is or subsequently becomes publicly available without breach of any obligation owed by
Contractor to the State; (iv) is disclosed to Sublessor, without confidentiality obligations, by a third
party who has the right to disclose such information; or (v) was independently developed without
reliance on any State Confidential Information. Notwithstanding the foregoing, State Records
shall not include State Confidential Information.
R. "Subcontractor" means any third party engaged by Sublessor to aid in performance of
Sublessor's obligations.
S. "Work" means the tasks and activities Sublessor is required to perform to fulfill its obligations
under this Sublease and its Exhibits, including the performance of the Services.
T. "Work Product" means the tangible or intangible results of Sublessor's Work, including, but not
limited to, software, research, reports, studies, data, photographs, negatives, or other finished or
unfinished documents, drawings, models, surveys, maps, materials, or work product of any type,
including drafts.
2. SUBLESSOR RECORDS
A. Maintenance
Sublessor shall make, keep, maintain, and allow inspection and monitoring by the State of a
complete file of all records, documents, communications, notes and other written materials, and
electronic media files, pertaining in any manner to the Work or to the delivery of Services or
Form Improved Real Property Lease (Gross) Page F - 2
Rev. 1/2015
Goods hereunder. Sublessor shall maintain such records until the last to occur of: (I) a period of
three (3) years after the date this Sublease expires or Is sooner terminated, or (ID final payment Is
made hereunder, or (iii) the resolution of any pending Sublease matters, or (iv) if an audit is
occurring, or Sublessor has received notice that an audit is pending, until such audit has been
completed and its findings have been resolved (collectively, the "Record Retention Period").
B. Inspection
Sublessor shall permit the State, the federal government, and any other duly authorized agent of
a governmental agency to audit, inspect, examine, copy, and/or transcribe Sublessor's records
related to the Work or to the delivery of Services or Goods hereunder during the Record
Retention Period for a period of three (3) years following termination of this Sublease or final
payment hereunder, whichever is later, to assure compliance with the terms hereof or to evaluate
performance hereunder. The State reserves the right to inspect the Work at all reasonable times
and places during the Sublease Term, including any extensions or renewals. If the Work fails to
conform to the requirements of this Sublease, the State may require Sublessor to promptly bring
the Work into conformity with Sublease requirements at Sublessor's sole expense. If the Work
cannot be brought into conformance by re -performance or other corrective measures, the State
may require Sublessor to take necessary action to ensure that future performance conforms to
Sublease requirements and exercise the remedies available under this Sublease, at law or in
equity, in lieu of or in conjunction with such corrective measures.
C. Monitoring
Sublessor shall permit the State, the federal government, and governmental agencies having
jurisdiction, in their sole discretion, to monitor all activities conducted by Sublessor related to the
Work or to the delivery of Services or Goods hereunder using any reasonable procedure,
including, but not limited to: internal evaluation procedures, examination of program data, special
analyses, on -site checking, formal audit examinations, or any other procedures. All monitoring
controlled by the State shall be performed in a manner that shall not unduly interfere with
Sublessor's performance hereunder.
D. Final Audit Report
If an audit is performed on Sublessor's records for any Fiscal Year covering a portion of the
Sublease Term, Sublessor shalt submit a copy of the final audit report to the State or its principal
representative at the address specified herein. Sublessor shall ensure the provisions of this
paragraph apply to any subcontract related to performance under the Sublease. Sublessor shall,
at Sublessor's sole expense, reconstruct any records not preserved or retained as required by
this paragraph.
3. CONFIDENTIAL INFORMATION — STATE RECORDS
Sublessor shall comply with and shall cause each of its subcontractors and any other party
performing Work under the Sublease to comply with the provisions of this §3 if Sublessor or any
subcontractor of Sublessor is given logical access by the State or its agents to State Information in
connection with its performance.
A. Confidentiality
Sublessor shall comply with all laws and regulations concerning confidentiality of State
Confidential Information. Any request or demand by a third party for State Information in the
possession of Sublessor shall be immediately forwarded to the State's principal representative.
B. Notification
Sublessor shall provide its agents, employees, subcontractors, and assigns who may come into
contact with State Information with a written explanation of the confidentiality requirements
herein, to which they are subject, before permitting them to access such State Information.
C. Use, Security, and Retention
Sublessor shall not move any of the State's equipment from the Premises. Neither Sublessor nor
its subcontractors shall have any rights to use or access any Governor's Office of Information
Technology ("OIT") or other State agency data or information, except with the prior approval of
the State.
Form — improved Real Property Lease (Gross) Page F - 3
Rev. 1/2015
D. Protection
Sublessor shall provide the physical security measures set forth in the Sublease.
E. Delivery and Support
The State, in its sole discretion, may securely deliver State Information directly to the facility
where such data is used to perform the Work. State Information is not to be maintained or
forwarded to or from any other facility or location except for the authorized and approved
purposes of backup and disaster recovery purposes.
F. Incident Notice
If Sublessor becomes aware of a physical security Incident involving the Premises, it shall notify
the State promptly and cooperate with the State regarding recovery, remediation, and the
necessity to involve law enforcement, if any. Unless Sublessor can establish that Sublessor or
any of its subcontractors is not the cause or source of the Incident, Sublessor shall be
responsible for the cost of notifying each person whose personal information may have been
compromised by the Incident.
G. Incident Remediation
Sublessor shall work together with the State in order to investigate the cause of an Incident, and
to produce a remediation plan to reduce the risk of incurring a similar type of breach in the future.
H. Incident Liability
Disciosure of State Information by Sublessor or any subcontractor for any reason may be cause
for legal action by third parties against Sublessor, the State, or their respective agents. Sublessor
shall indemnify, save, and hold harmless the State, Its employees, and agents against any and all
third party claims, damages, liability, and court awards including reasonable (i) costs, (ii)
expenses, and (ill) attorney fees incurred as a result of any act or omission, as finally determined
in a non -appealable decision or order by a court of competent jurisdiction, by Sublessor, or its
employees, agents, subcontractors, or assignees pursuant to this §3. Notwithstanding any other
provision of this Sublease, Sublessor shall be liable to the State for all consequential and
incidental damages arising from an Incident caused by Contractor or its subcontractors.
I. Safeguarding FTI Data
If Sublessor or any of its subcontractors will or may receive FTI Data under this Sublease,
Sublessor shall provide for the security of the FTI Data, in a form acceptable to the State and in
accordance with State and federal law and the Confidentiality of Taxpayer Information
Certification which is attached hereto and incorporated herein by this reference as Exhibit I.
Security safeguards shall Include, without limitation, supervision by responsible employees,
approval of subcontractors as required by State or federal law, non -disclosure of information
other than as necessary in the performance of Sublessor's or its subcontractor's obligations
under this Sublease, non -disclosure protections, proper accounting and storage of information,
civil and criminal penalties for non-compliance as provided by law, certifications, and inspections.
Sublessor shall comply with the requirements of IRS Publication 1075, Tax information Security
Guidelines for Federal, State and Local Agencies, revised and effective January 1, 2014, found
at: http://www.irs.gov/pubrrs-pdf/p1075.pdf and incorporated herein by this reference.
4. INCORPORATION OF TERMS
Notwithstanding anything to the contrary herein, the State shall not be subject to any provision
incorporated in any exhibit attached hereto, any provision incorporated in any terms and conditions
appearing on Sublessor's or subcontractor's website, any provision incorporated into any click -
through or online agreements, or any provision incorporated into any other document or agreement
between the Parties that (I) requires the State to indemnify Sublessor or any other party, (II) is in
violation of State laws, regulations, rules, fiscal rules, policies, or other State requirements as deemed
solely by the State, or (iii) is contrary to any of the provisions incorporated into this Exhibit or the main
body of this Sublease.
5. FORCE MAJEURE
Neither Party will be liable for its non-performance or delayed performance if caused by a Force
Form — Improved Real Property Lease (Gross) Page F. 4
Rev. 1/2015
Majeure event. A Party that becomes aware of a Force Majeure event that will significantly delay
performances shall notify the other Party promptly (but In no event later than fifteen (15) days) after it
discovers the Force Majeure event. If a Force Majeure event occurs, the Parties shall execute an
amendment to extend the Sublease for a time period that is reasonable under the circumstances and
in accordance with State of Colorado Fiscal Rules and State of Colorado Controller Policies.
6. LICENSE OR USE AUDIT RIGHTS
Sublessor shall have the right, at any time during and throughout the Sublease Term, but not more
than once (1) per Fiscal Year to request via written notice in accordance with the notice provisions of
the Sublease ("Audit Request") that the State certify Its compliance with any applicable license or use
restrictions and imitations ("Audit") contained in this Sublease or its Exhibits. The State shall
complete the Audit and provide certification of its compliance to Sublessor ("Audit Certification") within
one hundred twenty (120) days following the State's receipt of the Audit Request. If upon receipt of
the State's Audit Certification, the Parties reasonably determine: (I) the State's use of licenses, use of
software, use of programs, or any other use during the Audit period exceeded the use restrictions and
limitations contained in this Sublease or its Exhibits ("Overuse") and (II) that the State would have
been or is then required to purchase additional maintenance and/or services ("Maintenance"),
Sublessor shall provide written notice in accordance with the notice provisions of the Sublease to the
State Identifying any Overuse or required Maintenance and request that the State bring its use into
compliance with such use restrictions and limitations. Notwithstanding anything to the contrary in this
Sublease and its Exhibits, or incorporated as a part of Sublessor 's or any subcontractor's website,
click -through or online agreements, third -party agreements, or any other documents or agreements
between the Parties, the State shall not be liable for the costs associated with any Overuse or
Maintenance, regardless of whether the State may have been notified in advance of such costs.
Form — Improved Real Property Lease (Gross) Page F - 5
Rev. 1/2015
EXHIBIT G
VIAWEST SERVICE LEVEL AGREEMENT
This Exhibit G is part of that certain Amended and Restated Sublease Agreement, CMS # 95 SS7
("Sublease") by and between ViaWest, Inc. ("Sublessor" or "ViaWest") and the State of Colorado (the
"State" or "Sublessee") acting by and through its Governor's Office of Information Technology ("Olr). In
the event of a conflict or inconsistency between the Sublease and its exhibits and attachments, such
conflict or inconsistency shall be resolved in the manner specified in §25.H (Order of Precedence) of the
Sublease.
1. Service Levels.
A. Service Level Agreement.
This service level agreement (this "SLA") is provided by ViaWest, Inc. ("ViaWest") to establish
certain service level commitments with respect to the services (the "Services") to be provided by
ViaWest to the ViaWest customer (the "Sublessee") set forth on the signature pages hereto. This
SLA will apply with respect to the Service if ordered by the ViaWest Sublessee set forth below
("Sublessee") pursuant to a fully executed Order Form.
B. Satisfaction Guarantee.
In the event that Sublessee is not 100% satisfied with the power, network, or environmental
commitments, then Sublessee may provide written notice to ViaWest of its dissatisfaction (the "Mad
Notice"). The Mad Notice must identify the affected Service, refer to this satisfaction guarantee,
and document Sublessee's eligibility for credits due to noncompliance of the Service with the
power, network, or environmental commitments set forth in Section 1.D., 1.F., or 1.J., as applicable.
If ViaWest does not cure the Issue causing the noncompliance within 4 hours or provide
documentation to Sublessee demonstrating that the Service was in compliance with the applicable
commitment within 3 days from receiving the Mad Notice, then Sublessee may terminate the
affected Service without penalty upon written notice to ViaWest within 5 days following the end of
ViaWest's cure period. In addition, if Sublessee provides a Mad Notice to ViaWest four or more
times over any consecutive 12 -month period for the same root cause resulting in noncompliance of
the same commitment (which notice is not countered by documentation demonstrating that the
Service was in compliance with the applicable commitment), then Sublessee may terminate the
affected Service.
a. Services
b. Provide up to 20 hours per month of Remote Hands service as detailed in Exhibit B at no
charge ("Free Allotted Hours").
1. Monthly operational reviews with senior management, to be scheduled jointly by
Sublessee and Sublessor, to include the following: Monthly operational review, SLA
review, installations, projected installations, escalation procedures and other items as
deemed appropriate by the parties.
2. At Sublessee's request, Sublessor shall provide 48 inch deep server cabinets, with
additional specifications supplied by Sublessee, at Sublessor's cost, which shall be
reimbursed by Sublessee on terms to be agreed upon by the parties and following the
repayment of such amount shall be the property of Sublessee. Sublessee will be
allowed to provide their own IT cabinets at their own cost so long as such cabinets are
a minimum 42U high. Cabinets shall remain the property of the supplying party unless
agreed otherwise.
C. Installation Commitment.
ViaWest's commitment is to install all standard Services set forth on a fully executed Order Form by
the Billing Start Date set forth on the Order Form or issued in writing or via e-mail by ViaWest
following execution of the Order Form. If ViaWest fails to meet this installation commitment and
Sublessee provides ViaWest with a written request within five business days of the last day of the
Form — Improved Real Property Lease (Gross) Page G -1
Rev. 1/2015
month in which such failure occurred, ViaWest shall provide a service credit to Sublessee's account
equal to 50% of the installation fees charged to Sublessee
a. ViaWest will establish and maintain 6,549 sq. ft. of DC Space, including 18" raised floor and
power and cooling to support power up to 120 watts per square foot (to be deployed over the
course of the sublease as demand requires).
b. ViaWest will establish 5,618 sq. ft. of Office/Common Area Space, including a network
operations Center (NOC), general office space (with one 12`(12' office), staging area, storage
area, electrical/demarcation room, men's and women's bathrooms including shower, janitorial
closet and docking area for the explicit use of the State.
c. Up to 120 Watts per square foot, to be initially configured as follows: 2 500 kVA UPS's
to provide A and B feed, 2MW Generator, two (2) X 225 kVA and two (2) X 100 kVA PDUs,
2000 kVA transformer. Additional power capacity will be added as power consumption is
required up to a maximum of 500 kW per feed.
d. Standard metering of power consumed by Sublessee in the subleased Premises, which
shall be separate from metering for the rest of the Building.
e. Sublessor shall provide all power infrastructure delivered to Sublessee's cabinets
f. Sublessor shall meter DC power consumption by Sublessee. Sublessor shall provide
monthly reports to Sublessee specifying power consumption at Sublesee's racks.
D. Power Availability Commitment.
ViaWest's commitment is to maintain availability of the power provided to Sublessee's environment
in the ViaWest datacenter 100% of the time. Power unavailability is measured by the number of
seconds from the time power unavailability to Sublessee's environment is determined by ViaWest
to the time power is restored. "Power Unavailability" shall mean the unavailability of the power to
Sublessee's space where both the primary and secondary/supplemental power circuits have failed.
The availability of power through only one power circuit where such power is supplied through a
primary and redundant circuit is not considered "Power Unavailability." If ViaWest fails to meet this
power availability commitment and Sublessee provides ViaWest with a written request within five
business days of the last day of the month in which such failure occurred, ViaWest shall provide a
service credit to Sublessee's account equal to 10% of Sublessee's Monthly Service Charges for the
affected Service for each cumulative hour of unavailability or failure during the applicable month, up
to a maximum of the total Monthly Service Charges charged by ViaWest to Sublessee during the
applicable month for the affected Service. Sublessee shall not be eligible for credits for power
unavailability unless Sublessee properly installs and configures redundant power circuits and
utilizes such circuits in a redundant manner and in accordance with the provisions of Section 2 of
this SLA.
E. ViaWest Network Availability Commitment.
ViaWest's commitment is to maintain availability of the ViaWest Network 100% of the time.
Unavailability of the ViaWest Network is measured over a calendar month and is based on total
outage time incurred by Sublessee. Network unavailability shall exist when (I) a particular
Sublessee Port is unable to transmit IP data packets from such Sublessee Port to the Public
Internet via the ViaWest Network and (ii) such failure is recorded in ViaWest's trouble ticket system.
Network unavailability is measured from the time the trouble ticket is opened to the time ViaWest
confirms that the affected Service is again able to transmit and receive data. If ViaWest fails to
meet this ViaWest Network availability commitment and Sublessee provides ViaWest with a written
request within five business days of the last day of the month in which such failure occurred,
ViaWest shall provide a service credit to Sublessee's account equal to 10% of Sublessee's Monthly
Service Charges for the affected Service for each cumulative hour of unavailability or failure during
the applicable month, up to a maximum of the total Monthly Service Charges charged by ViaWest
to Sublessee during the applicable month for the affected Service.
Form — Improved Real Property Lease (Gross) Page G - 2
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F. Network Connections Availability Commitment.
ViaWest's commitment is to maintain availability of Sublessee's network connections (i.e., cross
connects provided by ViaWest) 100% of the time. Unavailability of Sublessee's network
connections is measured over a calendar month and is based on total outage time incurred by
Sublessee. Sublessee's network connections begin at the initial piece of ViaWest owned and
operated equipment to which the applicable circuit connects and end at the demarcation point
installed in Sublessee's cabinet and/or cage. Network connection unavailability exists when (a) due
to a failure of Sublessee's network connection(s) (i.e., cross connects provided by ViaWest), a
particular Sublessee Port is unable to transmit data from the ViaWest network connection(s) and (b)
such failure is recorded in ViaWest's trouble ticket system. Network connection unavailability is
measured from the time the trouble ticket Is opened to the time ViaWest confirms that the affected
Service is again able to transmit and receive data. If ViaWest fails to meet this network
connections availability commitment and Sublessee provides ViaWest with a written request within
five business days of the last day of the month in which such failure occurred, ViaWest shall
provide a service credit to Sublessee's account equal to 10% of Sublessee's Monthly Service
Charges for the affected Service for each cumulative hour of unavailability or failure during the
applicable month, up to a maximum of the total Monthly Service Charges charged by ViaWest to
Sublessee during the applicable month for the affected Service.
G. ViaWest Network Packet Loss Commitment.
ViaWest's commitment is to maintain average packet loss of no more than 1% across the ViaWest
Network. Average packet loss across the ViaWest Network is measured on an ongoing basis over
a 24 -hour period beginning at 12:01 A.M. mountain time each day. If ViaWest fails to meet this
ViaWest Network packet loss commitment and Sublessee provides ViaWest with a written request
within five business days of the last day of the month in which such failure occurred, ViaWest shall
provide a service credit to Sublessee's account equal to 10% of Sublessee's Monthly Service
Charges for the affected Service for each 24 -hour measurement period during which ViaWest fails
to meet the commitment during the applicable month, up to a maximum of the total Monthly Service
Charges charged by ViaWest to Sublessee during the applicable month for the affected Service.
Packet loss of greater than 20% at any time is considered "ViaWest Network Unavailability"
pursuant to Section 1.D of this SLA.
H. ViaWest Redundant Hardware Availability Commitment.
ViaWest's commitment is to maintain availability of ViaWest-owned and operated hardware,
consisting of communications, controller, routers, switches, firewalls, other network infrastructure,
storage, and CPU and/or processing platform for which Sublessee has ordered a redundant unit
(the "Redundant Hardware") 100% of the time. Unavailability of the Redundant Hardware is
measured over a calendar month and is based on total outage time incurred by Sublessee,
measured from the time a trouble ticket is opened to the time ViaWest confirms that at least one of
the affected units is again operational. Redundant Hardware unavailability shall exist when (1) both
the primary and the redundant units that are in production for provision of the Service are unable to
operate in accordance with industry standards and cause unavailability of the Service and (2) such
failure is recorded in ViaWests trouble ticket system. If ViaWest fails to meet this Redundant
Hardware availability commitment and Sublessee provides ViaWest with a written request within
five business days of the last day of the month in which such failure occurred, ViaWest shall
provide a service credit to Sublessee's account equal to 10% of Sublessee's Monthly Service
Charges for the affected Service for each cumulative hour of unavailability or failure during the
applicable month, up to a maximum of the total Monthly Service Charges charged by ViaWest to
Sublessee during the applicable month for the affected Service.
I. ViaWest Support Response Commitment.
ViaWest's Service support for colocation and hosting Service is available 24 x 7. ViaWest's
commitment is to respond to any critical incident within 15 minutes of creation of the applicable
trouble ticket, and to respond to any non -critical incident within 2 hours of creation of applicable
trouble ticket. A "critical" incident means that Sublessee's Service is unavailable or has been
materially impacted. "Response" means that a trouble ticket has been created, Sublessee has
been notified of the issue and ViaWest representatives are working to resolve the issue. If ViaWest
Form — Improved Real Property Lease (Gross) Page G - 3
Rev. 1/2015
fails to meet this support response commitment and Sublessee provides ViaWest with a written
request within five business days of the last day of the month in which such failure occurred,
ViaWest shall provide a service credit to Sublessee's account equal to 10% of Sublessee's Monthly
Service Charges for the affected Service for each cumulative hour of unavailability or failure during
the applicable month, up to a maximum of the total Monthly Service Charges charged by ViaWest
to Sublessee during the applicable month for the affected Service. Please note: this Support
Response Commitment does not apply to the following ViaWest datacenters: Austin (AUS01),
Lindon (SLC03), Cottonwood (SLC05) and Presidents (SLC08).
J. Environmental Commitment.
ViaWest's commitment is to provide delivered air to the Customer's space within the data center at
a temperature in accordance with ASHRAE recommended standards and at a humidity level in
accordance with ASHRAE allowable standards, measured 12 inches above the unobstructed
perforated tiles in Customer's space, 100% of the time. If ViaWest fails to meet the HVAC
availability commitment set forth in this Section and Customer provides ViaWest with a written
request within five days following the last day of the month in which such failure occurred, ViaWest
shall provide a service credit to Customer's account equal to ten percent (10%) of Customer's
Monthly Service Charges for the affected Service for each cumulative hour of failure during the
applicable month, up to a maximum of the total Monthly Service Charges charged by ViaWest to
Customer during the applicable month for the affected Service. ViaWest will place environmental
monitoring in the middle of each cold aisle for general monitoring purposes and shall provide
environmental reports to Sublessee upon request but no more than once per week that provide
temperature and humidity within the rack aisle spaces to the State.
K. Definitions; Service Credit Eligibility.
For purposes of this SLA, "Monthly Service Charges" means the service charges (excluding any
taxes, pass -through charges, set-up or installation charges, or other one-time charges) billed for the
affected Service during the month. A "trouble ticket" may be opened in ViaWest's trouble ticketing
system by ViaWest, Sublessee, or ViaWest's monitoring systems. ViaWest reserves the right to
verify the validity of any tickets opened by Sublessee or ViaWest's monitoring systems. "ViaWest
Network" means that portion of the system facilitating Sublessee's use of and connection to the
Internet beginning where Sublessee's colocation uplink (the "Sublessee Port") connects to the
network and ending where ViaWest delivers IP data packets to the Public Internet on the
Sublessee's behalf. "Public Internet" means the gateway router interface between the ViaWest
Network and ViaWest's upstream providers' networks. In the event that Sublessee is eligible to
receive multiple credits under this SLA from the same event pursuant to different commitments,
such credits shall not be cumulative and Sublessee shall be eligible to receive only the maximum
credit available for such event under the service level commitment corresponding to the root service
failure. THIS SLA SETS FORTH SUBLESSEE'S SOLE AND EXCLUSIVE REMEDY FOR
EQUIPMENT AND/OR SOFTWARE FAILURES, SERVICE INTERRUPTIONS, SERVICE
RESPONSE ISSUES, AND/OR SERVICE DEFICIENCIES OF ANY KIND WHATSOEVER.
L. Service Credit Exceptions.
For each commitment set forth in this Service Level Agreement, service credits shall not be
available to Sublessee in cases where the Service is unavailable as a result of (a) the acts or
omissions of Sublessee or its employees, agents or end -users; (b) the failure, malfunction, or
limitation of throughput of equipment, network, software, applications or systems not owned or
directly controlled by ViaWest (including third -party products and services that may be included in
the Services); (c) circumstances or causes beyond the control of ViaWest, such as events of force
majeure and third -party attacks (such as ping or denial of service attacks) on the ViaWest Network;
(d) scheduled maintenance with prior notice posted at mysupport.viawest.net, which URL is subject
to change upon prior notice; or (e) urgent maintenance with notice provided as soon as is
commercially practicable under the circumstances.
2. Circuit Breaker and Power Utilization.
A. Circuit Breaker Utilization.
Form — Improved Real Property Lease (Gross) Page G - 4
Rev. 1/2015
In the event that any of Sublessee's allocated circuit breaker(s) carry greater than eighty percent
(80%) of its continuous current load based on National Fire Protection Association 70 Article
210.20(A), then one of the following must occur as determined by ViaWest: (a) Sublessee shall
purchase additional power circuits at the then -current rates in order to reduce circuit breaker
utilization to less than eighty percent (80%) of its rated current or (b) Sublessee shall decrease its
circuit breaker utilization to eighty percent (80%) of its rated current. If Sublessee does not choose
one of the two foregoing options within 24 hours of notification from ViaWest, then ViaWest
reserves the right in its sole discretion to limit power consumption in order to reduce Sublessee's
power load.
B. Power Utilization on Primary/Redundant Circuit Pairs.
In the event that Sublessee has purchased a primary/redundant, or NB, circuit pair, Sublessee's
total power utilization across the circuit pair must not exceed 80% of the rated capacity of one of the
circuits in the pair. If Sublessee exceeds this threshold, then one of the following shall occur as
determined by a mutually agreed upon solution by both ViaWest and the State: (a) Sublessee shall
purchase additional power circuits at the then -current price for such circuits in order to reduce the
overall power load on the circuit pair to below the threshold; or (b) Sublessee shall reduce its power
load on the applicable circuit pair to below the threshold. If Sublessee does not choose one of the
two foregoing options within five business days of notification from ViaWest, then ViaWest reserves
the right in its sole discretion to limit power consumption or disconnect circuits in order to reduce
Sublessee's power load across the circuit pair. In addition, Sublessee acknowledges that
exceeding the threshold (x) would result in overload of Sublessee's circuit and shutdown of
Sublessee's equipment in the event of power unavailability to one side of the circuit pair, and (y)
shall invalidate the power availability commitment set forth in this SLA.
Form —Improved Real Property Lease (Gross) Page G - 5
Rev. 112015
EXHIBIT H
PREMISES RULES
Access to Subleased Premises.
A. Upon execution of the sublease, Sublessee must maintain an accurate set of access
lists using the ViaWest Portal system at (https://supportcenter.viawest.com/).
B. Each access badge consists of a card with the name of the individual Sublessee
representative, the name of Sublessee, and a picture of the Sublessee representative.
Access badges are for the sole use of the individual Sublessee representatives to
whom they are Issued and may not be transferred or loaned to other individuals,
including other employees or third party vendors of Sublessee.
C. Sublessee representatives may access Sublessee's equipment in the subleased
Premises at any time — 24x7— subject to the security provisions set forth in these rules.
D. Each Sublessee representative needs an access badge to enter the subleased
Premises. Sublessee can request up to 50 access badges in the aggregate for
Sublessee and all Other State Agencies free of charge; additional access badges are
available at a rate of $100 per year up to a maximum of 100 access badges in the
aggregate for Sublessee and all Other State Agencies.
E. Each Sublessee representative's access badge must be clearly visible while in the
subleased Premises.
F. Each Sublessee representative is allowed up to three visitors to accompany him/her
into the subleased Premises for the purpose of Installation or support assistance only.
The Sublessee representative(s) shall need to surrender a valid government issued
picture ID (drivers license, military ID etc) to have a visitors badge issued by Sublessee
or Sublessors NOC. The ID shall be returned in exchange for the temporary access
badge. The Sublessee representative must escort his/her visitors at all times, and
Sublessee Is responsible for all actions of such visitors in the subleased Premises.
G. If a Sublessee representative's access badge is lost or stolen, Sublessee must contact
Sublessor's NOC immediately at 877-896-6226. Each lost or stolen access badge has
a $25 replacement charge that will be the responsibility of the badge owner.
2. Security for Subleased Premises.
A. The subleased Premises is physically secure with a 24x7 main entrance that is
surveyed by security cameras and requires card and biometric access. Closed circuit
television security cameras are located strategically throughout the subleased
Premises and at the entrances to the subleased Premises. The access card is linked to
a central monitoring station that identifies all persons authorized to enter the subleased
Premises.
B. Sublessor shall procure and install fourteen (14) video surveillance cameras within the
Premises at locations to be designated by Sublessee. Each camera shall connect to a
switch to be provided by Sublessee. Sublessee shall be solely responsible for
managing, monitoring and maintaining the cameras, and Sublessee shall be solely
responsible for recording and storing data from the cameras.
Forth — Improved Real Property Lease (Gross) Page H -1
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C. Cabinets are secured individually, either with combination or keyed locks or electronic
RFID device. If a keyed lock is used, Sublessor shall provide Sublessee with two sets
of keys at no additional charge. It is Sublessee's responsibility to ensure that its
cabinets are locked at all times while not in use.
D. Doors to and from the subleased Premises may not be left partially open or blocked
under any circumstances.
E. No "tailgating" is allowed — each individual who enters the subleased Premises must
use a valid access badge or must be escorted by a valid badge holder as a visitor
(subject to Section 1(F) above).
F. All employees of Sublessor who shall have unescorted physical access to the
subleased Premises, including access passwords and keys, must pass a
background/fingerprint check by the Colorado Bureau of Investigation (CBI). The costs,
as set by the State Legislature, for each background check for its employees shall be
borne by Sublessor. Annually, Sublessor shall provide Sublessee with an updated list
of Sublessor employees who have unescorted access to the subleased Premises for
verification and validation of required background checks. Sublessor also shall provide
a list of Sublessor employees who have unescorted access to the subleased Premises
at the request of Sublessee for audit purposes to spot-check compliance with this
requirement. These individuals shall be "flagged" so that serious law enforcement
infractions shall be brought to the attention of Sublessee and Sublessor management.
Continued access to the subleased Premises of any Sublessor personnel because of a
"flagged" incident shall be resolved to the satisfaction of both Sublessee and Sublessor
management.
Equipment Delivery and Storage.
A. All delivery and storage of Sublessee's equipment is the responsibility of Sublessee.
No hazardous materials may be stored on site by Sublessee.
B. Except as provided in the sublease, Sublessor is not responsible for loss or damage to
Sublessee equipment stored in the subleased Premises or in transit.
Power.
A. To ensure the safety of all Sublessee equipment and the subleased Premises, the
maximum power density within the subleased Premises is 120 watts/sq ft.
B. All individual power connections (including cabling and wiring) must be installed and
maintained by Sublessor.
C. All equipment installed in the subleased Premises must meet the standards of
Underwriters Laboratories (UL) listing or a similarly recognized governing board.
D. Sublessee must inform Sublessor's NOC immediately upon discovery of any worn,
frayed, or cut cables or wiring.
E. No soldering or open flames are allowed.
Form — Improved Real Property Lease (Gross) Page H - 2
Rev. 1/2015
5. Telecommunications Facilities.
A. Sublessor offers several different telecommunications vendors for connectivity services
to and from the subleased Premises. All interconnects must be approved by Sublessor,
including interconnects to the Colorado State Network (CSN).
6. Site Tours.
A. From time to time, Sublessee may request tours of the subleased Premises for the
benefit of Other State Agencies or to show the subleased Premises to other third
parties. Sublessee is provided up to two site tours per month based on the availability
of Sublessor's co- location manager and/or other appropriate representatives of
Sublessor. Sublessee may designate up to four individuals per tour, and each tour
shall be 30 minutes at the maximum.
B. Unused tour times do not carry over from month to month.
C. Based on availability, Sublessee may request additional tours with the above
specifications at the then -current published rates (currently $100 per tour).
D. Larger or more specific tours shall require approval on a case -by -case basis from
Sublessor's co -location manager and/or other appropriate Sublessor representatives.
7. Dedicated Account Management.
A. Sublessee shall be assigned a dedicated account manager. Sublessor may change
the dedicated account representative at any time by the delivery of written notice to
Sublessee in accordance with article 13 of the sublease.
8. General Subleased Premises and Cabinet Rules.
A. No eating, drinking, or smoking in the subleased Premises except in areas designated
by Sublessor.
B. No weapons, guns, knives, mace, alcohol, or drugs may be brought into the subleased
Premises.
C. No persons under the age of 18 years may access the subleased Premises, except in
areas designated by Sublessor.
D. Any Sublessee representative attempting to access restricted areas shall have his or
her access rights immediately terminated.
E. No photographing or filming any areas in the subleased Premises or the entrances to
the subleased Premises without Sublessor's prior written consent.
F. Except for the office portion of the subleased Premises, combustible materials such as
paper or cardboard may not be stored in the subleased Premises or any cabinets in the
subleased Premises. Sublessee must keep the cabinets in the subleased Premises
clean of debris and spare equipment at all times.
G. Boxes and equipment may be stored only in designated area(s) in the subleased
Form — Improved Real Property Lease (Gross) Page H - 3
Rev. 1/2015
Premises.
H. Sublessee is responsible for keeping its cabinets/cages in compliance with all OSHA
requirements.
I. Removal of floor or ceiling tiles is not allowed except by a representative of Sublessor.
No one is permitted under the floor tiles or above the ceiling tiles except a
representative or Sublessor.
J. Roof access is not permitted.
9. Changes to Rules.
These rules may change from time to time as set forth in the sublease.
Form — Improved Real Property Lease (Gross) Page H - 4
Rev. 1/2015
EXHIBIT I
CONFIDENTIALITY OF TAXPAYER INFORMATION CERTIFICATION
The State has legal responsibilities to safeguard the confidentiality of taxpayer information obtained and
used in the course of this Contract for the State. As a contractor providing services to and for the benefit
of the State, Contractor is required to uphold these responsibilities as a condition of being allowed access
to taxpayer information. These obligations apply to information that is discussed, collected, or maintained
verbally, in paper, or in electronic format.
Contractor understands that in the course of its provision of services as a contractor for the State,
Contractor's employees may receive or learn of taxpayer information that is confidential by law. The
confidentiality of all taxpayer information provided by the State, or teamed in the course of Contractor's
duties as a contractor for the State, shall be maintained at all times in accordance with safeguards set
forth under CRS § 39-21-113(4) as amended, 1 CCR 201-1 Regulation 39-21-113(4) as amended, 26
CFR § 6103 and the associated US Treasury Regulations as amended, and IRS Publication 1075. This
confidential taxpayer information shall not be disclosed, re -disclosed, distributed, sold, or shared with any
third party nor used in any way except as expressly authorized by the State. Information compiled,
hosted, and retained on electronic media or in databases for the use of the State shall be secured and
adhere to the standards of protection set forth under federal and State safeguards for the protection of
electronically -stored taxpayer information.
Disclosure of such confidential taxpayer information may be cause for legal action against Contractor and
any involved third party. Contractor shall immediately notify the State of any breach of security resulting in
any Inadvertent or intentional disclosure of confidential taxpayer information. The State shall not be in any
way responsible for defense of any action against Contractor for a disclosure of confidential taxpayer
information. No disclosure shall be made by Contractor to a Subcontractor or third party without the
express written consent of the State.
Contractor shall not retain any confidential taxpayer information once Contractor has completed legal
services under the terms of Contract for the State, and shall return all confidential taxpayer information to
the State. Contractor shall return all confidential taxpayer Information immediately upon notice and
demand from the State.
Contractor hereby acknowledges that it shall remain In compliance with all State and federal laws and the
aforementioned terms and conditions pertaining to the protection, security, and confidentiality of taxpayer
information provided by the State or learned of in the course of its duties as a contractor for the State.
Form Improved Real Property Lease (Gross) Page I -1
Rev. 1/2015
EXHIBIT J
PRIME LEASE (attached)
Form — Improved Real Property Lease (Gross) Page J - 1
Rev. 1/2015
Exhibit A - OIT/ViaWest Sublease
CMS #101076
STATE OF COLORADO
DEPARTMENT OF PERSONNEL AND ADMINISTRATION
OFFICE OF THE STATE ARCHITECT
REAL ESTATE PROGRAMS
STANDARD
SUBLEASE AMENDMENT 1 [IMPROVED REAL PROPERTY]
SUBLESSOR
SUBLESSEE
LOCATION
ViaWest, Inc.
The State of Colorado, acting by and through its Governor's
Office of Information Technology
12500 East Arapahoe Road, Unit A, Centennial, CO 80112 (eFORT)
4
Form — Amendment to Improved Real Property Lease Page 1 of 4
Rev. 7/2015
cr
CMS #101076
FIRST AMENDMENT TO SUBLEASE
The printed portions of this form, except bold additions, have been
approved by the State of Colorado Attorney General
THIS FIRST AMENDMENT TO SUBLEASE, made and entered into this day of Mme, 2017, for
the purpose of amending that certain sublease (the "Sublease") dated February 1, 2017, by and
between ViaWest, Inc., as "Sublessor", and THE STATE OF COLORADO, acting by and through the
Governor's Office of Information Technolouv, as "Sublessee", relating to the subleasing of a portion of
the building located at 12500 East Arapahoe Road, Centennial, CO 80112 (the "Building"), comprised of
twelve thousand one hundred sixty-seven (12,167) rentable square feet. Both Sublessor and
Sublessee shall be hereinafter referred to as "Parties" to this First Amendment to the Sublease.
WHEREAS, Authority to enter into this First Amendment to Sublease exists in the Law, and funds have
been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance
thereof remains available for payment. Required approvals, clearance and coordination have been
accomplished from and with appropriate agencies.
WHEREAS, the Parties desire to update the rent tables contained in the Sublease to reflect the Sublease
Effective Date, and to clarify how electric power utilized by Sublessee will be billed by Sublessor.
NOW, THEREFORE, Sublessor and Sublessee in consideration of the mutual promises contained herein,
hereto agree to amend the Sublease as follows:
1, The Rent Table in Section 1(C) is hereby deleted in its entirety and replaced with the following:
-Year Term — No space Reduction
Annual
Taxes
Adjusted Rent
Monthly
Total
Rent
RSF
Term Dates
Months
RSF
RSF
RSF
Rent
Term Rent
12,167
02/01/17 - 06/30/17
5
$118.35
$2.86
$115.49
$117,097.24
$585,486.20
12,167
07/01/17 - 06/30/18
12
$120.72
$2.86
$117.86
$119,500.22
$1,434,002.62
12,167
07/01118-06/30/19
12
$124.34
$2.86
$121.48
$123,170.60
$1,478,047.16
12,167
07/01/19 - 06/30/20
12
$128.07
$2.86
$125.21
$126,952.51
$1,523,430.07
12,167
07/01/20 - 06/30/21
12
$131.91
$2.86
$129.05
$130,845.95
$1,570,151.35
12,167
07/01/21 - 01/31/22
7
$133.20
$2.86
$130.34
$132,153.90
$925,077.30
2. The Rent Table in Section 1(D) is hereby deleted in its entirety and replaced with the following:
-Year Term — One-time data center space reduction
Annual
Taxes
Adi u�Rent
Monthly
Total
Rent
RSF
Term Dates
Months
RSF
RSF
RSE
Ren
Term Rent
$585,486.20
12,167
02/01/17 - 06/30/17
5
$118.35
$2.86
$115.49
$117,097.24
12,167
07/01/17 - 06/30/18
12
$120.72
$2.86
$117.86
$119,500.22
$1,434,002.62
12,167
07/01/18 - 06/30/19
12
$124.34
,
$2.86
$121.48
$123,170.60
$1,478,047.16
12,167
07/01/19 - 01/31/20
7
$128.07
$2.86
$125.21
$126,952.51
$888,667.57
10,118
02/01/20- 06/30/20
5
$128.07
$2.86
$125.21
$105,572.90
$527,864.50
10,118
07/01/20 - 06/30/21
12
$131.91
$2.86
$129.05
$108,810.66
$1,305,727.90
10,118
07/01/21 - 01/31/22
7
$133.20 _
$2.86
$130.34
$109,898.34
$769,288.38
Form — Amendment to Improved Real Property Lease Page 2 of 4
Rev, 7/2015
CMS #101076
3. The paragraph at Section 1(E)(i) is hereby deleted in its entirety and replaced with the following:
"all electric power utilized by Sublessee, which shall be metered for the space comprising the
Premises. If Sublessee elects to reduce the amount of data center space in Years 4 and 5 of this
Sublease, the Parties agree to negotiate in good faith the power metering prior to such election taking
effect. Sublessor shall bill Sublessee for power charges monthly, in arrears;"
4. The paragraph at Section 1(E)(ii) is hereby deleted in its entirety and replaced with the following:
"61,253.57 per month, for a total of 4 years, payable together with the monthly rent, for the installation
and managed service of 20 IP cameras as set forth on Exhibit D (the "Camera Fee");"
5. The paragraph at Exhibit D, Section (A), Surveillance Cameras, is hereby deleted in its entirety and
replaced with the following:
"Sublessor shall procure, install, and manage twenty (20) video surveillance cameras within the
Premises at locations to be designated by Sublessee. Each camera shall connect to a switch to be
provided by Sublessor. The Parties will mutually agree on the models of the cameras and recording
appliances. Sublessee shall pay the cost of the cameras and managed service as set forth in Section
1(E)(ii) of this Sublease. This security camera managed service will include the following:
(i) 20 cameras;
(ii) Recording appliance(s) with enough storage and processing to support surveillance
camera services level functions for at least 90 days" retention, 33% motion per day, and 10
frames per second;
(iii) Sublessor is responsible for procuring and installing the cameras, recording appliance(s),
and switch; and
(iv) Sublessor is responsible for all operational costs for the cameras, recording appliance(s),
and switch, as well as managing, monitoring, maintaining, recording, backing up, and storing data
from the cameras."
# 1 Order of Precedence. The provisions of the Sublease shall govern the relationship of the
Sublessee and Sublessor. In the event of conflicts or inconsistencies between the Sublease and
the First Amendment such conflicts or inconsistencies shall be resolved by reference to the
documents in the following order of priority:
'r. The provisions of the First Amendment to Sublease,
ii. The provisions of the main body of the Sublease,
Except as modified by the provisions of this First Amendment to Sublease, all other terms and
conditions in the Sublease are hereby ratified and confirmed and remain in full force and effect.
The effective date of this First Amendment to Sublease is , 201_ or the date signed by the
State Controller or his designee, whichever is later. In accordance with the requirements of 24-30-
202 (1) C.R.S., as amended, this First Amendment to Sublease shalt not be deemed valid until it
has been approved by the State Controller, or such assistant as he may designate.
Form — Amendment to Improved Real Property Lease Page 3 of 4
Rev. 7/2015
CMS #101076
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Sublease
agreement on the day and year first above written.
CORPORATIONS:
(A corporate attestation is required, C,R S. §
ATTEST (Seal)
SUBLESSOR:
)
By:
(Corporate Secretary or Equivalent, or
Town/City/County Clerk)
(place corporate seal here, if available)
If SUBLESSOR is signing in their individual capacity,
attach Sublessor affidavit verifying legal status
pursuant to C.R.S. §24-76.5-101.
STATE OF COLORADO
John W, Hickenlooper, Governor
DEPARTMENT OF PERSONNEL & ADMINISTRATION
Office of State Architect, Real Estate Programs
For the Executive Director
By:
Date
APPROVED
DEPARTMENT OF LAW
Cynthia Coffman, Colorado Attorney General
ATTORNEY GENERAL (or authorized Delegate)
y:
j„,./ V. West, Inc.
d r
Josepgerriero, SVP, General Counsel &
Secretary
Date:
SUBLESSEE:
STATE OF COLORADO
John W. Hickenlooper, Governor
Governor's Office of Information Technology
Suma Nallapati, Secretary of Technology and State
Chief Information Officer
By:
Brenda Berlin, Deputy Chief Information Officer and
Chief FinancialOfficer
Date:
l
APPROVALS
ALL CONTRACTS MUST BE APPROVED BY THE STATE
CONTROLLER:
By:
Date.
CRS 24-30-202 requires that the State Controller approve
ail State contracts. This Amendment is not valid until the
State Controller, or such assistant as he may delegate,
has signed it The Sublessor is not authorized to begin
performance until the contract is signed and dated
below. If performance begins prior to the date below, the
State of Colorado may not be obligated to pay for the
good and/or services provided.
APPROVED
STATE OF COLORADO
Robert Jams, CPA, MBA, JD
STATE CONTROLLER'S OFFICE
State Controller (or authorized Delegate) ~�,
By: I�-^--' \�`.� C.,-'Vt-f'i otk(
Q/1I/2017
Date.
Form —Amendment to Improved Real Property Lease Page 4 of 4
Rev. 7/2015
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