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HomeMy WebLinkAbout2005-123 CCRMember Kay Lasman introduced the following resolution and moved its adoption: RESOLUTION NO. 2005-123 RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH ACCESS COMMUNICATIONS, INC. FOR TWO ADDITIONAL CONDUITS ON SAME PATH AS IMPROVEMENT PROJECT NO. 2005-12 AND EXTENDING THE CITY FIBER DUCT SYSTEM FROM THE POLICE BUILDING TO THE WATER TOWER (69TH/DUPONT AVENUE) WHEREAS, Access Communications, Inc. was awarded contract for Improvement Project No. 2005-12, City of Brooklyn Center Fiber Optic Network, Resolution No. 2005-100; and WHEREAS, Access Communications, Inc. has requested to install two additional fiber conduits on the same path as Improvement Project No. 2005; and WHEREAS, some of the project path is on City owned land; and WHEREAS, City staff worked with Access Communications, Inc. and the City Attorney has drafted a Fiber Optic Agreement; and WHEREAS, in the bid respo~se, Access Communications, Inc. has offered to extend the City fiber duct system at a cost of $6 fiber foot for two conduits from the Police building to the City Water Tower (69th/Dupont); and WHEREAS, having this condgit in place will allow for future technology growth and opportunities that will benefit the City, City Public Utilities and LOGIS (i.e. WiMAX - a wireless communication solution for lift stations, well houses, water towers, City mobile computers, and other, alternative/redundant data communication link for the City and LOGIS back-up site, and other opportunities for technology effectivenes , and efficiency); and NOW, THEREFORE, BE IT SOLVED by the City Council of the City of Brooklyn Center, Minnesota, that the Mayor and City Manager are hereby authorized and directed to execute the Fiber Optic Agreement set forth in Attachment A, which is attached hereto and incorporated herein by reference, with Access '.ommunications, Inc. Plymouth, Minnesota in the name of the City of Brooklyn Center for land us ige, locating services and for additional two conduits from the Police Building to the Water Tower (6th/Dupont Avenue). BE IT FUTHER RESOLVED that the Mayor and City Manager are hereby authorized and directed to execute the Agreement between the City of Brooklyn Center and LOGIS set forth in Attachment B, which is attached hereto and incorporated herein by reference, for cost sharing. 1 RESOLUTION NO. 2005-123 BE IT FURTHER RESOLVED that the costs associated with the Fiber Optic Agreement and Agreement between City of Brooklyn Center and LOGIS be allocated as follows: Technology Fund $988 LOGIS $9,711 Sanitary Sewer Fund $9,635 Water Fund $9,635 Earle Brown Heritage Center Capital Fund $405 August 22. Date ATTEST: ~ W I W~ City Clerk Mayor ~ The motion for the adoption of the foregoing resolution was duly seconded by member Kathleen Carmody and upon vote being taken thereon, the following voted in favor thereof: Myrna Kragness, Kathleen Carmody, Kay Lasman, and Diane Niesen; and the following voted against the same: Mary O'Connor; whereupon said resolution was declared duly passed and adopted. RESOLUTION NO. 2005-123 ATTACHMENT A FIBER OPTIC AGREEMENT This Fiber Optic Agreement (the "Agreement") is made this day of August, 2005 (the "Effective Date") by and between the City of Brooklyn Center, a Minnesota municipal corporation ("City") and Access Communications, Inc., a Minnesota corporation ("Access"). WHEREAS, the City wishes to connect via a fiber link its City Hall located at 6301 Shingle Creek Parkway, Brooklyn Center, MN to: 1) Earle Brown Heritage Center, located at 6155 Earle Brown Drive, Brooklyn Center, MN; 2) Police Building, located at 6645 Humboldt Avenue North, Brooklyn Center, MN and; 3) Public Works Central Garage, located at 6844 Shingle Creek Parkway, Brooklyn Center, MN WHEREAS, the City further wishes to connect via a fiber link the Police Building to the Water Tower located at the corner of 65th Avenue and Dupont Avenue, Brooklyn Center, MN (together with above-referenced fiber links, hereinafter referred to as the "Network"). WHEREAS, the fiber and associated conduit to-be installed by Access a comprising the Network is described in attached Exhibit A. WHEREAS, Access has agreed to provide locate services for the Network in exchange for use of two conduits paralleling the fiber network, and payment of $3,600.00; and NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Responsibilities of Access. Access shall: 1. Install their own Network at its own expense. All work shall be completed by September 30, 2005. 2. Perform all utility locates in relation to the Network in a manner ensuring compliance with Minnesota Statutes Section 216D.01 to 216D.07, Minnesota Rules, Chapter 7560, and all other laws or regulations governing the locating and marking of buried utility facilities. 3. Maintain all fiber, conduit and other facilities it installs for its own use pursuant to this Agreement. 4. Provide a paper and electronic AutoCAD drawings of the as-built blue prints documenting conduit, hand holes, fusions splices, cable runs and terminations. SJS-266946v2 1 BR291-3 RESOLUTION NO. 2005-123 ATTACHMENT A 5. Provide the City a minimum of seven days notice prior to maintenance of the fiber that would have an impact on the City except in the case of emergencies, where the City should be notified as soon as possible. II. Responsibilities of the Citv. The City shall: 1. Permit Access to install two additional conduits with fiber at Access's expense along the path of the Network. 2. Pay Access a flat one-time fee of three thousand, six hundred dollars ($3,600.00) to perform utility locates. 3. Obtain all necessary easements in favor of the City for the existing fiber link from City Hall to Central Park. The City will retain Loucks and Associates to survey the easement path, draft a legal description for the easement and an exhibit depicting the graphic interpretation of the easement. The City shall stake the easement path. 4. Break/fix, relocates for network owned by the City and installed pursuant to this Agreement. III. Fiber Rights. The City shall own the conduits, fiber and handholes comprising the Network between the above-referenced locations, provided that Access may install two additional conduits, fiber and handholes paralleling the Network for its own use. Conduits, fiber and handholes installed for its own use is the responsibility of Access. IV. Term. The term of this Agreement shall be for twenty years from the date of this Agreement or upon Access' removal of its fiber and conduit, whichever is longer. V. Termination.. This Agreement may be terminated by either party at the end of the Term by giving 180 days written notice prior to the end of the term. Either party may terminate this Agreement for material breach. The non-breaching party shall provide written notice to the breaching party describing in reasonable detail the nature, scope, extent of breach and the necessary cure deadline under the circumstances. The non-breaching party may terminate if the breaching party has not remedied the breach within the time period reasonably necessary to the non-breaching party. The parties agree that time is of the essence for the parties in the operation and maintenance of the fiber. All breaches must be remedied within an appropriate time to allow continued operation. VI. Survival of Rights. Notwithstanding any provision to the apparent contrary, the parties agree that their respective ownership rights in the fiber and conduits and the right of the City to continued access and seamless operation of its fiber, shall survive any termination of this Agreement by material breach or otherwise. In the event either party terminates this Agreement, the other party shall have the right of first refusal to purchase any portion of the fiber sought to be transferred by the other party at a price equaling any other fair market value, verifiable offer SJS-266946x2 2 BR291-3 RESOLUTION NO. 2005-123 ATTACHMENT A received. The parties further agree that they will do nothing to hinder or obstruct the other party's intent and reasonable expectation that each will be able to access the fiber for its respective purposes. VII. Authorized Representatives. Each party shall designate a representative for purposes of administration of this Agreement (the "Authorized Representative"). Each Authorized Representative shall have authority for acceptance of services and shall be the point of contact for all payments due under this Agreement. Either party changing the designation of its Authorized Representative shall notify the other party pursuant to the notice provision of this Agreement. Access's Authorized Representative: City's Authorized Representative: City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 VIII. Assignment. Except as specifically provided herein, neither party shall assign, transfer or delegate any rights or obligations under this Agreement either directly or indirectly by any means, by operation of law or otherwise without the prior written consent of the other party, which consent shall not be unreasonably withheld. IX. Indemnification. Subject to Section X below, each party shall indemnify and hold harmless the other from and against any and all claims, damages, liabilities, losses and expenses, including reasonable attorney's fees incurred in defense or otherwise arising from the performance of or failure to perform obligations pursuant to this Agreement, or from the negligent or unlawful use, or intentional misuse, of the Network. X. Limitation of Damaees. The City does not waive its liability limitations under law. The liability of each party to the other shall be limited to foreseeable damages arising out of the negligent action or inaction of the other party. Subject to recovery of attorney's fees under Section IX, neither party shall be responsible to the other for attorney's fees. XI. Amendments. Any amendments to this Agreement shall be in writing and shall be executed by the same parties (or their successors in interest) who executed this Agreement. XII. Governing Law. This Agreement shall be governed by the laws of the State of Minnesota. XIII. Notices. All notices and other communications required or permitted hereunder shall be given in writing and shall be: a) personally delivered; b) sent by facsimile transmission or other SJS-266946v2 3 BR291-3 RESOLUTION NO. 2005-123 ATTACHMENT A electronic means of transmitting written documents; or sent to the parties at their respective addresses indicated here by registered or certified U.S. mail, return receipt requested and postage prepaid, or by private overnight mail courier service. If personally delivered, such communication shall be deemed delivered upon actual receipt; if electronically transmitted, such communication shall be deemed delivered the next business day after transmission; if sent by overnight courier, such communication shall be deemed delivered upon receipt; and if sent by U.S. mail, such communication shall be deemed delivered as of the date of delivery indicated on the receipt issued by the relevant postal service. The parties to this Agreement may change its address for the purposes of this Agreement by giving notice thereof in accordance with this section. XIV. Force Majeure. The parties understand that acts of God, acts of civil or military authority, government regulations not required at the time of this Agreement, embargoes, epidemics, war, terrorist acts, riots, fires, explosions, earthquakes, floods or other unusually severe weather conditions or other environmental disturbances, strikes, or other circumstances not under the control of the parties ("Force Majeure") may delay performance as set forth in this Agreement. In the event a Force Majeure event materially limits either party's or the parties' ability to perform under this Agreement such limitation shall not be considered a breach of the terms of this Agreement. XV. Miscellaneous. 1. The failure of either party to give notice of default, or to enforce or insist upon compliance with any of the teens or conditions of this Agreement, the waiver of any term of condition of this Agreement, or the granting of any extension of time for performance, shall not constitute the permanent waiver of any term or condition of this Agreement, and this Agreement and each of its provisions shall remain at all times in full force and effect until modified by the parties in writing. 2. This Agreement sets forth the entire understanding of the parties. 3. This Agreement shall be binding and inure to the-benefit of the parties hereto and their respective successors and assigns. 4. Each party warrants and represents that it is duly authorized to execute this Agreement. .IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed intending to be bound thereby. CITY OF BROOKLYN CENTER ACCESS COMMUNICATIONS, INC. SJS-266946v2 4 BR291-3 1 RESOLUTION NO. 2005-123 By Myrna Kragness Date Its: Mayor By: Michael McCauley Date Its: City Manager SJS-266946v2 BR291-3 By Its: ATTACHMENT A Date RESOLUTION NO. 2005-123 ATTACHMENT B AGREEMENT BETWEEN CITY OF BROOKLYN CENTER AND LOGIS This Agreement (the "Agreement") is made this day of August , 2005 (the "Effective Date") by and between the City of Brooklyn Center (hereafter "City") and Local Government Information System Services (hereafter "LOGIS"), a Minnesota municipal joint powers organization. WHEREAS, the City is constructing a fiber network (the "City Network") to connect its buildings; WHEREAS, the City will be constructing a link to its City Hall that will run underneath Central Park, which is owned by the City; WHEREAS, LOG-IS will utilize this link; WHEREAS, the City and LOGIS have agreed to share the costs in surveying the link path and drafting the legal description and graphic exhibit for the path; and NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. The City shall stake the easement path for the Central Park link. 2. The City shall retain Loucks and Associates to survey the easement area, and draft a legal description and graphic exhibit for the path ("Project"), which is estimated to cost six thousand seven hundred dollars ($6,700). 3. LOGIS shall pay the City one-third of the total Project cost and the City shall pay the remaining two-thirds of the Project cost. 4. The City shall immediately invoice LOGIS for its portion of the Project cost upon receipt of the invoice from Loucks & Associates. 5. LOGIS shall pay the City's invoice within thirty days of the date of the invoice. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed intending to be bound thereby. 266989vl(SJS) BR291-3 RESOLUTION NO. 2005-123 CITY OF BROOKLYN CENTER LOGIS By: By: Myrna Kragness Date Its: Mayor Its: By: By: Michael McCauley Date Its: City Manager Its: 1 ATTACHMENT B Date Date 266989v1 (S1S) BR291-3