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HomeMy WebLinkAbout2013-090 CCRMember Dan Ryan introduced the following resolution and moved its adoption: RESOLUTION NO. 2013-90 RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT FOR DEVELOPMENT, OPERATIONS, AND MAINTENANCE OF AN INSTITUTIONAL COMMUNICATIONS NETWORK BETWEEN THE CITY OF BROOKLYN CENTER AND LOGIS WHEREAS, the City has an opportunity to work with LOGIS to expand the fiber optic network between 63 rd/Xerxes and 69 th/Shingle Creek Parkway and City of Brooklyn Center Public Works Maintenance Facility and Police Department; and WHEREAS, the City has an opportunity to work with LOGIS to allow access to the City of Brooklyn Center's existing fiber optic network between City of Brooklyn Center Public Works Maintenance Facility and 69 th/France; and WHEREAS, the cost of the opportunity is advantageous because of this partnership; and WHEREAS, funding is available in the Approved 2013 Technology Fund Budget. NOW, THEREFORE, BE IT RESOLVED 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 Agreement for Development, Operations, and Maintenance of an Institutional Communications Network between the City of Brooklyn Center and LOGIS, attached hereto and incorporated herein by reference as Attachment I. August 12, 2013 Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member Lin Myszkowski and upon vote being taken thereon, the following voted in favor thereof: Tim Willson, Carol Kleven, Kris Lawrence-Anderson, Lin Myszkowski, and Dan Ryan and the following voted against the same: none; whereupon said resolution was declared duly passed and adopted. RESOLUTION NO. 2013-90 Attachment I AGREEMENT FOR DEVELOPMENT, OPERATION, AND MAINTENANCE OF AN INSTITUTIONAL COMMUNICATIONS NETWORK THIS AGREEMENT ("Agreement") is entered into this 12 th day of August, 2013, by and between Local Government Information Systems, a Minnesota joint powers organization ("LOGIS"), and the City of Brooklyn Center, a Municipal corporation and Member of LOGIS ("Brooklyn Center"). RECITALS A.The purpose of this Agreement is to establish the terms and conditions of the sharing •of fiber optic infrastructure including the planning, installation, operation, maintenance and improvement of this infrastructure to allow an independent institutional communications network ("I-Net") that will serve the independent interests of Brooklyn Center and LOGIS. B.This agreement acknowledges that LOGIS is a joint power organization and the rights of access of LOGIS extend to its membership. C.Brooklyn Center and LOGIS jointly and cooperatively, intend to plan, design, install, operate, maintain and develop an I-Net system as more described in Exhibit A and Exhibit B. D.LOGIS has entered into other agreements, substantially identical to this Agreement, with other Members regarding other portions of the I-Net. Brooklyn Center acknowledge that unique circumstances presented by the I-Net within other Members' boundaries may require additional or modified provisions and therefore agrees that this Agreement is independent from other similar agreements with other Members or other non-Member parties, and LOGIS. NOW, THEREFORE, in consideration of the mutual promises, covenants and undertakings herein contained, the parties agree as follows: 424422v3 CLL BR291-4 1 RESOLUTION NO. 2013-90 Attachment I 1.Recitals. The Recitals are incorporated into the Agreement. 2.Design. Brooklyn Center and LOUIS will jointly and cooperatively design the I-Net as described in Exhibit A. All parties acknowledge that the other parties intend to utilize the I-Net each for its own separate purposes. Each agrees that to the extent possible, the I-Net design will accommodate the respective purposes of each party. 3.Installation. Brooklyn Center is responsible for all aspects of the I-Net installation and LOGIS is obligated to provide assistance to Brooklyn Center, and each party will keep the other advised of all schedules, changes, and other relevant matters during the installation. 4.I-Net Ownership. Parties agree to the I-Net strand ownership allocation as set forth in Exhibit B. Each party owns and is responsible for any additional conduit or strands it installs subsequent to this agreement. Each party's ownership rights in the I-Net will survive a member's withdrawal from LOGIS or termination of this Agreement as set forth in section 13 below. Brooldyn Center owns and will continue to own conduit in place to be used for purposes of this Agreement and existing on the date of this Agreement. 5.Operation, Maintenance, Repair. All parties are each solely responsible for their respective I-Net operations, maintenance, and repair. Each party must give the other party written notice of any intended service, repair, or replacement of the I-Net fiber or other facilities ("Facilities") as defined under "Right of Access". 6.Right of Access. All parties and their respective authorized designees, may access the I-Net for the purposes described in this Agreement, subject to all necessary governmental approvals. Each must provide the other With seven (7) days' notice prior to such access, except in the case of emergencies. In an emergency, either party may respond as necessary and must provide notice to the other within 24 hours of the action taken. All parties agree to 424422v3 CLL BR291-4 2 RESOLUTION NO. 2013-90 Attachment I make arrangements to have their termination facilities available to parties' authorized maintenance personnel on a twenty-four hour, seven day a week basis. 7. Costs. Costs associated with the I-Net will be allocated as follows: i.Initial Planning and Design. Brooklyn Center and LOGIS will share the costs associated with initial planning and design of the I-Net on a percentage of fiber owned basis. Planning and design costs include all third-party professional costs necessary to carry out the initial planning and design, including I-Net architectural, engineering and legal costs. To the extent either party provides services from its own salaried-staff and such services are agreed to be reasonable contributions to the initial planning and design, the staff contributions will be deducted from the share of the party providing services at an agreed upon rate customary for the type of service performed. ii.Installation. Brooklyn Center is responsible for the purchase of the facilities and the installation of the I-Net as defined in Exhibit A. Brooldyn Center will pay the initial cost and shall bill LOGIS for its obligation as defined in Exhibit A. LOGIS recognizes these are estimated installation costs and agrees to pay actual costs within a maximum of 110 percent of estimated costs. LOGIS shall reimburse Brooklyn Center within thirty days of receipt of the bill from Brooklyn Center. Each party remains obligated to pay for its share of cost of any installation benefiting it and authorized by it, regardless of whether the party withdraws from LOOTS or terminates this Agreement. iii. Operations and Maintenance. Brooklyn Center and LOGIS will share the operations and maintenance costs pro rata based on the number of each party's fiber optic strands at the location(s) of the operation or maintenance. The expense of I-Net 424422v3 CLL BR291.4 3 RESOLUTION NO. 2013-90 Attachment I operational, maintenance, or repair work necessary will be borne solely by the party requiring it. In situations where operational, maintenance, or repair work is required by more than one party, expenses will be borne by all parties requiring said work and shared pro rata based on the number of each party's fiber optic strands at the location(s) of repair. iv. Locates. Brooklyn Center, is solely responsible for locates and the cost of locates required under Minnesota Statutes § 216D.01, Gopher One Call. Said provision notwithstanding, Brooklyn Center may arrange and coordinate locate services in any manner they deem appropriate to comply with this statute. (e.g., Gopher One Call notifications, locate service requests, billing, and payments) 8.Additional Facilities. Each party reserves the right to add facilities to the I-Net as needed. If a party decides to add facilities, it will notify the other parties prior to entering into any commitment regarding the addition. Notice of the intended additional facilities purchase is for the purpose of identifying potential shared or reduced costs if the other parties seek or agree to add their own additional facilities. No party may prevent any other from purchasing and installing additional facilities for its own uses, provided, however, that no additional facility may materially impede or jeopardize the other parties use of the I-Net. 9.I-Net Use by Non-LOGIS Member. If a party decides to serve a non-LOGIS member using the I-Net, the party so choosing is fully responsible for gaining all regulatory approvals necessary, if any, and must indemnify and hold harmless the other party against any and all claims or damages by the non-member or other third party. Nothing in this paragraph shall be deemed a waiver by either party of the limitations on liability set forth in Minnesota Statutes, Chapter 466. 424422v3 CLL BR291-4 4 RESOLUTION NO. 2013-90 Attachment I 10.Liability Limitation. Each party is liable to the other only to the extent the negligent actions or inactions of one proximately cause direct out-of-pocket cost to the other. No party is responsible for lost services, lost revenues, lost profits, indirect, consequential or special damages or attorneys' fees incurred by another. 11.Indemnity and Duty to Defend. All parties agree to indemnify and hold each other harmless from any and all liability on account of injury to third parties or damage to third party property occasioned by the negligent actions or inactions of another. The party seeking to be indemnified and defended shall provide timely notice to the others when the claim is brought. The party undertaking the defense shall retain all rights and defenses available to the party indemnified and no immunities are hereby waived that are otherwise available to the other parties. Nothing in this paragraph shall be deemed a waiver by either party of the limitations on liability set forth in Minnesota Statutes, Chapter 466. 12.Insurance. Each party represents that it carries the insurance coverage necessary for municipal, county, or joint powers organizations under Minnesota law and has and will maintain coverage for I-Net operations. No party waives its immunities under Chapter 466. 13.Termination. This Agreement may be terminated only under the following circumstances: i.By mutual agreement of the parties expressed in writing. ii.By material breach of a party that has not been cured after written notice and a reasonable opportunity to cure. iii. Subject to receipt of full payment for the pro-rata I-Net share, the parties' respective ownership of the I-Net shall survive any termination of this Agreement, whether by material breach by either party, withdrawal of parties from LOUIS, dissolution of LOGIS or otherwise. Each party agrees that the other party's right of access to the I- Net for operation, maintenance, expansion, or other necessary purposes shall survive 424422v3 CLL BR291-4 5 RESOLUTION NO. 2013-90 Attachment I termination and that all parties shall cooperate fully with each other and with the other Members under this provision to allow LOGIS to continue its operations of the I-Net for LOGIS purposes. iv. Dissolution of LOGIS. All parties ownership rights in the I-Net shall be governed by the terms set forth in the LOGIS Joint and Cooperative Agreement and By-Laws. 15 Dispute Resolution. If the parties cannot agree on any matter arising out of this Agreement, after a reasonable period of good faith negotiations, they agree to engage a qualified third party to mediate the disagreement, and share the costs of the mediator on an equal basis. The parties will work in good faith with the mediator to find an acceptable solution and must reduce any settlement agreement to writing. Any such agreement must be incorporated into and made a part of this Agreement. If a mediated agreement cannot be reached, each party has available to it all rights in law or equity. 16 Licenses, Permits and other Regulatory Approvals. Each party agrees to obtain any and all required licenses, permits or other governmental approval necessary to effectuate any work initiated by the party. For joint projects, Brooklyn Center will have primary responsibility for obtaining such peimission or approvals. 17 Covenant of Mutual Cooperation and Continued Access. Notwithstanding any provision in this Agreement to the apparent contrary, the parties agree that the intent of this Agreement is to allow the parties to share the cost of an I-Net installation, operation, maintenance, repair and expansion on fair and equitable terms and that each party will cooperate in effectuating the fulfillment of that intent by the other party, including but not limited to allowing continued access to the I-Net whether this Agreement remains in existence and whether Brooklyn Center withdraws from LOGIS. 424422v3 CLL BR291-4 RESOLUTION NO. 2013-90 Attachment I IN WITNESS WHEREOF, the duly authorized officers of the undersigned have executed this Agreement on behalf of the parties hereto. For City of Brooklyn Center By: By: Title: Mayor Title: City Manager Date: Date: For LOOTS By: Title: Date: 424422v3 CLL BR291-4 7 Attachment I RESOLUTION NO. 2013-90 EXHIBIT A — I-NET NEW CONSTRUCTION Segment 1 — Brooklyn Center will install 48 strand single mode fiber optic cable running from 63 rd and Xerxes hand hole #40 to 6911 and Shingle Creek Parkway handhold #49. Estimated cost: $15,000 split evenly between LOUIS and Brooklyn Center. Segment 2— Brooklyn Center will install 48 strand single mode fiber optic cable running from Brooklyn Center Public Works hand hole #27 to 67 1 and Brooklyn Center Police Department. Estimated cost: $15,000 split evenly between LOGIS and Brooklyn Center. Each party will be responsible for providing the splicing and termination information at the time of installatiOn for their unique usage. Each party will be responsible for unique costs related to their termination and splicing. 424422v3 CLL BR2914 8 Attachment I RESOLUTION NO. 2013-90 EXHIBIT B — I-NET OWNERSHIP ALLOCATION AFTER TRANSFER Strand and conduit ownership of new fiber optic segments: Segment 1 — 63 rd and Xerxes handhold #40 to 69 th and Shingle Creek Parkway handhold #49- 48 strand single mode fiber optic cable: •Brooklyn Center - 42 strands •LOGIS - 6 strands Segment 2— Brooklyn Center Public Works hand hole #27 to the Brooklyn Center Police Department —48 strand single mode fiber optic cable: •Brooklyn Center -32 strands •LOGIS - 12 strands •Hennepin County - 4 strands Brooklyn Center existing fiber optic segments: Segment 3 — Brooklyn Center Public Works hand hole #27 to hand hole to 69' and France Avenue handhold #46 - 48 strand single mode fiber optic cable: •Brooklyn Center - 28 strands •LOGIS - 12 strands •Hennepin County - 8 strands 424422v3 CLL BR291-4 9