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HomeMy WebLinkAbout2013-091 CCRMember Dan Ryan introduced the following resolution and moved its adoption: RESOLUTION NO. 2013-91 RESOLUTION AUTHORIZING THE EXECUTION OF A FIBER AGREEMENT BETWEEN THE CITY OF BROOKLYN CENTER AND HENNEPIN COUNTY WHEREAS, the City of Brooklyn Center has an opportunity to work with Hennepin County to expand the fiber optic network between 69 th /France and City of Brooklyn Center Public Works Maintenance Facility and City of Brooklyn Center City Hall and Hennepin County Brookdale Service Center; and WHEREAS, the City has an opportunity to work with Hennepin County to allow access to the City of Brooklyn Center's existing fiber optic network between City Hall, Police Department and Public Works Maintenance Facility; and WHEREAS, the City has an opportunity to work with Hennepin County to allow access to Hennepin County's existing fiber optic network between Hennepin County Family Service Center (7051 Brooklyn Boulevard) and 69 th/France; and WHEREAS, the cost of the opportunity is advantageous because of this partnership; and WHEREAS, the fiber optic expansion is funded by Hennepin County. 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 Fiber Agreement between the City of Brooklyn Center and Hennepin County, attached hereto and incorporated herein by reference as Attachment I. August 12, 2013 Date ATTEST: City Clerk Mayor 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, Dris 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. 2013-91 Attachment I FIBER AGREEMENT THIS AGREEMENT ("Agreement") is entered into this 12 th day of August, 2013, by and between Hennepin County, State of Minnesota, ("Hennepin County"), and the City of Brooklyn Center, a Municipal corporation ("Brooklyn Center"). RECITALS WHEREAS, the purpose of this Agreement is to establish each party's rights, duties and obligations in regard to the fiber optic infrastructure more fully described herein ("I-Net"). NOW, THEREFORE, in consideration of the mutual promises, covenants and undertakings herein contained, the parties agree as follows: 1.Recitals and Definitions. The Recitals are incorporated into the Agreement. As used herein, the non-capitalized term 'fiber' shall mean a strand or strands of single-mode fiber optic cable, located in conduit, duct, vault or the like as those terms are otherwise known and accepted throughout the technology industry. 2.Design. Brooklyn Center shall design the fiber optic infrastructure I-Net as more fully described in Exhibit A and Exhibit B. Hennepin County shall have the right to approve the Design (the approved design may be referred to herein as the "Design"). In the event that Hennepin County does not approve the Design, Hennepin County may immediately terminate this Agreement and, thereupon, shall be released from its obligation to pay any amount hereunder and released from its obligation to transfer any interest in the Six — Segment 6 Stands (as defined herein). 3. Installation and Testing. Pursuant to the Design, Brooklyn Center shall install, or have installed, fiber optic cable in Segment 1 and Segment 2 pursuant to the Design and as more fully described in Exhibit A ("Installation"). In the event Brooklyn Center engages a third- 427631v2 BR291-4 RESOLUTION NO. 2013-91 Attachment I party to perform the Installation, Brooklyn Center shall select the installation contract vendor(s) pursuant to applicable law, enter an agreement with contract vendor(s), manage performance pursuant to the terms of the said agreement and pay said contract vendor(s) pursuant to the requirements of applicable law. Brooklyn Center shall keep Hennepin County advised of all schedules, changes, and other relevant matters during the installation. Brooklyn Center shall notify Hennepin County when Installation is complete and ready for testing. Hennepin County shall notify Brooklyn Center if the Installation does not conform to the Design and this Agreement. If Hennepin County does not notify Brooklyn Center within sixty (60) days, the Installation shall be deemed "Accepted" (or "Acceptance"). 4. I-Net Ownership. A.General. As of the date of this Agreement, Hennepin County owns all right, title and interest in and to that portion of the I-Net referred to as Segment 6, and Brooklyn Center owns all right, title and interest in and to the remainder of the I-Net. B.Hennepin County Fiber. Upon Acceptance of the Installation, Henn' epin shall thereby transfer and assign all right, title and interest in and to six (6) strands of fiber optic cable in Segment 6 as further described in Exhibit B (the "Six - Segment 6 Strands"). For clarification and not limitation, Hennepin County shall retain ownership of all right, title and interest in and to the remaining forty-two (42) strands of fiber optic cable in Segment 6 as more fully described in Exhibit B. C. Conduit. Each party will continue to own conduits it installed and owned prior to the date of this Agreement. Brooklyn Center will own new conduits installed under this Agreement. 427631v2 BR291-4 2 RESOLUTION NO. 2013-91 Attachment I D. Right to Use. (i)Upon Acceptance of the Installation and subject to the provisions herein, Brooklyn Center shall thereby transfer and assign to Hennepin County all right, title and interest in and to the strands of fiber optic strands owned by Brooklyn Center and described in Exhibit B. (ii)Upon Acceptance of the Installation and subject to the provisions herein, Hennepin County shall thereby transfer and assign all right, title and interest to the Six Segment 6 Strands (as defined herein). 5.Operation, Maintenance, Repair. Each party will be solely responsible for maintenance and repair of all strands that it owns. Each party must give the other party notice of any scheduled service, repair, or replacement of said fiber or other facilities. 6.Right of Access. Upon notification by a party that it, or its agent or designee, needs to maintain, repair or otherwise access owned fiber pursuant to Section 5, the so notified party shall provide necessary access, ingress and egress to the property, buildings, structures or other places owned or controlled by the party and where the fiber is physically located for the purposes of operation, maintenance and repair and 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 wherefore the performing party will provide notice as soon as possible. Each party will exercise best efforts to have its 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. Installation. Brooklyn Center shall pay all costs, fees and expenses related to Installation including but not limited to purchase of the facilities as well as payment 427631v2 BR2914 3 RESOLUTION NO. 2013-91 Attachment I of Installation costs, permits and licenses. Upon Hennepin County's Acceptance of the Installation, Brooklyn Center shall bill Hennepin County for the actual costs of Installation. Hennepin County shall pay the invoiced amount except that, in no event shall Hennepin County pay more than 110 percent of the amount indicated in Exhibit A for Segment 1 installation or more than 110 percent of the amount indicated in Exhibit A for Segment 2 installation. Brooklyn Center acknowledges and agrees that it shall be responsible for any amount in excess of said 110 percent cap. Hennepin County shall pay Brooklyn Center within thirty days of receipt of the invoice from Brooklyn Center. Operations and Maintenance. 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 fiber optic strands owned by each party at the location(s) of repair. Locates. Brooklyn Center is solely responsible for providing locates required under Minnesota Statutes § 216D.01, Gopher One Call, for all conduits owned by Brooklyn Center. Hennepin County is solely responsible for providing locates required under Minnesota Statutes § 216D.01, Gopher One Call, for all conduits owned by Hennepin County. Each party may arrange and coordinate locate services in any manner it deems appropriate to comply with this statute (e.g., Gopher One Call notifications, locate service requests, billing, and payments). The party providing a locate shall pay all costs, fees and expense related to said locate. The party providing the locate may bill the other party for a pro rata share of the cost of the locate based on the number of strands each party owns at the location of the locate services. 427631v2 BR291-4 RESOLUTION NO. 2013-91 Attachment I 8.I-Net Use by an Outside Party. If either party allows third parties to use the fiber optic cables it owns, 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 third party. 9.Liability Limitation. Nothing herein shall be deemed a waiver by either party of the limitations on liability set forth in Minnesota Statutes, Chapter 466. 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. 10.Indemnity and Duty to Defend. Each party shall be responsible for its own acts and omissions and the results thereof to the extent authorized by law. Each party agrees to defend, indemnify and hold the other harmless from any and all liability, claims, causes of action, judgments, damages, losses, costs, or expenses, including reasonable attorney's fees, resulting directly or indirectly from the party's negligent actions or inactions or the negligent actions or inactions of the party's agents or designees. 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. 11.Insurance. Each party represents that it is duly self-insured or 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. 12. Termination. This Agreement may be terminated only under the following circumstances: i. By mutual agreement of the parties expressed in writing. 427631v2 BR291-4 5 RESOLUTION NO. 2013-91 Attachment I ii.At any time, Hennepin County may transfer ownership of any or all of the fiber optic strands transferred to it by Brooklyn Center under this Agreement by providing sixty (60) days' written notice of termination. Upon the effective date of said termination, Hennepin County shall no longer be obligated for any costs related to the transferred fiber optic strands including but not limited to the costs of maintenance, operation or locates. iii.Each party agrees that the other party's right of use of fiber and right of access to the I-Net for operation, maintenance, expansion, or other necessary purposes shall survive termination and that all parties shall cooperate fully with each other to continue the operation of the I-Net. 13.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 permission or approvals. 14.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. 15. No Relationship. Each party shall select the means, method, and manner of performing its obligations hereunder. Nothing is intended or should be construed as creating or establishing the relationship of a partnership or a joint venture between the parties or as 427631v2 BR291-4 6 RESOLUTION NO. 2013-91 Attachment I constituting either party as the agent, representative, or employee of the other for any purpose. 16.Comply with Applicable Law. Each party shall comply with applicable state, federal and local law, including but not limited to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (MGDPA), Minnesota Statutes Section 16C.05, Subd. 5 and Minnesota Statutes Section 471.425. 17.Subcontractors. Each party binds itself, its pat tilers, successors, assigns and legal representatives to the other party for all covenants, agreements and obligations contained in this Agreement. 18.Merger and Modification. It is understood and agreed that the entire Agreement between the parties is contained herein and that this Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter. All items that are referenced or that are attached are incorporated and made a part of this Agreement. If there is any conflict between the teaus of this Agreement and referenced or attached items, the terms of this Agreement shall prevail. Any alterations, variations, modifications, or waivers of provisions of this Agreement shall only be valid when they have been reduced to writing as an amendment to this Agreement signed by the parties. The express substantive legal terms contained in this Agreement may not be altered, varied, modified or waived by any change order, implementation plan, scope or work, development specification or other development process or document. 19.Minnesota Law Governs. The Laws of the State of Minnesota shall govern all questions and interpretations concerning the validity and construction of this Agreement and the legal relations between the parties and their performance. 427631v2 BR291 -4 RESOLUTION NO. 2013-91 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 Hennepin County By: Title: Date: 427631v2 BR29I-4 8 RESOLUTION NO. 2013-91 Attachment I EXHIBIT A — I-NET NEW CONSTRUCTION Segment 1 — Brooklyn Center will install 48 strand single mode fiber optic cable running from 69 th and France to Brooklyn Center Public Works hand hole #27. Estimated costs: $14,000. Costs will be paid by Hennepin County. Segment 2— Brooklyn Center will install a 48 strand single mode fiber optic cable and conduit from the Hennepin County Brookdale Service Center to the Brooklyn Center City Hall hand hole #20. Estimated cost: $16,000. Costs will be paid by Hennepin County. Each party will be responsible for providing the splicing and teimination information at the time of installation for its unique usage. Each party will be responsible for unique costs related to its termination and splicing. 427631v2 BR291-4 Attachment I RESOLUTION NO. 2013-91 EXHIBIT B — I-NET OWNERSHIP ALLOCATION AFTER TRANSFER Strand and conduit ownership of new fiber optic segments: Segment 1 — 69 th and France to Brooklyn Center Public Works hand hole #27 — 48 strand single mode fiber optic cable: •Brooklyn Center will own the conduit and 40 strands •Hennepin County will own 8 strands Segment 2— Hennepin County Brookdale Service Center located at 6125 Shingle Creek Parkway to the Brooklyn Center City Hall hand hole #20 — 48 strand single mode fiber optic cable: •Brooklyn Center will own the conduit and 36 strands •Hennepin County will own 12 strands Segment 3 — Brooklyn Center Public Works hand hole #27 to Brooklyn Center Police Department — 48 strand single mode fiber optic cable: •Brooklyn Center will own the conduit and 44 strands •Hennepin County will own 4 strands Brooklyn Center existing fiber optic segments: Segment 4— Brooklyn Center City Hall hand hole #20 to Brooklyn Center Public Works hand hole #27 — 24 strand single mode fiber optic cable: •Brooklyn Center will own the conduit and 20 strands •Hennepin County will own 4 strands Segment 5 — Brooklyn Center City Hall hand hole #20 to Brooklyn Center Police Department —72 strand single mode fiber optic cable: •Brooklyn Center will own the conduit and 46 strands •LOGIS will own 24 strands •Hennepin County will own 2 strands Hennepin County existing fiber optic segments: Segment 6 — 7051 Brooklyn Boulevard to the Brooklyn Center hand hole on 69 th and France - 48 strand single mode fiber optic cable: •Hennepin County will own the conduit and 42 strands •Brooklyn Center will own 6 strands 427631v2 BR291-4 10