HomeMy WebLinkAbout2023-045-05/16/2023-AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY AND LARIMER COUNTY FORRESOLUTION 2023-045
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL
AGREEMENT BETWEEN THE CITY AND LARIMER COUNTY FOR
EXTENSION OF BROADBAND UTILITY SERVICES INTO
UNINCORPORATED LARIMER COUNTY BEGINNING WITH AREAS NEAR THE
HARMONY ROAD AND TAFT HILL ROAD INTERSECTION
WHEREAS,the City of Fort Collins (“City”)and Larimer County (“County”)are,as a
legal matter,each independently authorized to acquire and operate independent municipal
broadband utility facilities and networks;and
WHEREAS,the City is a Colorado home-rule municipality that has undertaken to establish
and operate a municipal broadband utility known as Fort Collins Connexion (“Connexion”),which
it began operating in 2019,relying on regional partnerships with other governmental entities,
broadband utility enterprises,and owners of fiber optic cable,capitalizing on regional municipal
broadband opportunities;and
WHEREAS,in 2016,Larimer County voters approved a ballot measure authorizing the
County to provide regional broadband services in unincorporated areas of the County,including
entering into intergovernmental agreements to access municipal broadband utility networks;and
WHEREAS,in studying how to efficiently and cost-effectively serve residents with
broadband communication services,the County sought to collaborate with adjacent municipalities
to prioritize areas for initial service extension,based on cost for service,adjacency to municipal
broadband facilities,underserved areas,and socio-economic status;and
WHEREAS,in light of the cost savings and potential future benefits of jointly supported
communication services,the City and County desire to enter into the Intergovernmental
Agreement for Connexion Communication Services Provision in Larimer County,in substantially
the form attached hereto as Exhibit “A”(the “IGA”)and incorporated by this reference;and
WHEREAS,in furtherance of the benefits available through shared expansion of
broadband communication facilities with the City,the County has agreed to fund all design and
construction for Connexion to extend broadband communication facilities and services to
approximately one-thousand premises located in the vicinity of Harmony Road and Taft Hill Road
in unincorporated Larimer County in exchange for receiving a portion of the service revenues
collected in these areas,up to the amount of the County’s design and construction funding,subject
to annual appropriation by the City,all as described in the work order attached to the IGA;and
WHEREAS,subsequent projects to extend broadband communication facilities and
services to areas within unincorporated Larimer County will be authorized through similar work
orders subject to the terms of the IGA;and
WHEREAS,as Colorado governmental entities,the City and County are each authorized,
pursuant to Colorado Revised Statutes Section 29-1-203,to cooperate or contract with one another
to acquire or provide any government function,service,or facility lawfully authorized to each;and
WHEREAS,the City Council has determined that the IGA is in the best interests of the
City,its citizens and ratepayers to accomplish the purposes set forth therein,and that the City
Manager should be authorized to execute the IGA and related work orders between the City and
the County.
NOW,THEREFORE,BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1.That the City Council hereby makes and adopts the determinations and
findings contained in the recitals above.
Section 2.That the City Council hereby approves the IGA and authorizes the City
Manager,in consultation with the City Attorney and consistent with this Resolution,to finalize the
IGA and its exhibits,and to execute it on behalf of the City,in substantially the form attached
hereto as Exhibit “A,”including Work Order #001 attached to the IGA.
Section 3.That in addition,the City Manager is authorized,during the term of the IGA
and in consultation with the City Attorney,to approve and execute such amendments to the IGA
and work orders in furtherance thereof as the City Manager determines to be reasonably necessary
and appropriate to:(a)protect the City’s interests or to effectuate the purposes of this Resolution;
(b)provide a benefit to the City;(c)limit the City’s repayment obligation to no greater than the
obligation set forth in Work Order #001 to the IGA;and (d)otherwise limit the City’s financial
obligation to expenditure of funds already appropriated and approved by Council or conditioned
upon such appropriation.
Passed and adopted at a regular meeting of the Council of the City o ort Collins this 16th
day of May,2023.
a’
ATTEST:
‘
City Clerk
/
EXHIBIT A TO RESOLUTION 2023-045
INTERGOVERNMENTAL AGREEMENT FOR CONNEXION COMMUNICATION
SERVICES PROVISION IN LARIMER COUNTY
THIS INTERGOVERNMENTAL AGREEMENT FOR CONNEXION COMMUNICATION
SERVICES PROVISION IN LARIMER COUNTY (“Agreement”)is made and entered into this
____day of ,2023,by and between the City of Fort Collins (“Fort Collins”or “City”)
and Larimer County (“Larimer”or “County”)(collectively the “Parties”).
WHEREAS,voters of Fort Collins and Larimer County,respectively,approved legally
required ballot measures at general elections,authorizing each entity to provide services
contemplated in Colorado Revised Statues,Title 29,Article 27,including cable television
service,telecommunications service,and advanced service (collectively,“Communications
Services”);and
WHEREAS,Fort Collins is a home-rule municipality which has undertaken the
financing,construction,and all further operations to establish a municipal utility for the provision
of Communications Services,branded as “Fort Collins Connexion”(“Connexion”);and
WHEREAS,Larimer County is a statutory county that wishes to provide its residents
access to high-quality Communications Services;and
WHEREAS,to provide reliable,competitive,and cost-effective Communications
Services,the Parties each desire to collaborate with neighboring governments or communications
enterprises,to leverage resources and efficiencies for the benefit of each party’s residents and
ratepayers;and
WHEREAS,Connexion has the network infrastructure necessary to provide robust
Communications Services to Larimer County residents located both in enclaves within the City
of Fort Collins and unincorporated areas outside the City;and
WHEREAS,Larimer County does not currently have the financial or institutional means
to directly provide such Communications Services to its residents and would benefit from
engaging Connexion to deliver such services;and
WHEREAS,to facilitate Connexion to develop the infrastructure necessary to provide
Communications Services to Larimer County residents in the Fort Collins surrounding area,and
other portions of unincorporated Larimer County as identified by the Parties under this
Agreement;and
WHEREAS,as Colorado governmental entities,Fort Collins and Larimer County are
authorized,pursuant to Cob.Const.art.XIV,§18(2)(a)and C.R.S.§29-1-203,to cooperate or
contract with one another to acquire or provide any government function,service,or facility
lawfully authorized to each.
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EXHIBIT A TO RESOLUTION 2023-045
NOW,THEREFORE,in consideration of the mutual covenants and agreements contained
herein,the Parties agree as follows:
1.Grant of Access.Larimer County grants Fort Collins the authority to enter any and all
parts of Larimer County to provide Communications Services.This access encompasses
the right to provide Communications Services to Larimer County residents natural
persons,commercial enterprises,or otherwise -as well as install and maintain
Communications Services facilities to serve such residents.By this grant of access,
Larimer County does not purport to convey,nor does the City purport to receive,the right
to enter private property that would require permission from private entities,including
natural persons or corporate entities,for access to provide Communications Services.
Larimer County will grant Connexion access to all County owned rights of way through
its permitting process to deliver Communication Services to Larimer County residents.
Access shall not occur prior to the appropriate and necessary permit(s)being issued.
Access granted by Larimer County shall not impede or otherwise violate any other
existing agreements with other parties and shall be subject to any existing rights or
privileges of third-parties.
2.Work Funded by Larimer County to be Performed by Connexion.In its sole and
absolute discretion,Connexion shall design and construct Communications Services
facilities (the “Work”)to serve as many Larimer County communities and properties as
practicable with the Larimer Funding defined in each Exhibit A-Work Order,attached
hereto and incorporated by reference.For each Larimer County community in which
County-funded Work will be completed,a Work Order in the form illustrated in Exhibit
A (an “Exhibit A-Work Order”)must be completed in advance.The Work under each
Exhibit A-Work Order shall be performed in a good and workmanlike manner and in
accordance with applicable laws.The Scope of Work is further defined in each Exhibit
A-Work Order.While Connexion shall retain authority to make decisions about
construction and delivery of Communications Service,Larimer shall have authority to
determine which neighborhoods and general areas of Larimer County will receive priority
in the execution and performance of the Work as set forth in the applicable Work Orders.
3.Service Commitment.Unless this Agreement is terminated according to Section 12,and
subject to continuous operation of such service during the period,Connexion shall
•provide continuous availability of broadband internet service to Connexion customers
in any area of the County,where the necessary Work has been funded through a Work
Order under this Agreement;and
•maintain such service for a 25-year period to be calculated from the date the first
unincorporated property may be served,subject to such service interruptions as may
reasonably arise or occur,and to such terms conditions,customer class tiers,and
rates as Connexion shall impose on such service in the normal course of its business
and operations;and
•this obligation shall not remain in effect in the event Connexion ceases operations.
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EXHIBIT A TO RESOLUTION 2023-045
4.Term.This Agreement shall be effective from the date first written above and shall not
terminate unless as provided in Section 12,including when a party defaults under the
terms of the Agreement,the non-defaulting party provides notice of such default,and
default is not cured within thirty (30)days of receipt of notice.
5.Costs and Revenues.Larimer shall provide each block of Larimer Funding associated
with each respective Exhibit A-Work Order prior to initiation of the Work by
Connexion under such Work Order.Thereafter,Connexion shall be solely responsible for
all costs related to providing the Communications Services described in each Exhibit A-
Work Order.Connexion shall be solely entitled to the revenues generated by the
provision of the Communications Services,except as may be described in an Exhibit A-
Work Order.In the event that the Parties determine that cost-sharing or revenue-sharing
is justified for some part of the Communications Services provided under this Agreement,
they shall address cost-sharing or revenue-sharing in the Exhibit A-Work Orders.Any
such Work Orders shall be subject to the approval of the City Council or other City
authority to the extent required under the City’s Charter and Code or other applicable
laws.
6.Ownership and Management of Communications Services Facilities.Connexion shall
have and retain control and ownership of the facilities constructed as part of the Work
under any Work Order or used by Connexion to provide Communications Services in
Larimer County.Any issues that may arise in the construction and management of the
physical fiber network shall remain entirely within Connexion’s control and discretion
and are outside the scope of this Agreement.
7.Permitting and Franchise Requirements.Connexion’s installation and maintenance
activities remain subject to all applicable permitting requirements,including Larimer
County right-of-way rules.Any cable television service,as defined by C.R.S.§29-27-
102(2),that Connexion may offer to its customers shall be subject to any franchise
requirement that may exist under Larimer County’s laws.
8.Records and Audits.The City will maintain complete and accurate records of all
charges incurred for the Work,in accordance with generally accepted accounting
principles,for a period of thirty-six (36)months from the date of termination or
completion of the Work.Larimer will have the right to inspect the City’s records relating
to the Work at reasonable times and upon reasonable notice and to retain copies thereof.
Such records will include:(i)the date(s)Work was performed;(ii)a description of the
Work performed;(iii)names of the individuals or subcontractors performing the Work;
(iv)hours worked;(v)billing or compensation rate for the Work;and (vi)all other
expenditures required for the completion of the Work.In the event of a disagreement
about the use of the County Funds,the parties agree to work in good faith to resolve such
disagreement.
9.Procurement.In procuring goods and services for the Work,the City shall comply with
all applicable laws,rules,and regulations applicable to City procurements.
Notwithstanding any other provision of this Agreement,the City shall retain full
Page 3 of 12
EXHIBIT A TO RESOLUTION 2023-045
discretion and authority in determining the terms of bidding related to the Work,the
project delivery method,the project design,the letting of contracts for construction,
construction oversight,and budget management.
10.Compliance with Law.The City shall be solely responsible for obtaining and
maintaining any required permits,including Larimer County right-of-way permits,and
for complying with all applicable laws and regulations relating to the Work,including but
not limited to safety,construction,easements,and employment laws and regulations.
11.Insurance.Fort Collins shall obtain and keep in full force and effect general liability
insurance or comparable self-insurance covering its actions and activities permitted under
this Agreement in an amount at least equivalent to the City’s liability under the Colorado
Governmental Immunity Act,C.R.S.§24-10-101,et seq.The City shall ensure that any
subcontractor maintains all insurance customary for the completion of the Work as
required by this Agreement.
12.Termination.
a.Termination for Convenience.Upon 30 days written notice,Larimer may terminate
this Agreement in whole or in part if it determines,in its sole discretion that
termination is in Larimer’s best interests.After notice of termination has been given,
the City and all subcontractors shall stop Work on the cancellation date specified in
the notice.
b.Termination for Cause.Either party may terminate this Agreement in the event the
other party is in default of its obligations under this Agreement and fails to
substantially cure the default within thirty (30)days following written notice from the
other party;provided,however,that if such default by nature cannot reasonably be
cured with due diligence within thirty (30)days,then the defaulting party shall
continue to diligently pursue a cure within sixty (60)days of receiving notice.
c.Effect of Termination.In the event of termination for convenience or cause,the City
will be compensated for any Work performed prior to the date of termination that may
exceed the Larimer Funding;however,the City will not be reimbursed for any
anticipated work not otherwise in an Exhibit A-Work Order or future profit.
Larimer’s obligation to pay the City for all Work performed in reliance on an Exhibit
A-Work Order shall survive termination of this Agreement.Despite any termination,
Connexion shall retain the right to have and maintain its Communication Service
Facilities that exist in Larimer County as of the date of termination and provide
Communications Service to any property that is served or capable of being served
(i.e.,connected for service whether or not the property is taking service)as of the date
of termination.In the event of termination for convenience or cause and after the City
is reimbursed for all costs of the portion of the Work completed up to the date of
termination,the City shall refund Larimer any prepaid portion of the funded amount
that exceeds the cost of Work.
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EXHIBIT A TO RESOLUTION 2023-045
13.Appropriations.Neither Party shall have an obligation to continue this Agreement in any
fiscal year in which no such appropriation is made and a termination in such a fiscal year
shall not be considered default.Payment pursuant to any revenue sharing obligations set
forth in an Exhibit A-Work Order shall similarly be subject to annual appropriation,
except that any revenues collected or receivable up to the date of termination shall be
deemed already appropriated and subject to any revenue sharing obligations set forth in
an Exhibit A-Work Order.
14.Assignment.The Parties cannot assign the right or responsibilities of this Agreement
without written agreement from the other party.
15.Continuing Effect of Agreement.All other terms and conditions of the Agreement shall
remain in full force and effect according to the provisions thereof.
16.Notices.Written notices required under this Agreement and all other correspondence
between the Parties shall be directed to the following and shall be deemed received when
hand-delivered or three (3)days after being sent by certified mail,return receipt requested
or as may be updated in each Exhibit A-Work Order:
If to Fort Collins:Chad Crager,PIE
Fort Collins Connexion
222 Laporte Ave.
Fort Collins,CO 80521
ccrager a,fcgov.corn
970-212-2900
With copies to:Fort Collins City Attorney’s Office
300 Laporte Ave.
P0 Box 580
Fort Collins,CO 80521
If to Larimer County:Mark Pfaffinger,ClO
Larimer County,Information Technology
200 West Oak Street,Suite 4100
Fort Collins,CO 80521
pfaffiniat2Iko.larimer.co.us
970-498-5050
With copies to:Larimer County Attorney’s Office
Broadband Matters
P0 Box 1606
Fort Collins,CO 80521
970-498-7450
17.Amendment.Except as provided below,approval of amendments to this Agreement will
be managed according to the respective approval policies of each Party.The Parties
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EXHIBIT A TO RESOLUTION 2023-045
expressly agree to allow mutual administrative approval of amendments at any time upon
notice to the participating Parties listed and notice contacts in Section 16 above.
18.General Terms
a.Subject to Appropriation;No Multiple Year Obligation.It is understood and agreed
by the Parties that any obligation of Fort Collins or Larimer County hereunder,
whether direct or contingent,shall extend only to funds appropriated by the Parties’
respective governing bodies and encumbered for the purpose of this Agreement.The
Parties do not by this Agreement,irrevocably pledge present cash reserves for
payments in future fiscal years.Likewise,this Agreement shall not create a multiple-
fiscal year direct or indirect debt or financial obligation of either Fort Collins or
Larimer County.
b.Employee Status.All employees of each governmental entity who perform any
services in relation to this Agreement shall remain the employees solely of the
governmental entity employing them to perform such services and not of any other
party hereto.No Party shall obtain,by virtue of paying or being reimbursed for or
paying for costs under this Agreement,any direct control over the management,
scheduling or facilities of the other Party.
c.Governmental Immunity Act.No term or condition of this Agreement shall be
construed or interpreted as a waiver,by any Party,express or implied,of any of the
immunities,rights,benefits,protections,or other provisions of the Colorado
Governmental Immunity Act,C.R.S.§24-10-101 et seq.
d.Entire Agreement.This Agreement contains the entire agreement of the Parties
relating to the subject matter hereof and,except as provided herein,may not be
modified or amended except by written agreement of the Parties.
e.No Third-Party Beneficiary.The Parties understand and expressly agree that
enforcement of the terms and conditions of this Agreement,and all rights of action
relating to such enforcement,shall be strictly reserved to the Parties.Nothing
contained in this Agreement shall give or allow any such claim or right of action by
any third person.It is the express intention of the Parties that any person other than
the signatory hereto receiving benefits under this Agreement shall be deemed to be an
incidental beneficiary only.
f.Severability.In the event a court of competent jurisdiction holds any provision of this
Agreement invalid or unenforceable,such holding shall not invalidate or render
unenforceable any other provision of this Agreement.
g.Headings.Paragraph headings used in this Agreement are for convenience of
reference and shall in no way control or affect the meaning or interpretation of any
provision of this Agreement.
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EXHIBIT A TO RESOLUTION 2023-045
h.Governing Law and Venue.This Agreement shall be governed by the laws of the
State of Colorado,and venue shall be in the County of Larimer,State of Colorado.
i.Legal Constraints.The Parties recognize the legal constraints imposed upon them by
the constitutions,statutes,and regulations of the State of Colorado and of the United
States and imposed upon the Parties by their respective local laws,including,charters
and local codes.Subject to such constraints,the Parties intend to carry out the terms
and conditions of this Agreement.Notwithstanding any other provision in this
Agreement to the contrary,in no event shall either of the Parties exercise any power
or take any action which shall be prohibited by applicable law.
j.Counterparts.This Agreement may be executed in separate counterparts,and the
counterparts taken together shall constitute the whole of this Agreement.
k.Electronic Signature.This Agreement may be executed by electronic signature.
[Signatures appear on the following page]
Page 7 of 12
EXHIBIT A TO RESOLUTION 2023-045
IN WITNESS WHEREOF,the Parties have executed this Agreement as of the date first
above written.
CITY OF FORT COLLINS
Deputy County Attorney
AEFEST:
B:
City Clerk
ATTEST:
By:
County Clerk
By:
City Manager
APPROVED AS TO FORM:
By:
Assistant City Attorney
LARIMER COUNTY
By:
County Commissioner
APPROVED AS TO FORM:
By:
Page 8 of 12
EXHIBIT A TO RESOLUTION 2023-045
EXHIBIT A
Work Order #_0O1_-dated ,2023
to Intergovernmental Agreement
for Connexion Communication Services Provision in a Portion of Larimer County
A.Scope of Services.The scope of work related to the funded fiber optic network design
and installation includes management,network engineering design,material procurement
and construction of the fiber optic network.Portions of the fiber optic network covered
by this work order are further defined below.
The subject fiber optic network installations are anticipated to primarily serve residential
customers.
B.Funding by Larimer County.Larimer shall provide Connexion up to three million five
hundred eighty thousand dollars ($3,580,000)in Communication Service Funding
(“Larimer Funding”)for the Work described in Exhibit B hereto.Larimer shall give the
City notice to proceed and provide Connexion the Larimer Funding no later than 30 days
before Connexion engages in any portion of the Work.Upon receipt of the Larimer
Funding,Connexion shall undertake the Work in a timely manner.Eligible uses of
Larimer Funding include,but are not limited to,all costs related to reasonable and
necessary design,engineering,labor,licenses,outside plant and service drop installation,
permitting,materials,supplies,equipment,equipment rentals,reimbursables,federal,
state,and local income taxes,payroll,withholding and unemployment taxes,and other
costs necessary in the performance of the Work.Connexion shall not treat Larimer
Funding as revenue or profit for provision of Communications Service.In the event the
Work has not been initiated within one year (three-hundred and sixty-five days)of
Larimer providing the funding to Connexion,Larimer shall be permitted to require
Connexion to return the Larimer Funding along with any interest that has accrued in
connection with the funds,if the funds have been invested in an interest-bearing account.
C.Optional Revenue Sharing Between Parties.Provided that Connexion undertakes the
Work and provides Communications Service to any property in Larimer County with the
support of the Larimer Funding extended under this Work Order #001,Connexion will
share a portion of recurring customer service revenue with Larimer in recognition of the
Larimer Funding as follows:
1.25%Revenue Share.Beginning one year after Connexion initiates Communications
Service to any property as a result of the Larimer Funding and continuing until
Connexion has shared with Larimer a sum up to the total amount of the associated
Larimer Funding,on an annual basis Connexion will distribute 25°o of its Customer
Revenue to Larimer.“Customer Revenue”shall mean the revenue Connexion
receives from Communications Service subscribers for internet service packages,
served as a direct result of Work completed with the Larimer Funding administered
under this Work Order #001,as depicted in Exhibit B.“Customer Revenue”shall
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EXHIBIT A TO RESOLUTION 2023-045
not include any taxes,fees,or charges that Connexion must remit to any regulatory or
governmental body (including the City of Fort Collins)on the customer’s behalf or on
Connexion’s own behalf.
2.Customer Revenue Sharing Only Applies to Properties in Unincorporated
Larimer County.The City’s obligation to reimburse Larimer shall only apply to
Communications Service provided to properties in unincorporated Larimer County as
a direct result of and at the time of Larimer’s funding provided under this Work
Order.Furthermore,the City’s reimbursement obligation under this Agreement shall
in no way extend to revenues,facilities,goods or assets,that are andlor were funded
by bond proceeds garnered by the City of Fort Collins and are subject to any bond
covenant whatsoever (i.e.,any revenues or assets associated with property within Fort
Collins Light and Power’s electric service territory).
3.Larimer Responsible for Its Use of Funds.Larimer is responsible for compliance
with any laws,regulations or restrictions applicable to its use of funds to pay the City
for the Work under this Work Order or funds reimbursed to Larimer by the City.
Page 10 of 12
EXHIBIT A TO RESOLUTION 2023-045
Service Area Map and Work Definition.
Map of Service Area
Work Definition
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Page 11 of 12
EXHIBIT A TO RESOLUTION 2023-045
Exhibit B
Scope of Work
The scope of work related to this work order for fiber optic network design and installation
services includes management,network engineering design,material procurement and
construction of the fiber optic network.Each portion of the fiber optic network subject to Work
Order is further defined below.Design plans representing service areas are provided in Exhibit
A.
Imperial Estates Area I 3A
Installation of underground distribution conduit and fiber optic cable.Fiber optic service drop
installation for approximately 203 premises within the service area.Service drops include
installation of drop cable,splice enclosure,network interface device,wireless router and in-home
network devices for customers acquiring service within this area in connection with the
performance of the Work.
NW Harmony and Taft Hill Roads Area 13B
Installation of underground distribution conduit and fiber optic cable.Fiber optic service drop
installation for approximately 837 premises within the service area.Service drops include
installation of drop cable,splice enclosure,network interface device,wireless router and in-home
network devices for customers acquiring service within this area in connection with the
performance of the Work.
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