HomeMy WebLinkAbout2019-072-06/04/2019-AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY AND THE CITY OF LOVELAN RESOLUTION 2019-072
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL
AGREEMENT BETWEEN THE CITY AND THE CITY OF
LOVELAND FOR THE SHARED USE OF REGIONAL
BROADBAND TRANSPORT AND ACCESS SERVICES
WHEREAS, prior to the date of this Resolution, voters of the City of Fort Collins("City")
and the City of Loveland ("Loveland") approved all legally required ballot measures at general
elections, authorizing each city to acquire and operate independent municipal broadband utility
facilities and networks, and
WHEREAS, the City is a Colorado home-rule municipality which has undertaken the
establishment and operation of a municipal broadband utility, and
WHEREAS, in accordance with Loveland City Council resolution #R-107-2018,
Loveland,a Colorado home-rule municipality,has also undertaken the establishment and operation
of a municipal broadband utility, and
WHEREAS, Loveland City Council resolution #R-107-2018 directed the Loveland city
manager to establish a retail model broadband network with regional collaboration involving
regional partnerships with other governmental entities, broadband utility enterprises, and owners
of fiber optic cable in order to capitalize on the regional municipal broadband opportunities
available to the Loveland broadband enterprise, and
WHEREAS,to provide reliable competitive and cost-effective broadband utility services,
the City and Loveland (collectively, the "Cities") desire to collaborate with each other and
neighboring governments or broadband enterprises, to leverage resources and efficiencies,
including existing fiber optic connections between the Cities,for the benefit of each city's residents
and ratepayers, and
WHEREAS, the Cities need access to regional and national telecommunications data
facilities with sufficient capacities and speeds to transport data between each city's broadband
network and interstate and international telecommunications networks to meet each city's
commitments to its respective customers, and
WHEREAS, the City has negotiated the acquisition of access to such regional and national
telecommunications data facilities with third party vendors, and the Cities' respective staffs have
determined that the Cities will conserve resources by sharing bulk purchase and use of such access,
rather than each city independently purchasing such access, and
WHEREAS, in light of the current cost savings to the Cities and the potential for future
coordination and cost saving offered by this joint purchasing opportunity, the Cities desire to
coordinate efforts to obtain sufficient access to the telecommunications data facilities in
accordance with the terms of the Intergovernmental Agreement for Shared Access to Broadband
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Transport and Access Facilities attached hereto as Exhibit "A" (the "IGA") and incorporated by
this reference, and
WHEREAS,as Colorado governmental entities,the Cities are each authorized,pursuant to
C R S Section 29-1-203, to cooperate or contract with one another to acquire or provide any
government function, service, or facility lawfully authonzed 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 between the City and the City of Loveland
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 the City's behalf in substantially the form attached hereto
as Exhibit"A"
Section 3 That in addition, the City Manager is authorized, in consultation with the
City Attorney,to agree to amendments to the IGA as the City Manager determines to be reasonably
necessary and appropriate to protect the City's interests or to effectuate the purposes of this
Resolution, including amendment reducing Loveland's annual Financial Commitment down to an
amount of no less than $100,000 over the twenty-four month term of the IGA
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 4th
day of June, A D 2019
Mayor Pro Tern
ATTEST
ORTC
City Clot SEAL
OR
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EXHIBIT A
INTERGOVERNMENTAL AGREEMENT
FOR
SHARED ACCESS TO BROADBAND TRANSPORT AND ACCESS FACILITIES
THIS INTERGOVERNMENTAL AGREEMENT FOR SHARED ACCESS TO
BROADBAND TRANSPORT AND ACCESS FACILITIES ("Agreement") is made and entered
into this _ day of , 2019 by and between the CITY OF FORT COLLINS,
COLORADO, a home-rule municipality ('Fort Collins") and the CITY OF LOVELAND,
COLORADO a home-rule municipality("Loveland"), (collectively the"Cities")
WHEREAS, prior to the date of this Agreement, voters of Fort Collins and Loveland
approved all legally required ballot measures at general elections, authorizing each city to acquire
and operate independent municipal broadband utility facilities and networks, and
WHEREAS, Fort Collins is a Colorado home rule municipality which has undertaken the
establishment and operation of a municipal broadband utility, and
WHEREAS, Loveland is a Colorado home-rule municipality which has undertaken the
establishment and operation of a municipal broadband utility, and
WHEREAS, as Colorado governmental entities, Fort Collins and Loveland are
authorized, pursuant to 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, and
WHEREAS,to provide reliable, competitive, and cost-effective broadband utility services,
the Cities desire to collaborate with neighboring governments or broadband enterprises,to leverage
resources and efficiencies, including existing fiber optic connections between the Cities, for the
benefit of each city's residents and ratepayers, and
WHEREAS, the Cities both need access to regional and national telecommunications data
facilities, with sufficient capacities and speeds, to transport data between each city's broadband
network and interstate and international telecommunications networks to meet each city's
commitments to its respective customers, and
WHEREAS, Fort Collins has negotiated the acquisition of access to such regional and
national telecommunications data facilities with third party vendors,and the Cities'respective staffs
have determined that the Cities will conserve resources by sharing bulk purchase and use of such
access, rather than each city independently purchasing such access, and
WHEREAS, in light of the current cost savings to the Cities and the potential for future
coordination and cost saving offered by this joint purchasing opportunity, the Cities wish to
coordinate efforts to obtain sufficient access to the telecommunications data facilities in accordance
with the terms of this Agreement, and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Cities agree as follows
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I Definitions
As used in this Agreement the terms below shall have following meanings
Transport and Access Telecommunications facilities leased or otherwise acquired by Fort
Collins for the purpose of transporting data from the Cities', and any other local entity's,
broadband networks to interstate and international telecommunications networks
Transport and Access Costs All costs paid to one or more third-party vendors, including
but not limited to, one-time hook up costs, one-time servicing fees, capital costs, and
monthly bandwidth costs, for lease or other acquisition of Transport and Access
2 Term The term of the Agreement is from the date first written above until twenty four
months after Fort Collins executes one or more contract(s)for Transport and Access or until
the Agreement is terminated, as set forth in Section 6 c (the "Term") The Term of this
Agreement may be extended by up to three one-year periods at the discretion of Fort
Collins' Broadband Executive Director and Loveland's Municipal Fiber Manager by
written amendment of this Agreement Any such extension periods shall be included in the
'Term" as defined herein
3 Transport and Access Contracted for by Fort Collins Fort Collins shall negotiate and
contract for access to Transport and Access to be paid for by the Cities in accordance with
this Agreement The Transport and Access that Fort Collins shall lease or otherwise acquire
in furtherance of this Agreement shall meet the following minimum specifications
a Be of sufficient capacity and quality for both Cities to each provide a 10-gigabit (Gig)
per second service to their broadband customers for the Term,
b Connect the Cities broadband networks directly to data centers in Denver,
Colorado, Philadelphia, Pennsylvania, Sacramento, California, and any other data
centers agreed upon by the Cities
c Initial Transport and Access provided through Fort Collins shall include the following
connections/components
• 10 Gig to Sacramento(Data& • Burstable bandwidth in
Video) Sacramento
• 1 Gig Ethernet to Philadelphia • Dark Fiber to Denver
(Voice) • Cross Connects in Sacramento and
• 10 Gig dedicated in Denver Denver
In its sole discretion, Fort Collins may contract for additional Transport and Access
for its own use or the use of any other party with whom Fort Collins wishes to
collaborate However, Loveland's financial liability under this Agreement shall only
extend to the Transport and Access Costs as provided in Section 4 below
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4 Payment for Transport and Access Fort Collins shall directly pay any third-party
vendor for the Transport and Access Costs Thereafter, partial recovery of those costs by
Fort Collins shall be as set forth below
a Loveland shall be responsible for Transport and Access Costs in the following
amounts during the Term of this Agreement
i During the first twelve months, 33% of total Transport and Access Costs,
and
11 During the second twelve months,a pro rata amount based on the anticipated
number of user accounts serviced by Loveland's broadband network relative
to the total number of user accounts serviced by all entities using the
Transport and Access over the course of the second twelve months, and
ui The Cities will separately negotiate a cost sharing methodology, based on
each city's actual Transport and Access use, for successive twelve month
penods/years of this Agreement, if extended
b Loveland shall pay Fort Collins for Transport and Access Costs on a monthly
basis beginning the first full month following Fort Collins' execution of the first
contract for Transport and Access
5 Proportional Payment Obligations and Release To the extent Fort Collins withholds
payment, is released from payment obligations, or receives rebates, refunds
reimbursements or any financial or to-kind relief from any third-party vendor delivering
Transport and Access, Loveland shall be afforded proportionate relief in the same manner
as Fort Collins
6 Access to Transport and Access Fort Collins agrees to use good faith efforts to ensure
that its access to and use of the Transport and Access does not unreasonably interfere with
Loveland's access and use Loveland agrees to use good faith efforts to ensure that its access
to and use of the Transport and Access does not unreasonably interfere with Fort Collins'
access and use
a As the city with immediate geographical access to the Transport and Access, Fort
Collins recognizes that Loveland will access the Transport and Access within the
boundaries of Fort Collins and by use of facilities, such as routers, to be owned by
Fort Collins and shared by the Cities As such, Fort Collins agrees to acquire
equipment of appropriate size, make, or model to ensure Loveland can reasonably
access the Transport and Access
b The Cities will address cost-sharing for the purchase of such network equipment and
associated license or other costs, technical and support services in a separate
agreement
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c If the Cities do not enter into a separate written agreement regarding network
equipment and associated service cost-shanng within one hundred and eighty(180)
days of signing this Agreement, Fort Collins may terminate this Agreement with no
further liability as to delivering Transport and Access
d Fort Collins' obligations under this Agreement shall further be contingent on
Loveland securing access to Platte River Power Authority long-haul fiber or other
communication infrastructure physically connecting the Cities'respective networks
7 Shanng Information Regarding.Transport and Access In order to ensure consistent and
effective operation of each city's broadband network, the Cities agree to share with each
other all useful information regarding the Transport and Access, as necessary and
permissible in the discretion of Fort Collins' Broadband Executive Director and
Loveland's Municipal Fiber Manager
Notwithstanding the above, the Cities agree to otherwise treat as confidential (a) all
information owned by the other party, or that relates to the business of the other party, or
that is used by the other party in carrying on business, and (b) all information that is
proprietary to a third party(including the other city's customers and suppliers) The Cities
shall not disclose such information to any person not having a legitimate need-to-know and
approved by the other city, nor use such information in any form to obtain an economic or
other benefit for itself, or any third party If such information is required by law,regulation
or court order to be disclosed, the subject city's disclosure shall not be greater than that
which is required, and in the event of such disclosure, the disclosing city shall fumish a
copy of this Agreement to anyone requiring such disclosure and promptly advise the other
city in writing of each required disclosure
8 Notice Prior to Expiration of Term At least one hundred and eighty (180) days prior to
the expiration of this Agreement, Fort Collins' Broadband Executive Director and
Loveland's Municipal Fiber Manager, or their designees, shall meet to discuss
potential extension and/or amendment of this Agreement, and/or integration of the
separate agreement for network equipment and associated service cost-sharing into this
Agreement Nothing set forth in this Section 8 shall be deemed to delay or otherwise
extend the scheduled expiration of the Term of the Agreement
9 Subject to Appropriation, No Multiple Year Obligation It is understood and
agreed by the Cities that any obligation of Fort Collins or Loveland hereunder,
whether direct or contingent, shall extend only to funds appropriated by the Cities'
respective city councils and encumbered for the purpose of this Agreement The
Cities 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
Loveland
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10 Employee Status All employees of each city who perform any services in relation to this
Agreement shall remain the employees solely of the city which employed them to perform
such services and not of the other city
11 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
12 Entire Agreement This Agreement contains the entire agreement of the Cities relating
to the subject matter hereof and, except as provided herein, may not be modified or
amended except by written agreement of the Cities
13 No Third Party_Beneficiary The Cities 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 Cities 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 Cities that any person other than Fort Collins
or Loveland receiving benefits under this Agreement shall be deemed to be an
incidental beneficiary only
14 Severabdity 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
15 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
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
If to Fort Collins Colman Keane, Broadband Executive Director
Fort Collins Connexion
215 N Mason Street
PO Box 580
Fort Collins, CO 80521
ckeane@fcgov com
970-224-6001
With copies to Fort Collins City Attorney's Office
300 LaPorte Avenue
PO Box 580
Fort Collins, CO 80521
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970-221-6520
If to Loveland Brieana Reed-Harmel, Municipal Fiber Manager
City of Loveland, Water and Power
200 Wilson Avenue
Loveland, CO 80537
Bneana Reed-Harmel@cityofloveland org
970-962-3592
With copies to Loveland City Attorney's Office
Broadband Matters
500 East 3rd Street, Suite 330
Loveland, CO 80537
17 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 Latimer, State of Colorado
18 Legal Constraints The Cities 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 Fort Collins by its Charter and Municipal Code, and, subject to such
constraints, the Cities 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 hereto exercise any power or take any action which shall be
prohibited by applicable law
19 Counterparts This Agreement may be executed in separate counterparts, and the
counterparts taken together shall constitute the whole of this Agreement
20 Electronic Signature This Agreement may be executed by electronic signature in
accordance with C R S § 24-71 3-101 et seg
[Signature appear on the following page]
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IN WITNESS WHEREOF, the Cities have executed this Agreement as of the date
first above written
CITY OF FORT COLLINS, COLORADO ATTEST
By By -
City Manager City Clerk
APPROVED AS TO FORM
By
Assistant City Attorney
CITY OF LOVELAND, COLORADO ATTEST
By By
City Manager City Clerk
APPROVED AS TO FORM
By
Assistant
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