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HomeMy WebLinkAbout2019-073-06/04/2019-AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY AND THE TOWN OF ESTES P RESOLUTION 2019-073 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY AND THE TOWN OF ESTES PARK 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 Town of Estes Park("Estes Park")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, Estes Park, a Colorado home-rule municipality, has also undertaken the establishment and operation of a municipal broadband utility, and WHEREAS,the Estes Park Town Board directed the Estes Park 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 Estes Park, and WHEREAS,to provide reliable,competitive,and cost-effective broadband utility services, the City and Estes Park (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 Transport and Access Facilities attached hereto as Exhibit "A" (the "IGA") and incorporated by this reference, and -1- 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 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 between the City and Estes Park 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 Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 4th day of June, A D 2019 6l� Mayor Pro Tem ATTEST ,OQ PORT 00 ti 4 City C k " SEAL N lkw COCORPOO -2- 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 TOWN OF ESTES PARK, COLORADO a statutory municipality("Estes Park'), (collectively the"Cities') WHEREAS, prior to the date of this Agreement, voters of Fort Collins and Estes Park approved all legally required ballot measures at general elections, authorizing each municipality 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 Estes Park is a Colorado statutory municipality which has also undertaken the establishment and operation of a municipal broadband utility, and WHEREAS, as Colorado governmental entities, Fort Collins and Estes Park 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 municipality's broadband network and interstate and international telecommunications networks to meet each municipality'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 Page 1 of 7 1 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, until the Maximum Contract Amount (defined below) is expended or is extended as provided in a separate amendment to this Agreement, or until the Agreement is terminated, as set forth in Section 6 c (the "Term') 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, 6 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, Estes Park's financial liability under this Agreement shall only extend to the Transport and Access Costs as provided in Section 4 below Page 2 of 7 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 Estes Park 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 ii During the second twelve months,a pro rata amount based on the anticipated number of user accounts serviced by Estes Park'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 in The Cities will separately negotiate a cost sharing methodology, based on each city's actual Transport and Access use, for successive twelve month periods/years of this Agreement, if extended b Estes Park 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 The maximum contract amount Estes Park shall pay to Fort Collins over the Term of this Agreement shall in no event exceed the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000 00) ('Maximum Contract Amount )unless this Agreement is modified to increase said amount by a duly authorized and written agreement executed by the Cities in accordance with applicable legal requirements 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 in-kind relief from any third-party vendor delivering Transport and Access, Estes Park 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 Estes Park s access and use Estes Park 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 municipality with immediate geographical access to the Transport and Access,Fort Collins recognizes that Estes Park 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 Estes Park can reasonably access the Transport and Access Page 3 of 7 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, and Estes Park's payment of those costs will not be counted toward the Maximum Contract Amount c If the Cities do not enter into a separate written agreement regarding network equipment and associated service cost-sharing 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 Estes Park securing access to Platte River Power Authority long-haul fiber or other communication infrastructure physically connecting the Cities'respective networks 7 Sharing 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 to the discretion of Fort Collins' Broadband Executive Director and Estes Park'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 carving 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 furnish 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 Estes Park 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 to this Section 8 shall be deemed to delay or otherwise extend the scheduled expiration of the Term of the Agreement 9 Subject to Appropnation, No Multiple Year Obligation It is understood and agreed by the Cities that any obligation of Fort Collins or Estes Park hereunder, whether direct or contingent, shall extend only to funds appropriated by the Cities' respective city/town council/board and encumbered for the purpose of this Page 4 of 7 Agreement The Cities do not by this Agreement, irrevocably pledge present cash reserves for payments in future fiscal years Likewise, this Agreement is not intended to create a multiple-fiscal year direct or indirect debt or financial obligation of either Fort Collins or Estes Park 10 Employee Status All employees of each municipality who perform any services in relation to this Agreement shall remain the employees solely of the municipality which employed them to perform such services and not of the other municipality 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 Estes Park receiving benefits under this Agreement shall be deemed to be an incidental beneficiary only 14 Severabihty 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 corn Page 5 of 7 970-224-6001 With copies to Fort Collins City Attorney's Office 300 LaPorte Avenue PO Box 580 Fort Collins, CO 80521 970-221-6520 If to Estes Park Josh Cramer Municipal Fiber Manager ioshQr�,cranlerdev com Reuben Bergsten Utilities Director Town of Estes Park, Light and Power 615 Elm Road P O Box 1200 Estes Park, CO 80517 rbergsten@estes or¢ 970-577-3583 With copies to Estes Park Town Attorney Gregory A White Attorney At Law 1423 West 29th Street Loveland, CO 80538 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 Lanmer 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 cant' 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 etseq Page 6 of 7 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 TOWN OF ESTES PARK, COLORADO ATTEST By By Town Manager Town Clerk APPROVED AS TO FORM By Town Attorney Page 7 of 7