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
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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
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Mayor Pro Tem
ATTEST
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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 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
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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
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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 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
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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
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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
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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
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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
TOWN OF ESTES PARK, COLORADO ATTEST
By By
Town Manager Town Clerk
APPROVED AS TO FORM
By
Town Attorney
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