04/11/2011 Council Packet - Laserfiche WebLink

Home Search

damage to third party equipment at co- location sites caused by Zayo, and improved definitions of important contract terms. With the foregoing caveats and limitations in mind, the parties were able to reach agreement on certain identified areas of concern, as reflected in the April 4, 2011, "final" connectivity service agreement prepared by the County (the "Final Agreement ") and as summarized below: • The reference to "rights -of -way agreements" in the definition of "underlying rights" was eliminated, which helps clarify that the connectivity service agreement in and of itself is not intended to grant Anoka County or Zayo access to public rights -of -way (i.e., local permitting requirements and right -of -way management ordinances must be followed). The definition of underlying rights was also modified to reflect that only the right to access co- location sites is being conferred and that the specific nature of that right (including any applicable limits and conditions) will be described in a new Attachment I to the connectivity service agreement. These changes narrow the scope of the connectivity service agreement and, in conjunction with other provisions, significantly mitigate the risk that the agreement could be construed to authorize Zayo to operate a cable system and provide cable service without a franchise. • The definition of "permitted use" was amended to make clear that municipalities can use the Zayo system for any quasi - governmental, governmental, educational or public safety purpose, as long a specific use does not compete with Zayo in commercial markets. This particular change is important because it clarifies that local governments can provide services to themselves over the Zayo network for permitted purposes, even if Zayo also offers those same services (e.g., VoIP telephony). As currently written, the concept of permitted uses only proscribes municipalities from using connectivity services on the Zayo system to offer video, voice or data services to the commercial marketplace in competition with Zayo. • Section II.B connectivity service agreement now specifies that "underlying rights" are only being granted for the provision of telecommunications services under Chapter 237 of Minnesota Statutes (as opposed to cable service under Chapter 238 of Minnesota Statutes) and that Zayo must follow local ordinances in exercising the "underlying rights" (e.g., by obtaining necessary easements, permits, etc.). This revised language, in conjunction with other language in the Final Agreement, affirms, preserves and protects local governments' right -of -way management and cable television franchising authority. • Language was added to Section VI of the connectivity service agreement which states that Zayo must remove its equipment from co- location sites at a municipality's request upon termination or expiration of the agreement within a mutually agreed upon timeframe not to exceed 180 days. Previously, Section VI was drafted in such a way that Zayo could decide to leave its equipment in co- location sites after the connectivity service agreement is terminated or expires, which would arguably obligate a municipality to continue providing access and security (and possibly expose the municipality to ongoing costs and potential liability for damage to equipment, service outages, etc.). 2