04/11/2011 Council Packet - Laserfiche WebLink

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29-E • • There are no established standards, policies or mechanisms for resolving network congestion problems that will ultimately arise. • The Final Agreement likely contains hidden costs associated with meeting the security, environmental and technical requirements for co- location sites (e.g., for possibly re- wiring co- location sites, adding necessary outlets, providing back -up power, improving heating and air conditioning systems, and re- configuring space to accommodate equipment). • The Final Agreement may also pose logistical, financial and legal issues for municipalities. For example, if the Zayo system is unavailable in a city hall at 3 a.m. on a Saturday morning, who is going provide Zayo with access and who is going to pay for any costs associated with such access? If the equipment in City Hall is used to serve commercial customers, will a municipality be liable to Zayo or the customers for damages, costs, etc. associated with any delay in providing access? • The "act of God" language in Section X the Final Agreement is extremely broad, and can be used to excuse most non - performance. • The limitations on liability enjoyed by Anoka County and Zayo under Section IX of the Final Agreement leave little recourse for municipalities to recover damages they may incur as a result of the County's and Zayo's acts and omissions. • Many important terms and concepts are not defined in the Final Agreement (e.g., demarcation point, excused outage, network availability, fiber optic network, etc.). This will inevitably lead to contract interpretation and enforcement issues down the road. The County has consistently suggested that terms in the connectivity service agreement should have their common technical meaning or the meaning ascribed to them in other agreements. However, those definitions and contracts are not incorporated into the Final Agreement, and would therefore have little or no force or utility in a dispute. Thus, despite our repeated attempts to educate and work with the County to improve the connectivity service agreement, the Final Agreement remains seriously flawed and poses a variety of risks to municipalities, as outlined above. These risks and flaws must be weighed against the potential benefits of entering into the Final Agreement. Such benefits may include: • Below- market rates for the services proposed (bearing in mind transmission speeds and quality of service are not guaranteed). • Transmission speeds that are significantly faster than those currently available and /or enjoyed (bearing in mind transmission speeds and quality of service are not guaranteed). 4 •