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HomeMy WebLinkAboutRES 21-037 APPROVING THE MUNICIPAL FIBER OWNERSHIP, USE, AND ACCESS AGREEMENT WITH ARVIG ENTERPRISES, INC.CITY OF SAINT ANTHONY VILLAGE STATE OF MINNESOTA RESOLUTION 21-037 A RESOLUTION APPROVING THE MUNICIPAL FIBER OWNERSHIP, USE, AND ACCESS AGREEMENT WITH ARVIG ENTERPRISES, INC. WHEREAS, in 2015, the City constructed a Fiber Transport Facility connecting multiple City owned facilities; and WHEREAS, the City has additional capacity within the Fiber Optic Cables; and WHEREAS, Arvig has expressed an interest in utilizing the fiber optic capacity within the City's Fiber Transport Facility for its own communication needs; and WHEREAS, in 2018, Arvig constructed a Fiber Transport Facility within the City and adjoining Communities; and WHEREAS, the City has expressed an interest in utilizing the fiber optic capacity within Arvig's Fiber Transport Facility for its own communication needs; and WHEREAS, the Parties have contemplated an exchange of their respective fiber optic capacities to advance the individual communication needs of each Party. NOW THEREFORE BE IT RESOLVED, by the City Council of the City of Saint Anthony Village hereby approves the municipal fiber ownership, use, and access agreement with Arvig Enterprises, Inc. Adopted this 13th day of April, 2021. ATTEST: 46 Nicole Miller, City Clerk Review for Administration: Charlie Yunker, City Manager City of St. Anthony Municipal Fiber Ownership, Use, and Access Agreement This Agreement ("Agreement") is made by and between the City of St. Anthony, a municipal corporation (hereinafter "City"), 3301 Silver Lake Road NE, St. Anthony, Minnesota, and Arvig Enterprises, Inc. ("Arvig"), a Minnesota corporation, 150 Second Avenue Southwest, Perham, Minnesota, collectively referred to as the "Parties", as of the effective date set forth below. Recitals WHEREAS, in 2015, the City constructed a Fiber Transport Facility connecting multiple City - owned facilities, WHEREAS, the City has additional capacity within the Fiber Optic Cables, WHEREAS, Arvig has expressed an interest in utilizing the fiber optic capacity within the City's Fiber Transport Facility for its own communication needs, WHEREAS, in 2018, Arvig constructed a Fiber Transport Facility within the City and adjoining communities, WHEREAS, the City has expressed an interest in utilizing the fiber optic capacity within Arvig's Fiber Transport Facility for its own communication needs, WHEREAS, the Parties have contemplated an exchange of their respective fiber optic capacities to advance the individual communication needs of each Parry. WHEREAS, the Parties now desire to memorialize the terms and conditions of their respective ownership, use, and access regarding said fiber optic cable. NOW, THEREFORE, intending to be mutually bound to the promises and covenants below, the consideration of which is deemed sufficient, the City and Arvig agree as follows: 1. Effective Date; Termination. This Agreement shall be effective as of the last date of signature of the Parties below and shall continue in full force and effect until terminated by one or both of the Parties as follows: a. This Agreement may be terminated by either Party, for any reason, at any time not less than ten (10) years after the effective date. Such termination shall be preceded by not less than 12 months written notice of intent to terminate delivered to the non - terminating Party. The Parties may immediately terminate this Agreement at any time by mutual written agreement. b. In the event of default by one party, the non -defaulting party shall provide written notice and description of the default to the defaulting party. If the defaulting party fails to fully cure the described default within 30 days of receipt of such notice, the non - defaulting party may terminate this Agreement immediately. c. In any event of termination, all incurred expenses and costs owed by one party to the other under this Agreement shall become immediate due and payable no later than 30 days after the date of termination. 2. Definitions. As used in this Agreement, the following terms shall be defined as follows: Optical Fiber ("Fiber"): A glass or plastic fiber that has the ability to guide light along its axis. The three parts of an optical fiber are the core, the cladding, and the coating or buffer. Fiber Optic Cable ("Cable"): means a collection of Optical Fibers contained in color -coded buffer tubes with a protective outer covering (sheath), which covering includes stiffening rods and filler. Dark Fiber: Optical fiber installed without transmitter and receiver, usually to provide expansion capacity. Fiber Transport Facility: The conduit, cable vaults, pull boxes, and splice vaults housing the Fiber Optic Cable that collectively constitute a fiber optic pathway between a demarcation point in a switching facility and a demarcation point in another switching facility or customer premises. Access Point: is the physical location(s) at which the Parties may, subject to required permits and Rights, connect its telecommunications system with the Allocated Fibers. Access Points may be a point of presence, regenerator site, or optical amplifier with each Access Point specifically set forth on Exhibit A attached hereto and incorporated by reference herein. Optical Splice Point ("Splice Point"): means the point where the IRU Grantee's Cable connects to the IRU Fibers. Slack Loon: Coils of extra fiber optic cable stored at cable vault, pull box, or splice point. These coils are used for repairing a cable when it has been damaged or for connecting new fiber optic cables to the network. Splicing_ The act of joining two optical fibers end-to-end using heat. Road Relocating Costs: Costs associated with the relocation of the Fiber Transport Facilities as required by any Governmental Authority under the power of eminent domain or otherwise. 2 Operating and Maintenance Expenses: Guard and Protect (staff on site to manage the cable while other utility work is performed in the area), cable repairs due to adjacent utility work or animal damage, broken strand or attenuation repairs, splice case maintenance. Emergency plidM Any unplanned maintenance or repair of the fiber optic facilities caused by an unanticipated network outage. Indefeasible Right of Use ("IRU"): is an exclusive and irrevocable right to use certain Dark Fibers in the Fiber Optic Cable ("Capacity"), subject to the terms and conditions of this Agreement. Gopher State One Call ("GSOC") Expenses: Utility operator registration fees required as part of the Excavation Notice System, pursuant to Minnesota Statutes Chapter 216D, commonly referred to as the "Call 811 Before You Dig" program, that requires all excavators to submit requests for utility locates prior to any excavation/digging project. 3. Fiber Optic Cable Ownership and Use. Per this Agreement; A. Arvig will provide to the City, fiber strands 1-24 (24 strands total) within the Arvig fiber optic cable as shown in Exhibit Al — "Arvig County Road C2/Twin Lakes Fiber Optic Network". B. The City will provide to Arvig, fiber strands 133-144 (12 strands total) within the City fiber optic cable "SA -BB -NORTH -144"; fiber strands 133-144 (12 strands total) within the City fiber optic cable "SA -BB -SOUTH -144"; and fiber strands 1-6 (6 strands total) within the City fiber optic cable connecting "Wilshire Park School" as shown in Exhibit A2 — "St. Anthony Municipal Fiber Optic Network" Each Parry is granted an exclusive, indefeasible right to use the Capacity granted under this Agreement, all upon the terms and conditions set forth below. 4. Fiber Optic Cable Access. This Agreement includes a non-exclusive right for the Parties to access the Fiber Transport Facilities necessary for the operation and use of the Fibers as contemplated herein. 5. Financial Obligations. The Parties agree that the following financial obligations shall apply for the term of this Agreement, subject to mutually agreeable amendment under Paragraph 15 of this Agreement: a. Arvig shall be financially responsible for all Gopher State One Call expenses of any kind, nature, and amount. The City shall be financially responsible for no such expenses. b. Arvig shall be financially responsible for 100% of road relocating costs, operating expenses and maintenance expenses associated with Arvig's Fiber Optic Transport Facilities. c. The City shall be financially responsible for 100% of road relocating costs, operating expenses and maintenance expenses associated with the City Fiber Optic Transport Facilities. 3 d. Arvig shall perform all splicing activities on the transport facility and shall be reimbursed by the City for such performance at a regular rate of $100.00 per hour. In the event of Emergency Splicing or any splicing activity outside of regular working hours of Monday through Friday, 8:00 a.m. to 5:00 p.m., Arvig shall be reimbursed by the City at a premium rate of $150.00 per hour. Such regular and premium rates shall be subject to mutual amendment by the Parties only at five (5) year intervals beginning at the Effective Date of this Agreement. In no event shall such regular and premium rates be subject to unilateral change by either party. 6. Audit Disclosure. Any reports, information, data and other written documents given to, or prepared or assembled by the Consultant under this Agreement which the City requests to be kept confidential shall not be made available by the Consultant to any individual or organization without the City's prior written approval. Pursuant to Minnesota Statutes section 16C.05, the books, records, documents and accounting procedures and practices of Arvig or other parties relevant to this Agreement are subject to examination by the City and either the Legislative Auditor or the State Auditor for a period of six (6) years after the effective date of this Agreement. Arvig shall at all times abide by Minn. Stat. § 13.01 et seq. and the Minnesota Government Data Practices Act, to the extent the Act is applicable to data, documents, and other information in the possession of Arvig. Independent Contractor. At all times and for all purposes herein, Arvig and its employees, agents, and other persons acting on its behalf or its direction are independent contractors and not an employee of the City. No statement herein shall be construed so as to find Arvig and such persons to be employees of the City. 8. Assignment. Assignment. No party may assign or transfer any rights or obligations under this Agreement without the prior consent, not unreasonably withheld or delayed by the other Party and a fully executed Assignment Agreement, executed and approved by the same parties who executed and approved this Agreement, or their successors in office. 9. No Partnership or Joint Venture. The Parties expressly understand and affirm that this Agreement shall not constitute a partnership between or joint venture by the Parties or constitute any parry the agent of the other. No party shall hold itself out contrary to the terms of this provision and no party shall become liable by any representation, act or omission of the other contrary to the provisions hereof. This Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any such party whether referred to herein or not. 10. Compliance with Laws and Regulations. All Parties shall abide with all federal, state and local laws, statutes, ordinances, rules and regulations in the performance of any activities arising from this Agreement. The Parties, together with their respective agents and employees, agree to abide by the provisions of the Minnesota Data Practices Act, Minnesota Statutes Section 13, as amended, and Minnesota Rules promulgated pursuant to Chapter 13, as applicable. 13 11. Waiver. Any waiver by either party of a breach of any provisions of this Agreement shall not affect, in any respect, the validity of the remainder of this Agreement or either party's ability to enforce a subsequent breach. 12. Indemnification. To the fullest extent permitted by law, Arvig agrees to defend, indemnify and hold the City, and its mayor, council members, officers, agents, employees and representatives harmless from and against all liability, claims, damages, costs, judgments, losses and expenses, including but not limited to reasonable attorney's fees, arising out of or resulting from any negligent or wrongful act or omission of Arvig, its officers, agents, employees, contractors and/or subcontractors, pertaining to the performance or failure to perform its obligations under this Agreement and against all losses resulting from the failure of Arvig to fully perform all of its obligations under this Agreement. 13. Liability Limitations. Nothing in this Agreements intends to, or shall be construed so as to, waive any liability limitations in favor of the City pursuant to Minnesota Statutes Chapter 466 or other applicable law. 14. Ownership of Documents. All plans, diagrams, analysis, reports and information generated in connection with the performance of this Agreement ("Information") shall become the property of the City, but Arvig may retain copies of such documents as records of the services provided. The City may use the Information for any reasons it deems appropriate without being liable to Arvig for such use. Arvig shall not use or disclose the Information for purposes other than performing its obligations contemplated by this Agreement without the prior consent of the City. 15. Amendment. This Agreement shall not be altered, changed, or amended in any form without the express written consent of both Parties. 16. Conflicts. No salaried officer or employee of the City and no member of the City Council of the City shall have a financial interest, direct or indirect, in this Agreement. The violation of this provision shall render this Agreement void. 17. Governing Law. This Agreement shall be controlled by the laws of the State of Minnesota. 18. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original. 19. Severability. The provisions of this Agreement are severable. If any portion hereof is, for any reason, held by a court of competent jurisdiction to be contrary to law, such decision shall not affect the remaining provisions of this Agreement. 20. Notices. Any notice to be given by either parry upon the other under this Agreement shall be properly given: a) if delivered personally to the City Manager if such notice is to be given to the City, or if delivered personally to an officer of Arvig if such notice is to be given to Arvig, b) if mailed to the other party by United States registered or certified mail, return receipt requested, postage prepaid, addressed in the manner set forth below, or c) if given to a nationally, recognized, reputable overnight courier for overnight delivery to the other party addressed as follows: If to City: City of St. Anthony 3301 Silver Lake Road NE St. Anthony, MN 55418 Attn: City Manager If to Arvig: Arvig Enterprises, Inc. 150 2nd Avenue Southwest Perham, Minnesota 56573 Attn: Director of Network Operations Notices shall be deemed effective on the date of receipt if given personally, on the date of deposit in the U.S. mails if mailed, or on the date of delivery to an overnight courier if so delivered; provided, however, if notice is given by deposit in the U.S. mails or delivery to an overnight courier, the time for response to any notice by the other party shall commence to run one business day after the date of mailing or delivery to the courier. Any party may change its address for the service of notice by giving written notice of such change to the other party, in any manner above specified, 10 days prior to the effective date of such change. 21. Successors and Assigns. This Agreement is binding upon, and shall inure to the benefit of, the Parties and their respective successors and assigns. 22. Recitals. All recitals set forth above are hereby incorporated in and made of this Agreement by reference. 23. Entire Agreement. Unless stated otherwise in this Provision 23, the entire agreement of the Parties is contained in this Agreement. This Agreement supersedes all prior oral agreements and negotiations between the parties relating to the subject matter hereof as well as any previous agreements presently in effect between the parties relating to the subject matter hereof. Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties, unless otherwise provided herein. IN WITNESS WHEREOF, the undersigned parties have entered into this Agreement as of the last date of signature below. ARVIG Dated: Z///3 1,9e2-, CITY OF SAINT By: _ Signature Its:_ Title Arvig Enterprises, Inc. 04/06/2021/L-1 ` "4"``"'F By: Signature Its: Title Director of Net Operations s lee- 000 .. • • • ' - - ir ' Ll � IT, ,�`�- _ N� 'IRF.e'T�ri�.��--r-i-r '� T n, it IT.- — l z --351RAre-14E - (--�--• c "e�sF I IN" R "Idale-A.--Ne---4 u 5 -I m z � isl Ar hlony 1 rltlf 3Y ASE-_ I �� f - Z � ® �pa�eaa�bs Om9oral Tra,l