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Home My WebLink AboutWK - March 29, 2011 1685 CROSSTOWN BOULEVARD N,W. . ANDOVER, MINNESOTA 55304. (763) 755-5100 FAX (763) 755-8923 . WWW,CI.ANDOVER.MN,US City Council Workshop Tuesday, March 29,2011 Conference Rooms A & B 1. Call to Order - 6:00 p,m, 2, Award Bid/11-14/T ower # 1 !Painting & Rehabilitation - Engineering/Administration 3. 2010 Pre-Audit Year End Update -Administration 4. 2011 Budget Implementation Progress & Investment Maturities Report - Administration 5. 2012 Budget Development Strategies Discussion - Administration 6. 2011-2012 Council Goal Discussion - Administration 7, Single Family Residential Market Value Preservation Program Update - Administration 8. Anoka County Broadband Project Update - Administration 9. Discuss Emerald Ash Bore Draft Management Plan - Engineering 10. Fence Permitting Discussion - Engineering 11. Update/l0-27/Bunker Lake Boulevard NW ReconstructionlCSAH 7 to 38th Avenue- Engineering 12. Bunker Lake Boulevard NW Funding ApplicationlHanson Boulevard NW to Jefferson Street - Engineering 13. Other Topics 14. Adjournment f @ CITY OF NDOVE 1685 CROSSTOWN BOULEVARD N,W. . ANDOVER, MINNESOTA 55304. (763) 755-5100 FAX (763) 755-8923 . WWW.CI.ANDOVER.MN,US TO: Mayor and Council Members CC: Jim Dickinson, City Administrator FROM: David D. Berkowitz, Director of Public Works/City Engineer SUBJECT: Award Bid/1l-14/Tower #l/Painting & Rehabilitation - Engineering DATE: March 29,2011 INTRODUCTION The City Council is requested to receive bids and award the contract (Total Base) for painting and rehabilitation for Tower #1, Project 11-14. DISCUSSION The bid opening was held Thursday, March 17th. The [mal bid results are listed below, LC United Painting was a non-conforming bid because they failed to provide the 10% bid bond that was a required with the bid as identified in the specifications, Total Base bid was for construction this spring and the Total Alternate 1 bid was an add or deduct for construction the spring of2012, Contractor Total Base Total Alternate 1 LC United Painting $364,000.00 $0.00 Non-Conforming Bid M. K. Painting Ine, $384,000.00 $10,000,00 Classic Protective Coatings Inc. $431,850.00 $0.00 PCI Roads, LLC $435,100.00 $0.00 TMI Coatings Ine, $461,500.000 $9,000.00 Champion Coatings $494,250.00 - $40,000.00 Odland Protective Coating Inc. $597,500,00 $100,000.00 Engineer's Estimate $461,800,00 $ Bids received were favorable, Staff along with SEH, recommend awarding the bid to M.K. Paintings Inc, for construction this spring, The project will begin in late April with a completion date oflate June. Other improvements for this project that have been budgeted for but were not included in the bid are replacement of the garage door and the installation of a rod iron fence to protect for on-going vandalism to the tower. Staff will receive quotes from separate contractors for this work. Mayor and Council Members March 29, 2011 Page 2 of2 BUDGET IMPACT The project costs (design, construction administration and construction) will be funded by the Water Trunk Fund, ACTION REQUIRED The City Council is requested to approve the resolution accepting bids and awarding the contract to M, K. Painting Inc, in the amount of $384,000 (Total Base) for painting and rehabilitation for Tower #1, Project 11-14. Respectfully submitted, ~Q. 13::t David D. Berkowitz Attachments: Resolutiort'& SEH letter w./Bid Tabv cc: Dan Zienty, SEH ------ CITY OF ANDOVER COUNTY OF ANOKA STATE OF MINNESOTA RES. NO. MOTION by Council member to adopt the following: A RESOLUTION ACCEPTING THE AL TERNA TE A PRICE AND AWARDING CONTRACT FOR THE IMPROVEMENT OF PROJECT NO. 11-14 FOR TOWER #1, WHEREAS, pursuant to advertisement for bids as set out in Council Resolution No, 010-08 ,dated February 6, 2008, bids were received, opened and tabulated according to law with results as follows: Contractor Total Base Total Alternate 1 M, K, Painting Ine, $384,000,00 $10,000,00 Classic Protective Coatings Inc. $431,850.00 $0.00 PCI Roads, LLC $435,100.00 $0.00 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Andover to hereby accept the bids as shown to indicate M.K. PaintinQ Inc. as being the apparent low bidder. BE IT FURTHER RESOLVED TO HEREBY direct the Mayor and City Clerk to enter into a contract with M.K. PaintinQ Inc. in the amount of $384.000,00 (Total Base) for construction of the improvements; and direct the City Clerk to return to all bidders the deposits made with their bids, except that the deposit of the successful bidder and the next lowest bidder shall be retained until the contract has been executed and bond requirements met. MOTION seconded by Council member and adopted by the City Council at a reQular meeting this 29th day of March ,2011 ,with Council members voting in favor of the resolution, and Council members voting against, whereupon said resolution was declared passed. CITY OF ANDOVER ATTEST: Michael R. Gamache - Mayor Michelle Hartner - Deputy City Clerk Sincerely, ~b , : Daniel J, Zienty, NACE Proj ect Manager amc Attachments c: Chad Setterholm, PE - SEH s:\ae\a\andov\l I S129\bidding dox\award ree letter 3181l.docx Short Elliott Hendrickson Inc. 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WWW.CI.ANDOVER.MN,US TO: Mayor and Councilmembers FROM: Jim Dickinson, City Administrator SUBJECT: 2010 Budget Pre-Audit Year-end Update DATE: March 29,2011 INTRODUCTION The 2010 Budget and Levy were adopted on December 15, 2009. The 2010 Budget included a total property tax levy of $10,856,299: $7,631,494 (70.3%) operational levy, $1,900,566 (17.5%) debt service levy, and $1,324,239 (12.2%) capital levy. Administration will Drovide an uDdate to the Council on how the 2010 General Fund budl!et Drol!ressed. The numbers Drovided are unaudited. but deemed reliable. DISCUSSION Throughout 2010, in preparation of the 2011 Operating Budget, the City committed to maintaining the 2011 budget development guideline that worked toward establishing the General Fund balance for working capital at no less than 35% of planned 2011 General Fund expenditures, preserve the emergency fund balances, and prepare for elimination of Market Value Homestead Credit funding through targeting revenue enhancements and expenditure limitation in the 2010 adopted General Fund budget. The eXDenditure limitation Dolicv was for all deDartments to tarl!et 97% of eXDenditures. the 2010 Pre-Audit Year-end numbers looks to be endinl! around 95% of eXDenditure. The attached "Summary Trial Balance - General Fund - December 31, 2010" is provided to assist discussion; the attached General Fund 2010 Fund Balance Analysis spreadsheets will also be reviewed at the meeting. ACTION REQUESTED The Council is requested to receive a presentation and provide direction to staff. Attachments ~" CITY OF ANDOVER SummaI}' Trial Balance - General Fund December 31, 2010 Variance with Final Budget - Budgeted Amounts Actual Positive Original Final Amounts (Negative) 2009 Assets Cash and investments 4,391,569.53 3,586,725.04 Accrued interest 13,225.00 10,155.29 Due from other governmental units 23,969.36 33,370.79 Accounts receivable - net 73,133.34 74,449,04 Due from other funds 629,000,00 670,000,00 Prepaid items 92,750,00 103,804.00 Property taxes receivable: Unremitted 63,276.81 68,274.90 Delinquent 242,461.24 183,241.65 Special assessments receivable: Unremitted 417.92 445.90 Delinquent 14,529.39 17,012,65 Deferred Inventory 113,916,09 103,711.11 Total assets 5,658,248,68 4.851,190.37 Liabilities and Fund Balances Liabilities: Due to other funds Accounts payable 126.825.43 84,173.58 Contracts payable 19,546.42 20,164.53 Due to other governmental units 6,494.48 86,360.49 Salaries payable 124,651.60 119,933,52 Deposits payable 12,835.09 11,892.34 Deferred revenue 256,990.63 200,254.30 Total liabilities 547,343.65 522,778,76 Fund balances: Reserved for: Prepaid items Inventory Unreserved reported in: Designated for working capital LY 4,328,411.61 4,175,034.70 Designated for working capital Designated for working capital from below 782,493.42 153,376,91 Total fund balances 5,110,905.03 4,328,411.61 Total liabilities and fund balances 5,658,248.68 4,851,190.37 Revenues: General property taxes 7,308,495,00 7,308,495.00 7,191,602,56 (116,892.44) 6,588,601.27 Licenses and permits 237,055,00 237,055,00 329,901.20 92,846,20 291,903.41 Intergovernmental 567,498.00 567,498.00 570,096,82 2,598,82 595,001.60 Charges for services 543,500.00 543,500,00 755,184.23 211,684.23 701,289.07 Fines 100,750.00 100,750,00 104,780,17 4,030,17 110,779.20 Investment income 65,000,00 65,000.00 70,368,10 5,368.10 76,772.21 Miscellaneous 83,400,00 83,400,00 136,684,09 53,284.09 130,523.44 Total revenues 8,905,698,00 8,905,698,00 9,158,617,17 252,919,17 8,494,870.20 Expenditures: Current: General government: Mayor and City council 104,251.00 104,251.00 100,710,34 3,540.66 105,318,86 Administration 130,997.00 132,967,00 131,218,21 1,748,79 128.532,38 Newsletter 23,000,00 23,000,00 17,093,75 5,906.25 22,405,25 Human resources 60,691.00 60,744,00 54,968.30 5,775,70 54.625,18 Legal 178,500,00 178,500,00 172,774.50 5,725.50 172,900.45 City clerk 95,824,00 96,828,00 95,166,16 1,661.84 96.620.90 Elections 49,006.00 49,126,00 37,926,89 11,199,11 6,139,01 -'J- - . . . ,Ao., CITY OF ANDOVER Summary Trial Balance - General Fund December 31, 2010 Variance with Final Budget - Budgeted Amounts Actual Positive Original Final Amounts (Negative) 2009 Financial administration 198,836,00 202,011.00 194,864,78 7,146.22 210,204.46 Assessing 152,500,00 152,500.00 144,760.24 7,739,76 120.113.39 Information services 144,106,00 150,812,00 136,931.29 13,880,71 122,614.46 Planning and zoning 319,556,00 328,449,00 327,566.14 882,86 323,680,69 Engineering 383,083,00 390,087.00 389,037,36 1,049,64 388.284.54 G2 F~cility management 556..:15lQO 521,716.00 ... 421,850.49 149,89.5.51..__ 409,928,61 Total general government 2,396,807,00 2,440,991.00 2,224,868.45 216,122.55 2,161,368,18 Public safety: Police 2,599,246.00 2,599,246.00 2,599,246,00 - 2,545,642,00 ~ Fire protection -----1ili.3~~2.Q.L__..__LQZQ~iQQ________Yj],l1646 _._,___.._._~QM;_~~1j.._,____~~.J?.9.&~_,.._ __ Protective inspection 339,931.00 346,282,00 330,708,56 15,573,44 435,102.10 Civil defense 15,794,00 15,909,00 15,450.25 458,75 14,934,72 Animal control 9,970.00 9,970,00 6,952.06 3,017,94 11,375,91 Total public safety 4.028,900.00 4,041,792,00 3,920,073.33 121,718,67 4,005,405.35 Public works: ~~~:tsa::~_____;~:~~~________;~:~~l~_~_____._~~i~:~~~__.__.____~;~;~~~L"....._._~~;:~~;;.~.~.. (3) Street signs 177,458.00 195,562.00 166,243,75 29,318.25 159,212.50 Traffic signals 36,000.00 36,000.00 25,829.65 10,170,35 26,090,15 Street lighting 236,400.00 236,400,00 217,205.26 19,194,74 213,306,74 Total public works 1,469,163.00 1,513,795,00 1,466.215.03 47,579,97 1,428,549.25 Parks and recreation 860,460.00 872,633.00 826,694.21 45,938,79 835,635,85 Recycling 117,298.00 118,838.00 109,034,02 9,803.98 85,527,11 l.!nallol;ate.L_______.__._. _ _ :UO,QOD.OO 170,079,00 24,953.15 145,125,85 19,540,00 ...._. .(3) Total current 9,102,628.00 9,158,128,00 8,571,838.19 586,289.81 8,536,025,74 Capital Outlay: General government Parks and recreation 1,215.56 (1,215.56) 2,397.55 Total capital outlay 1,215.56 (1,215,56) 2,397.55 Total expenditures 9,102,628.00 9,158,128,00 8,573.053.75 585,074,25 8,538,423.29 Revenues over (under) expenditures (196,930.00) (252,430,00) 585,563.42 837,993.42 (43,553,09) Other financing sources (uses): Operating transfers in 196,930.00 196,930,00 196,930.00 196,930,00 Total other financial sources (uses) 196,930.00 196,930,00 196,930.00 196,930,00 _ (i) ~~f' Net increase in fund balance $ $ (55,500,00) 782,49~.~2 '. $ l 837,993.42 153,376.91 --- --- Fund balance - January 1 4,328,411.61 4,175,034.70 Fund balance - December 31 $ 5,110,905.03 $ 4,328,411.61 - 'b- City of Andover 3/23/2011 General Fund 2010 Fund Balance Analysis 2010 Estimated Budget December 31, 2009 $ 4,328,412 2010 Pre-Audit Fund Balance Increase (Decrease) 782,493 Projected December 31,2010 5,110,905 Less: Snow Emergency (70,000) Public Safety (70,000) Facility Management (70,000) Information Technology (70,000) MVHC (490,186) Prepaids !Inventories (206,666) Working Cash Flow (3,660,102) Estimated Balance Available for Adjustments $ 473,951 2010 Working Cash Flow Designation Calculation: 2011 Requested Expenditure $ 9,150,255 ~ ~ " \, Ci'/'fl' hi ';,"j(, ~i'!'('Ij '- \ % of 2011 General Fund Expenditures 40.00% \ ~\t~e+ $ 3,660,102 GF - Fund Balance.xls - L..I - City of Andover 3/23/2011 General Fund 2010 Fund Balance Analysis 2010 Estimated Budget December 31, 2009 $ 4,328,412 2010 Pre-Audit Fund Balance Increase (Decrease) 782,493 Projected December 31,2010 5,110,905 Less: Snow Emergency (70,000) Public Safety (70,000) Facility Management (70,000) Information Technology (70,000) MVHC (490,186) Prepaids / Inventories (206,666) Working Cash Flow (4,117,615) Estimated Balance Available for Adjustments $ 16,438 2010 Working Cash Flow Designation Calculation: 2011 Requested Expenditure $ 9,150,255 L: ~ ~ 10"') % of 2011 General Fund Expenditures 45.00% -T"'f'M $ 4,117,615 '\GI't~A" GF - Fund Balance.xls -5 - City of Andover 3/23/2011 General Fund 2010 Fund Balance Analysis 2010 Estimated Budget December 31, 2009 $ 4,328,412 2010 Pre-Audit Fund Balance Increase (Decrease) 782,493 Projected December 31, 2010 5,110,905 Less: Snow Emergency (70,000) Public Safety (70,000) Facility Management (70,000) Information Technology (70,000) MVHC (490,186) Prepaids !Inventories (206,666) Working Cash Flow (4,575,128) Estimated Balance Available for Adjustments $ (441,075) 2010 Working Cash Flow Designation Calculation: 2011 Requested Expenditure $ 9,150,255 U~S ~-J;~()r -'- ' ~\ % of 2011 General Fund Expenditures ( 50.00% ,- T~,,( pf' , '., ---""" ~ $ 4,575,128 GF - Fund Balance,xls - , - @ 1685 CROSSTOWN BOULEVARD N.W. . ANDOVER, MINNESOTA 55304. (763) 755-5100 FAX (763) 755-8923 . WWW.CI.ANDOVER.MN.US TO: Mayor and Councilmembers FROM: Jim Dickinson, City Administrator SUBJECT: 2011 Budget Implementation Progress & February 2011 Investment Report DATE: March 29, 2011 INTRODUCTION The overall City of Andover 2011 Budget contains total revenues of $28,910,245 and total expenditures of $30,785,805. The $1,875,560 of expenditures over revenues is largely due to prepaying debt in order to save on interest expenditures. The 2011Budget includes a total property tax levy of $10,856,299: $7,500,802 (69.09%) operational levy, $1,929,112 (17.77%) debt service levy, and $1,426,385 (13.14%) capital/watershed levy. This reflects a zero percent gross levy increase as compared to the 2010 budget. DISCUSSION The following represents City Administration directives and departmental expectations for 2011: 1. Expenditure budgets while approved, expenses are to meet with the spirit that needs are fulfilled first, expansions of service and special requests are to be reviewed with City Administration before proceeding. 2. Departments are committed to search for the best possible prices when purchasing goods and services. 3. Departments are committed to continually searching out new efficiencies and to challenge the status quo of how the City provides services. We don't do things (or provide a service) just because we have always done it that way! 4. Departments are committed to searching out collaborative opportunities with our neighboring government agencies to facilitate efficient and cost-effective utilization of governmental assets and personnel. 5. Department are committed to developing effective consistent and ongoing communications with City residents, businesses and other stakeholders. The following attachments are provided to assist discussion in reviewing 2011 progress: other documents may be distributed at the meeting: 1. General Fund Expenditure Budget Summary - Budget Year 2011 through February 2011 2. Investment Maturities Summary - February 2011 (Investments managed by City Treasurer) ACTION REOUESTED The Council is requested to receive a presentation and provide direction to staff. ~ CITY OF ANDOVER General Fnnd Bndget Summary Totals Bndget Year 2011 I 2010 I I 2011 I I REVENUES I Bndget Feb YTD % of Bud Final Budget Feb YTD % of Bud General Property Tax $ 7,308,495 $ 0% $ 7,191,603 $ 7,217,219 $ 0% Licenses and Permits 237,055 35,627 15% 329,901 250,080 37,378 15% Intergovernmental 567,498 190,557 34% 570,097 558,215 174,055 31% Charges for Services 543,500 47,459 9% 755,184 580,200 75,867 13% Fines 100,750 10,008 10% 104,780 105,750 6,513 6% Investment Income 65,000 (9,849) -15% 70,368 65,000 (13,225) -20% Miscellaneous 83,400 47,313 57% 136,684 84,900 51,903 61% Transfers In 196,930 196,930 100'10 196,930 196,930 196,930 100% (1) Total Revenues $ 9,102,628 $ 518,045 60/0 $ 9,355,547 $ 9,058,294 $ 529,421 6%l:! \.,J' I 2010 I I 2011 I I EXPENDITURES I Budget Feb YTD % of Bud Final Budget Feb YTD 0/0 of Bud GENERAL GOVERNMENT Mayor and Council $ 104,251 $ 33,817 32% $ 100,710 $ 106,956 $ 34,635 32% Administration 132,967 17,413 13% 131,218 138,157 20,876 15% Newsletter 23,000 3,300 14% 17,094 27,500 3,300 12% Human Resources 60,744 4,032 7% 54,968 36,221 4,129 11% Attorney 178,500 14,500 8% 172,774 178,300 14,355 8% City Clerk 96,828 14,443 15% 95,166 103,333 15,576 15% (<0, Elections 49,126 710 1% 37,927 6,750 753 11% \::':1..1 Finance 202,011 36,031 18% 194,865 212,967 38,581 18% Assessing 152,500 0% 144,760 152,500 0% Information Services 150,812 11% 136,931 154,871 16,742 11% Planning & Zoning 328,449 12% 327,566 355,258 38,733 11% Engineering 390,087 13% 389,037 414,408 55,345 13% Fac~lityManagement 571,716 10% 421,852 553,739 58,783 11% Tot~l ~De~al Goy 2,440,991 120/0 2,224,868 2,440,960 301,808 12% PUBLIC SAFETY Police Protection 2,599,246 0% 2,599,246 2,615,407 0% Fire Protection 1,070,385 113,891 11% 967,716 1,077,084 11% Protective Inspection 346,282 42,151 12% 330,709 363,789 13% Civil Defense 15,909 4,430 28% 15,450 16,463 23% Animal Control 9,970 948 10% 6,952 9,970 6% Total Public Safety 4,041,792 161,420 4% 3,920,073 4,082,713 40/0 PUBLIC WORKS Streets and Highways 556,452 55,652 10% 518,989 578,050 64,224 11% Snow and Ice Removal 489,381 110,519 23% 537,948 489,315 167,252 34% ,} " ,) Street Signs 195,562 12,565 6% 166,244 196,712 15,624 8% Traffic Signals 36,000 683 2% 25,830 36,000 1,392 4% Street Lighting 36,400 2,642 7% 30,885 36,400 2,661 7% Street Lights - Billed 200,000 14,433 7% 186,321 206,000 14,492 7% Park & Recreation 872,633 78,290 9% 827,910 916,832 92,810 10% Recycling 118,838 9,859 8% 109,034 122,273 12,736 10% Total Public Works 2,505,266 284,643 11% 2,403,161 2,581,582 371,191 14% .9) OTHER 170,079 18,500 11% 24,953 45,000 7,500 17% 170,079 18,500 11%. 24,953 45,000 7,500 17% Total EXl"'nditures $ 9,158,128 $ 749,645 80/0 S 8,573,055 $ 9,150,255 $ 845,400 9%: NET INCREASE (DECREASE) $ 782,492 $ - 'd. - e' a 0-,,,, "'0 "" , , , V) '" ~ '" '" 00 00 "'V) 00 !50 00;' r-: ....: v)"' '" ""~ V) t- o-, ,,~ t-V) t- o .... 0 ",. ::E '" '" ]' ""V) t-t- '" , , V) 0-, ""'" '" '" ~ 00" 00", '" " 0 0-."' 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E " fr > " " " -0 ~ " ~ .- ,-- > ~ ... '" ~ '" -0 <S" " 0 a .... oo Ol " " .... " .0 .0 .s -'" E til > iJ "- ! g, l!l gj (;> " ~ ~ .;;; " """b ~ Ol v c .~ 0 Ol 0 " en f-< '" " \...J- ::E 0 0 ::i " u U ....l Cl e @ @ -j ~3 - @ 1685 CROSSTOWN BOULEVARD N.W. . ANDOVER, MINNESOTA 55304. (763) 755-5100 FAX (763) 755-8923 . WWW.CI.ANDOVER.MN.US TO: Mayor and Councilmembers FROM: Jim Dickinson, City Administrator SUBJECT: Discuss 2012 Budget Developrnent Guidelines DATE: March 29,2011 INTRODUCTION City Administration is starting to focus on the 2012 Annual Operating Budget Development process and is looking to the City Council to establish the Council's guidelines for the preparation of the 2012 Annual Operating Budget. DISCUSSION The following are some suggested 2012 Budget Development guidelines for vour consideration and could be impacted by the Councils discussion on longer term policies and values and goals the have been used for the past few vears : 1) A commitment to a City Tax Capacity Rate to rneet the needs of the organization and positioning the City for long-term cornpetitiveness through the use of sustainable revenue sources and operational efficiencies, Note: Preliminary Anoka County Assessor taxable market value figures for the City of Andover are reflecting a 6.7% decrease in total taxable market value, The City will also not receive any Market Value Homestead Credit in 2012. It is likely the State of Minnesota will place levy limits on cities for 2012 levies. 2) Continue with the current procurement and financial plan to appropriately expend the bond proceeds generated from the successful 2006 Open Space Referendum, Note: Staff has been active pursuing the third open space purchase. It is anticipated a closed session with the City Council will be held in the near future to discuss progress. 3) A fiscal goal that works toward establishing the General Fund balance for working capital at no less than 40% of planned 2011 General Fund expenditures and the preservation of emergency fund balances (snow emergency, public safety, facility managernent & information technology) through targeting revenue enhancements or expenditure limitations in the 2011 adopted General Fund budget. Note: With vroverty tax revenues making uv 80% of the total General Fund revenues (uv from 74%) additional cash flows designations are aVlJropriate, 4) A commitment to limit the 2012 debt levy to no more than 20% of the gross tax levy and a commitment to a detailed city debt analysis to take advantage of alternative financing consistent with the City's adopted Debt Policy, Note: The 2011 levy was 17. 7%, the margin available to 20% is sufficient to fund a small equipment bond 5) A comprehensive review of the condition of capital equipment to ensure that the most cost- effective replacernent schedule is followed. Equipment will be replaced on the basis of a cost benefit analysis rather than a year based replacement schedule. 6) A team approach that encourages strategic planning to meet immediate and long-term operational, staffing, infrastructure and facility needs, 7) A management philosophy that actively supports the funding and implementation of Council policies and goals, and a commitment to being responsive to changing community conditions, concerns, and demands, and to do so in a cost effective manner. ACTION REQUIRED The Council is requested to review the aforementioned proposed Budget Developrnent guidelines, discuss whether or not they are appropriate for developing the 2012 Annual Operating Budget, and ultimately approve 2012 Budget Developrnent Guidelines. C I T Y o F @) NDOVE 1685 CROSSTOWN BOULEVARD N.W. . ANDOVER, MINNESOTA 55304 . (763) 755-5100 FAX (763) 755-8923 . WWW.CI.ANDOVER.MN.US TO: Mayor and Council Members FROM: Jim Dickinson, City Administrator SUBJECT: Council Goal Discussion DATE: March 29,2011 INTRODUCTION At the February workshop, the Council decided to independently submit City goals. DISCUSSION Administration has assembled the submitted Councihnember goals and arranged the submissions into an attached document in the following categories: 1. Fiscal Goals 2, CommerciallResidential DevelopmentlRedevelopment Goals 3, Collaboration Goals 4, Service Delivery Goals 5, Livability/Image Goals Also attached is the agenda data from the February Workshop that identifies previous goals. ACTION REOUESTED Review the attached 2011-2012 Council goals to determine what the Council would like to formally adopt at the April 5th City Council meeting. City of Andover 2011-2012 Submitted Goals Fiscal Goals: 1, Review TIF district expirations; discuss future planning and options available which may include the creation of new TIF Districts. 2, Assure city financial stability through cost effective services. 3. Explore new revenue streams. 4. Don't commit dollars today that will commit the City to unsustainable future expenses. 5. Focus spending on cornrnunity needs; wants need to be supported by new or redirected sustainable revenues, 6. Discuss employee salaries and the review process with the budget development process, this should include reviewing salary ranges, cost ofliving adjustments (COLA), longevity, and merit based pay, CommerciallResidential Develooment/Redevelooment Goals: 1, Upgrade/redevelop Kottke and POV's areas. 2, Discuss more business friendly costs/regulations; Help stimulate business growth in Andover, 3, Develop a business outreach plan to improve our relationship with the business community, 4, Develop business loan program for commercial developrnents, (Recently the City of Coon Rapids helped a company expand by using a loan program through their HRA. They loaned them $100,000 and with help from the State ($250,000) the company is expanding to work on a cancer drug, It is estimated that this will create 14 new high paying, high techjobs within the next two years). 5, Develop and create a master plan fOT an expanded City Center area, 6, Look to expand existing commercial areas and find new ones (ex. Holasek comer), 7, Business - Move forward with the EDA goals including creating new TIF district with projects that have possibility of success within 5 years, 8. Evaluate how to rneet sewer/water needs of any proposed development projects. 9, Review our development review processes to reduce unnecessary development costs (duplication). 10, Be more supportive of those investing in our community; evaluate rules that frustrate businesses including the use of temporary signs, 11, Stripe more right turn lanes off Hanson and other country roads. 12. Fill vacant CD position with skill set for economic developrnent and redevelopment. Collaboration Goals: 1, Rethink how we deliver existing basic city services and seek lower cost with increased productivity. 2, New collaboration policies must be a win-win for the participating city, 3, Eliminate a go it alone philosophy, should we provide services to others for a profit? 4, Continue to work on developing working relationships with: school district, county, and adjoining cities; the goal being to reduce costs, irnprove delivery of services, and be efficient as possible. 5. Continue with collaborative efforts where it meets our goals/reduces costs, Service Deliverv Goals: 1. Eliminate parks not used or useable for cost savings; consider elimination of tot lots; focus development on larger parks and trail system, 2. Explore if we should continue to depend on the sports associations for program delivery, 3, Go paperless at City Hall. Council packets online. Possibly use the $30,000 frorn QCTV to purchase laptops for council and staff and update software where needed, 4. Maintain our lean, efficient city operation, 5, Set up Administrative fine process to reduce use of courts, increase local revenues, and improve compliance, 6, Negotiate with Sheriff to improve community policing, 7, Use community education residual dollars for local programming during summer or school days as community center kids programs, 8, Review our processes to reduce unnecessary service deliveries. Livabilitv/Imae:e Goals: 1, Emphasize quality of life as a basic function of city government. 2, Keep the open space concept a real and viable issue, 3, Continue efforts on Hanson Blvd. sustainable landscape project. 4, Develop City livability issues program including: Met council, police/fire service delivery, transportation, civic amenities, development guidelines revisited, Involve citizens in discussions, 5, Take a serious look at joining Livable Communities Act. 6, Expand Metro Transit into Andover, What are the costs and how can we do it? 7, Be creative in improving and adding amenities to our daily life in the city (rnusic in the park, public events, special sale events, coordinate with community center for special events, etc.). 8, Include city vision statement on website, (1) 1685 CROSSTOWN BOULEVARD N.W. . ANDOVER, MINNESOTA 55304. (763) 755.5100 FAX (763) 755-8923 . WWW.CI.ANDOVER.MN.US TO: Mayor and Council Members FROM: Jim Dickinson, City Administrator SUBJECT: Council Goal UpdatelFuture Direction Discussion DATE: February 22, 2011 INTRODUCTION Over the past few years the City has taken different approaches to establishing goals for the subsequent year. In 2009 the City decided to hold an off-site strategic planning meeting with the Council, Administrator and department heads to prioritize and set the tone for establishing a longer term vision beyond just setting annual goals/tasks. That strategic planning session was held on April 25, 2009 at Connexus Energy and was facilitated by Rusty Fifield :from Northland Strategies. Attached is the facilitator's recap of that session that was presented to the Council at the June 23,2009 Council Workshop. The fmal outcome of the sessions was a City slogan "Welcome Home" and the following vision statement: "Andover, a safe, growing community in which to live and work which enhances the quality of its citizens' lives through recreational opportlmity, quiet neighborhoods, civic involvement, and fIScal and environmental stewardship". Attached to this report is the recap report of the strategic planning session. Years prior to 2009, the City Council undertook a more informal process and submitted individual goals/tasks that were prioritized, ultimately adopted and that staff used as a supplemental work plan for the subsequent year, The updated results of those processes are attached for your review. DISCUSSION Administration would like direction from the Council on how they would like to address goal setting for 2011. It could be as simple as individual council members submitting new goals/tasks they would like considered for the 2011-2012 Council goal year, another intensive strategic planning session could be coordinated, or some other process. The last discussion at the February 17, 2010 workshop (minutes attached) discussion produce a few new requests, which for the most part have been accomplished, ACTION REOUESTED Review goals progress and either set 2011-2012 Council goals or determine the process to do so. Ii NORTHLAND STRATEGIES Special Projects Group MEMORANDUM To: City of Andover From: Rusty Fifield Date: May 6, 2009 Re: Results of Strategic Planning Workshop This memorandum reports the results of the Strategic Planning Workshop held on April 25, 2009. The memorandum complies all of the information reported by the workshop participants. It also contains some of my observations as the workshop facilitator. Visron The workshop solicited input on the elements for a vision for the future of Andover. Each workshop participant was asked 10 provide up to ten items that describe the vision for Andover. The complete Iisting of reported items can be foundin Attachment 1. This information should be use4 to create a vision statement There is no single template for a vision statement. I suggest that you try not to confuse a vision statement with a mission statement. Mission statements tend to be brief (several sentences) and relatively generic. Vision statements should not be constrained by a specific length. The purpose of the vision statement is to list the qualities and characteristics that describe Andover, The vision statement should be viewed as a tool for guiding decisions and plans. Elements of a vision statement suggested by your discussion include: . Andover is recognized as a community of choice through high quality of life and excellence in governance. . Andover provides effective services that meet changing community while striving to make services affordable. . Andover is a place of well planned and maintained neighborhoods that offer housing for people of all ages. . Andover manages growth to protect the natural resources and character of the rural area. . The effectiveness of city government depends on the ability to attract and retain skilled staff. Values The City has an existing statement of values (see Attachment 2). The Workshop included a brief discussion of these values. No changes in the existing statement were suggested. NOJ:th1and 5ecuIilies,li:u:. 45 South 7th Street, SulIe 2000, MJnneapoIis,MN 5540Z TollFree 1-200-851-292.0 Main612-ll51-6900 www.northIandsecurities.ann MemberFINRAand SIPC @ Results of StrategW Planning Workshop May 6, 2009 Page 2 Challenges Workshop participant were asked to identify the most important challenges (not more than ten) facing Andover. '!he challenges reported by the group are listed in Attad:unent 3 to be used as a resourre for cxmtinued planning. The group discussion of challenges focused on the fonowing: 1. Maintaining a positive image. 2. Maintain the housing stock. 3. Providing quality services with increasing financial: constraints. Key services identified - snow removal, street maintenance, water freatment, trails, parks/recreation, and schools. 4. Preserve lean staffing and promote organizationa1 pride and leadership. 5. Encouraging City Council to be visionary. 6. High use of water resources combined with continued growth. 7, Mandates (federa1-state-county-regional) and costs to implement. 8. Intergovernmental relationships - County and adjacent cities. 9. Number of unsupervised. youth after school. Who is advocate for addressing issues? 10. Lack of Andover post office. 11. Need to master plan rural reserve area. 12. Expiration of existing TIF districts. 13. Need for uniform and consistent policies. Where is lhe line? Ability to say "no". Opportunities Similarly, participants were asked to identify the key opportunities (notmore than ten) for Andover. The results are listed in Attachment4 to be used as a resource for continued planning. The group discussion of opportunities focused on 1he following: 1. N~ service delivery approaches - partnerships, consolidation. 2. Work with school district on shared issues. 3. Recession/slow down = opportunity (time) to address issues. 4. Staff planning. 5. Leam from "exit interview" as people move out of Andover. 6. Operate without State funding. 7. Economic asset of expiring TIP districts. 8. Master plan for City Center area. 9. Anticipate/plan for next redevelopment. 6) Results of Strategic Planning Works1wp May 6, 2009 Page 3 10. Encourage community pride through use of volunteers. 11. Community events with multiple benefits. 12. Improve image with business commtmity. Goals For the discussion of goals, participants were divided into three groups. Each group was charged with identifying most important goals for the City of Andover, in light of the vision, values, challenges and opportunities discussed atthe Workshop. The goals reported by the three groups are: 1. Community market value preservation plan - build and maintain a community with positive and growing (commercial and residenlial) market values. . 2. Explore pIs opportunities (public and private). 3. Explore and plan for new styles of development and redevelopment (being aware of clianging economy). 4. Look at new areas for commercial/business'expansion. 5. Evaluate delivety of park and recreation services for conummi.ty. 6, Better utilize volunteers to enhance community. 7. Maintain current level of service and quality of service. 8. Manage growth to stay within current infrastructure. 9. Identify the next TIF districts. 10. Develop strategy for business outream. 11. Fiscal planning (5-10 years). 12, Physical planning - redevelopment priorities (Kottkes, Hughes, Crosstown). 13. Maintain existing housing stock. 14. Open space/imagelbusinesses (parks, trails, maintain what's out there, communication). 15. Contractual services (residents expect more from City, succession planning). The goals recorded during the group discussion were the following: 1. Strategy for business outreach - keeps existiitg and expands. 2. Financial planning (5-10 year horizon) for City. 3. Maintain current levels of service quality. 4. Explore partnerships, 5. Planning priorities - new growth and redevelopment @ 'i Results of Strategic Planning Warkshop May 6, 2009 Page 4 6. Manage growth to stay within capacity of infrastructure, especially water and roads. 7. Evaluate delivery of park/recreation services (programming). 8. B~use of volunteers, $) Results of Strategic Planning Wurkshop MP.y 6, 2009 Page 5 Attachment 1- Elements of Vision Reported by Partidpants 1. An attractive community with positive & 29. Keep costs low - work with other public growing market values that is drawing new agencies residents and businesses 30. Lean, efficient Oty services 2, Aware of & evaluating trends - housing, 31. Quality basic services at the most cost parks, employment, services and effective price transportation 32. Assure lowest tax rate possible. 3, Lead dog community 33, Financial stability 4, Provide a good quality of life 34. Plan the City toward the future - keeping in 5. A community that draws new residents for mind budget constraints its quality of life. 35. Maintain current levels of service with less 6. Do not allow overcrowding of residential 36. Explore new revenue sources for Capital units (density) Equipment needs 7, Keep the mix of rural & suburban living 37. Maintain physical image of city 8. Insure integrity of housing stock 38. hnprove roadway landscapes throughout 9. Build quality neighborhoods the city 10. Preserve variety of life rural/urban 39. Oty's image in the press 11. Guide retail services in appropriate 40. Quality city image in view and in service locations 41. Maintain very positive image of park system 12. Expand commercial growth 42. A community that has attractive areas of 13. A community with a strong & growing commercial development that provid~ high- . business community that takes pride in their paying jobs community & views their city as a partner 43. Effective transportation 14. Preserve open spaces 44. Improve transportation 15. Maintain open space 45. Improve communications with Sheriff's 16. Increase and preserve natural features in office to address quality of life issues city 46. Feeling of safety . 17. A community that values & protects the 47. Openness in government environment and is a~are of & respectful of 48. Continue to provide good customer service its history 49. Community involvement 18. Upgrade & expand trail system 50. Opengovemment 19. Clean,. neat City parks 51. Maintain openness with residents and 20. Recreation programs motivate people to interact with city officials 21. Community events 52. A community that is conscious of & 22. Senior programs responsive to its' residents concerns 23. Health & fitness 53. Government that is open to residents with 24. Provide facilities & opportunities for the respectfuL communication young 54. Partnerships 25. After school programs 55. Building relationships 26. Keep tax rates low 56. Pursue energy efficiencies for City facilities 27. Maintain <:urrent levels of fiscal 57. On-going oversight of services responsibility 58. Provide a service that is uniform and 28. Funding sources for additional staffmg - consistent for all maintain current service levels 59. Proactive VB. reactive @ Results of Strategic Planning Workshop May 6, 2009 Page 6 60. Keep up with new technology to enhance 62. Family first customer service 63, Continue to maintain infrastructure 61, Creative at problem solving . 6) Results if Strategic Planning Workshop May 6, 2009 Page 7 Attachment 2- Existing Values 1. Excellence and Quality in the Delivery of Services. The City of Andover believes that services to the public is our reason for being, and strive to deliver quality services in a professional and cost- effective manner. 2 Fiscal Responsibility. The City of Andover believes that fiscal responsibility and prudent stewardship of public funds is essential if citizens are to have confidence in government. 3. Ethics and Integrity. The City of Andover believes that ethics and integrity are the fotmdation blocks of public trust and confidence and that all relationships are built on these values. 4. Treating the Citizen as our Customer. The City of Andover believes that the citizen is our customer and, as such, should be treated with courtesy, respect, and integrity. 5. Open and Honest Communication. The City of Andover believes that open and honest communication with each other and the public we serve is the key to having an effective organization and informed citizens~ . @ Results of Strategic Planning Workslwp May 6, 2009 Page 8 Attachment 3 - Challenges Reported by Participants 1. Hughes Industrial Park 35. Younger demographics 2. Commercial 36. Large teen population 3. Recruiting quality businesses 37. Community getting older 4. Support businesses 38. Definitive "NO" not apparent 5. Crosstown Redevelopment Area 39. Provide a service that is uniform and 6. Attracting & keeping business in the City consistent for all 7. Rental 40. "Bottom Line" only thinking vs. value- S. Lots/l'ownhome A5sociations oriented thinking 9. Growth 41. Staff is small in number 10. Decline in housing starts 42. Maintaining positive community image 11. Finding anew normal for City not 43. Listening dependent on growth 44. Sensitive to public needs 12. Master planning of Rural Reserve 45. Community Obstructionists "Those by 13. Rural Reserve Development choice & those by impact" 14. . Lack of growth - tax base 46. Met Council 15. Keeping up with quality vs. $ 'l7. Coordinating with County & schools 16. Lack of revenue sources State!Loca1 48. Fed/State/County government regulations 17. State budget crisis after crisis, ... 49. Not being bureaucratic 18. Holding the line on property taxes SO. Working with inflexible County Engineer on 19. Recession road issues impacting our City 20. Limited Market Value/Revenue options 51. Get a post office 21, Maintaining property values 52. Demands for more parks & trails 22. Fiscal responsibility 53. Parks budget is 1st on budget cuts 23. Economy 54. Providing park services in bad economy 24. Finding resources for park & trail 55. Traffic concerns as growth continues development 56. Transportation needs - Light Rail 25. Government efficiency 57. Declining infrastructure without 26. Provide services within budget constraints replacement reserves 27. Provide needed services in a bad economy 58. Effects of locaVsurrounding cities 2S. Residents wanting more 59. Property crime rise 29. Less dollars for equipment & infrastructure 60. Failure of Bruggeman project 30. Can & will we be able to keep existing 61. Impact and use of water supply resources staffing levels? 62. Socialism 31. Cut budgets 63. Competition 32. Implications with demise of TIF Districts 64. Is the City ready for all types of emergency 33. Foreclosures events? 34. Diversity changes in community 65. Maintain good communication with Public (9) I Results of Strategic Planning Workshop MP.y 6, 2009 Page 9 Attachment 4 - Opportunities Reported by Participants 1. Redevelop Industrial Park 31. Active community - involved 2. Four-plex Redevelopment 32. Community involvement 3. Redevelop Kottke Area 33. Residents who want to volunteer & serve, 4. Kottke's Bus Redevelopment many skills & diverse backgrounds 5. Redevelopment West of City Hall 34. Transportation needs - bus to light rail 6. Clocktower Commons Commercial Area stations 7. New business 35. Transportation 8, Attract businesses from other cities that 36. Rail transit opportunities . need sewer & water commercial space 37. Work with County on traffic issues 9. Expand commercial tax base 38. Community image 10. Rezone now for future retail needs 39. Summer Concerts 11. Joint efforts with other cities 40. Farmers Market 12. Consolidation with another city 41. BYRNE JAG 13. Joint staff/purchasing with other cities 42. Buffalo Wild Wings 14. Collaboration with Athletic Assoc. on park 43. Time to fule tune projects expansions & upkeep 44. Alternate fuel & energy sources 15. Partnerships with other cities and 45. Technology government agencies to advocate mutual 46. Recession spurs recoveryl Chase an interests, solve problems, inform industry for Andoverl 16. Coordinate with school district on energy 47. Recession "Time to address those issues outstanding issues" 17. Can Andover provide contracted services to 48. Life cycle other cities? 49. Popular well-read City newsletter 18, Contract services, positive or negative? 50. Home show expansion 19. Long-term. knowledgeable council dedicated 51. Legislative impact at the State level to improving & serving the community 52. Irrigation of parks 20. Great management team now - take 53. Time to plan & review what we've done - advantage of it! how to improve 21. Young, well-educated, tech-savvy staff that 54. Expand trail facilities is creative & can help leaders use hindsight 55. Make website better & oversight to build better developments, 56. Well-run successful Community Center protect wetlands & waterways, and anticipate trends. 22. EfficiencyofOpemtions 23. Restructure staff - maximize cross training 24. Stream-line 25. Taking advantage of current structure 26. PolicelFire fulltime 27. Expand Fire Dept (medical) 28. 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U rIl .~ 8' ~ 'fil,s 1il b/) u ]j .s~ t);::' 8gS1&::];9~ >0.. ~ ~.....Otllal ,0"00 _ s~ ~ oo<I:U~~~s~a 'l(: en CI .... N ~ .... .... .... 19 ~d~a~.B..8 ~ .s0"C0 00 @...d"C~'E ';J '" <U'.o I ,- >:zj >8<~.B o:l -lo >> <U'sg '" :> "0 0 > :.9 ,- 0:> ... ~ g '" 0 ('<l ~ <Ii ;:s.g<U8u8"s "00 erJ'1]'Q bIl . il <U~ "0 .~ <U ~ <U ~ ~ ~ S 8 ~ .~ E '3<U'.o .... '" ... Co).s ,J:J.~ ~ o 'G:$ 'a <U 0 ~ ~ 0 g.2 ~ .B.~ e .- . 0. :l:l ~,.l.40~~.s... ,J:J ~ 1S.'51 "C <U .s ~ g ~ ~ ~ ,i-'~ .~ 1;l -a:::I ..: ~ C ~"O 0;'" 0;9 81ii t:l 1a~"gt:5~g p 0. bfl ~ ... = a.. .... o '"' .."C .... 0 ~ p. a.. u 0;:) ~oo '<t "C II) ~ ~ '0 c- o( ~ 0.0 '<t o~ - El ~ 2J, "C I .s 0 Q., "'''0 ell .~ g ;:s U 0 o ... "0 ~ ~ <~] ~ 'II: l") "'it ." @ .... .... .... L .._ ~ / .. Andover City Co 1 Workshop Meeting ,l'" Minutes-February 1 , 010 /' ~6 / Councihnember Jacobson stated " ht nowthehWlters needed the landowner~rmission in order to hunt. He asked if the existing ord' nee should be changed and if.i itt.ditf. . then the Planning and Zoning Commission should look at this d make a recommendatigWlO the Council. . ,#' Councilmember Trude stated the City allo r a resident ply for a code change and have it go through the Planning and Zoning process. " Councilmember Bukkila stated she understood w~. oward was saying. but if someone knew about illegal hunting, then that person should ~'911 as an inance would not stop a hunter who was not following the rules. / Mayor Gamache stated there wouldA to be clarification in the rn talking about also. / Councilmember Trude as if the City should expand the bow hunting areas. stated if the City is 100 . g to control the deer in the residential areas, there are or had professional bo un1ers who could take care of the problem, Council's co nsus was reached to take this through the Planning and Zoning process wi nons from the Council. uncil recessed at 7:45 p.m. The Council reconvened at 7:55 .m, _ _ _. ____.. .J __-"""",, ..........._._,..._.._.._ COUNCIL GOAL DISCUSSION ''I.Q ) Mr, Dickinson asked how the Council wanted their goal process to be done this year. /'" 0 "'~Ol :J · Councilmember Jacobson suggested working at reducing the number of Ordinances by five percent. Mr. Dickinson responded now that there is technology in-house to research the Ordinances. CD Councihnember Bukkila sugJteSted a citywide 1l1lIlUre sale. even if it is not sponsored by the City,l \)0 ~ She indicated this would serve the purpose of getting people into the City for a day. ) . en. 7 E. 'i:)~ ~\s {"$$~t \:V Councilmember Trude stated the City should also look into having a City art fai~; ) t\ \ t\ ~ h t Ii) 'fi'\. ~S . (Q.....U'l' + I Councilmember Jacobson recommended staff look into these suggestions further for any . ramifications and bring this back to Council, /?;\ Councihnember Jacobson asked for a dire<<tlink on the Cfur' s web~ite to the r~~P~!.~~. o~ bO'l\e \ ~ QCTV Sf? peo~.';..~uld fm~~S~~~ll..~~t~~~y.:.. . . Mr. Dickinson stated he would like to work with staff on the challenges. opportunities, and goals @ . Andover City Council Workshop Meeting Minutes-February 17,2010 O'Y\.~~~ f\~ Page 7 /' . @ prepared by Northland Strategies in May, 2009, in oarticular on llvnooving the Citx'! imrme with th~ business communi~ . Councilmember Knight asked if the City could get a post office. Mr. Dickinson indicated the post office is actually looking at reducing their current numbers. Councilmember Knight asked what the item #38 under challenges "definitive no not apparent" meant. Mr. Dickinson commented that it is likely an observation that the Council does not say no to residents when the City Code indicates that no is the answer. Mayor Gamache believed improving the image with the business community was an important goal. Mr. Dickinson stated if there are certain things the Council wanted targeted, to send him an email, but he will work to address items raised in the May 2009 Council retreat report. . .$'S:~' '~GllMllW.FlINi>BlIDGETPR~ . .. ....-. -r- ickinson updated the Council how the budget year 2009 ended and how that would im~ 2010 dget. He noted the City ended 2009 with a net increase in fund balance of close to $1 . . Council.th d staff for their hard work in keeping the budget in line for 2009, / ,/ Mr. Dickinson . there is available fund balance to help with 2011.(1'fie City maintained emergency fund balan ~ for snow, public safety, and facilities, ~. total approximately $260,000.00. He stated ~uncil needed to look at where the ~.IS going with total market _.. IN _ "". AIl<<. ~ oth"" he _ = ,old he a totoI_ Vlduo decrease of 10 to 11 percent. He' arized the potential. impacts that were not currently addressed including police state aid, aid, and special I. exemptions removal. He asked what Council's target is for the end oftbe ye~ /-". 'i\; . .'" Mayor Gamache stated he would like to'look a~~ levy increase. However, this could mean a cut ., h /" ~. III servICes somew ere. .'''''' .,1' "\~ . I -, Councilmember Jacobson stated ,.w6uld be willing to looht a one percent levy increase to give a bit ofa cushion. /1' "~'\ ", J . Mr. Dickinson as~ Council is looking at a significant gen d expenditure or tax levy decrease. He not e Council had to remember the Sheriff contrac .' coming up which he believed would b an increase of approximately 2.5 percent, he also discuss the costs associated with City s 'salary step increases, COLA, staffing increases or decreases, an . rements. Co consensus was reached to not do a drastic cut in service, but to ~aintain serviC~ as w. can and to not look at furlough reduction until after the 2010 legislative session is con ded. . ~,@ , C I T Y o F G) NDOVE 1685 CROSSTOWN BOULEVARD N.W. . ANDOVER, MINNESOTA 55304. (763) 755-5100 FAX (763) 755-8923. WWW.CI.ANDOVER.MN.US TO: Mayor and Council Members CC: Jim Dickinson, City Administrator Will Neumeister, Community Develop FROM: Angie Perera, Associate Planner f? SUBJECT: Single Family Residential Market Value Preservation Program Update DATE: March 29,2011 INTRODUCTION The single family rnarket value preservation program has been in place now for almost two years since it was first irnplernented in July of 2009, The purpose of this report is to provide an update of the program for the Council to review and allow Council to provide any additional direction, if necessary. We cUITently have a total of 237 single-family rental properties licensed within the City. Of those, 186 are due for renewal in 2011, forty-one in 2012, and ten in the year 2013. Overall, this program has prirnarily helped in protecting the rights of tenant and landlords and in rnaintaining properties in a proactive manner. The program has also helped tenants with their rights in dealing with unlicensed landlords. These properties are now brought to the County's attention for reconsideration in their property being re-classified to a non-homestead, if it is in fact being rented and currently listed as a homestead property, The program has also instilled a sense of safety for the rental properties through tracking the crime incidents on the properties. It has helped in developing and retaining contact information for the owners of such properties when we have had a nuisance code or misconduct occurrence on the property, We have also observed that the number of crime incidents is very low on rental properties and those non-hornestead properties that are not being Tented (that we are aware ot), based on data that has been obtained from the crime rnapping program, The program has helped tackle two rental properties that had crime incidents that were alerted to staff through the. use of the crime mapping program, DISCUSSION The rental program has had a few challenges along the way but has also had some positive results and feedback from the public. The rental program has been successful in providing the City with more accurate contact information of property owners which has been very helpful on a number of occasions. There continues to be challenges with suspected rental properties and the lack of responses frorn non-homestead property owners however, based on research and efforts over the past year, we now only have 72 properties that have not yet responded, 7 of which are foreclosures. 1 ResDonses & Findine:s: In general, we have received a favorable response to each rnailing notification that has previously been sent out to non-homestead property owners. There have also been a number of voluntary rental licenses subrnitted and the public seems to be rnore aware of the rental license program, In June of 2010, we had a total of 520 properties that we did not know if they were rentals or not. This number included 195 of those non-hornesteads that had not responded in 2009 and an additional 348 newly classified non-hornesteads in 2010, Over the past year, we have cross-checked the County records to make sure that the non-hornestead information was correct and we have also continued to research properties who have not yet responded, Based on those who had not previously responded and those who had a recent change in classification to non-homestead in 2010, there were a total of 151 non-homestead properties (owned by 120 different owners). In January 2011, the City mailed out approxirnately another 120 letters to those 151 non-homestead properties, Of those letters that were recently mailed, we have had a number of them come back as unclaimed and undelivered with no forwarding addresses, We have researched and found that approximately twenty-one of the unclaimed letters have new owners and/or addresses and we were able to re-rnail notifications to them. ACTION REOUIRED In the next few weeks we will be preparing a rental renewal letter for thirty-two properties that will be due for renewal in July. We are also considering attaching door hanger notifications to the doors of the 72 non-hornestead properties (that are either foreclosed or have not responded) in an attempt to make contact with someone to determine whether the property is vacant or occupied and whether or not it is being rented, If the Council is in agreement that this rental program should continue then no action is requiTed at this time, however staff would like the Council to review and discuss these efforts and provide any additional comments or suggestions as deemed appropriate. Other options for the Council to consider may include the following: modifying or discontinuing the rental program, Respectfully Submitted, 2 1685 CROSSTOWN BOULEVARD N.W. . ANDOVER, MINNESOTA 55304. (763) 755-5100 FAX (763) 755-8923 . WWW.CI.ANDOVER.MN.US TO: Mayor and Council Members FROM: Jim Dickinson, City Adrninistrator SUBJECT: Anoka County Broadband Project (Connect Anoka County) Update DATE: March 29, 2011 INTRODUCTION Connect Anoka County is the county-led effort to increase the amount of fiber optic cable in Anoka County. The Connect Anoka County project has resulted in a partnership between Zayo Bandwidth, LLC and Anoka County. Through the partnership, Zayo Bandwidth applied for and received a National Telecommunications Information Administration (NTIA) grant paying 70 percent of the fiber construction cost and initial equipment. The grant project will construct an approximately 286 mile fiber network throughout Anoka County linking 145 governmental institutions. DISCUSSION The Connect Anoka County project is currently underway; in particular the environmental assessment is scheduled to be completed by spring 2011. Some connectivity service may be provided in 2011, but project completion will not be until 2012. Zayo Bandwidth is currently working with road authorities to acquire the appropriate permits, To date entities within Anoka County have only been asked for good-faith non binding commitments, Anoka County is in the process of securing written agreernents with each entity that wishes to participate in the Connect Anoka County project. The original target date for those agreements was April 1, 2011, but with multiple entities and numerous questions to be answered, that date has been pushed out. Attached is the current version of the "Connectivity Services Agreement" the City of Andover is being requested to approve. At the workshop. City Administration and the City Attorney will review our current concerns with the document the City is being asked to approve, ACTION REOUESTED Receive a brief presentation and provide direction to staff. '-- Connectivity Services Agreement With Community Anchor Institution(s) For Broadband Services At Co-location Service Site(s) This Agreement, entered into by and between: 1, COUNTY of Anoka (Anoka County), 2100 Third Avenue North, Anoka, Minnesota 55303; and 2. , (Entity), , , Minnesota, 55_, WHEREAS, ZAYO Bandwidth LLC (ZAYO) was recently awarded a grant from the National Telecommunications and Information Administration (NTIA) which is to be combined with matching funds from ZAYO and Anoka County to build a fiber optic network in Anoka County to provide high-speed broadband services to Community Anchor Institutions; and WHEREAS, Anoka County has recently entered into a Master Fiber Indefeasible Right of Use (IRU) Agreement and a Wholesale Master Service Agreement with ZAYO in order to facilitate the purposes of the grant obtained by ZA YO; and WHEREAS, Anoka County and ZA YO have identified multiple Community Anchor Institutions to be connected by the Core Backbone and Distribution Network which will comprise the fiber optic network; and WHEREAS, Anoka County desires. to arrange for co-location service sites at various Community Anchor Institutions which have been identified for the purposes of building the fiber-optic network; and WHEREAS, Connectivity Services will become available to each of the Community Anchor Institutions at the co-location service sites as a result of the fiber- optic network built by Anoka County and ZAYO; and WHEREAS, the Community Anchor Institutions will have the option of accepting Connectivity Services initially, or allowing the equipment to be installed and reserving the acceptance of Connectivity Services until a later time; and WHEREAS, Entity is a community anchor institution which owns, leases, controls, rents or administers a designated co-location service site; and WHEREAS, it is in the interest of Entity to work together with Anoka County to facilitate ZAYO in building the fiber optic network. NOW, THEREFORE, the parties hereto agree as follows: Final Agreement as of March 4, 2011 1 I. DEFINITIONS That the parties agree the following definitions for terms used in this Agreement: a) Community Anchor Institutions: quasi-government, government, educational and public safety institutions, b) Co-location service sites: designated physical sites located in various Community Anchor Institutions located in and around Anoka County, (See Attachment A.) c) ZAYO System: an integrated multi-cable, multi-ring fiber optic communication system comprised of cables and ducts, lateral connections, and the manholes and hand holds locates therein, and related equipment required to provide Connectivity Services as provided through the NTIA grant. d) Connectivity Services: As described in Article V, e) Underlying Rights: all deeds, IRUs, (exclusive or non-exclusive) easements, rights-of-way agreements, licenses, grants, contracts and other rights, titles and interests to use real property of any third person, which are reasonably necessary for the construction, placement, location, installation, operation, use, IRU, rental, maintenance, repair or replacement by ZA YO or Anoka County, as the case may be, of the ZAYO System, Ducts, County Equipment, Cable or County Dark Fibers, f) IRU: Indefeasible Right of Use, g) Equipment: electronics, optronics, and other devices as necessary to deliver the Connectivity Services. h) Permitted use: Connectivity services shall only be used by Community Anchor Institutions for quasi-governmental, governmental, educational or public safety purposes and shall not be used to directly or indirectly compete with ZAYO. i) ZA YO Staff: Employees, consultants, and other sub-contractors working under the direction of ZA YO to install and support the ZA YO System, II. SCOPE OF SERVICES A. Anoka County will provide, through its contract with ZAYO, Connectivity Services to Entity through the fiber optic network built by ZA YO, Once the fiber optic network is built and the system is installed in the various co-location service sites, 2 I Final Agreement as March 4" 2011 2 Anoka County, through its agreement with ZAYO, its successors and/or assigns, will provide ongoing support for the provision of Connectivity Services to Entity. Only site locations identified with fee amounts on Attachment A will receive Connectivity Services. Any mutually agreed changes to Connectivity Services will require a modification to Attachment A pursuant to section XII. B, Entity shall provide space for a co-location service site where ZAYO, on behalf of Anoka County, can install equipment to be connected to the ZA YO system in order to build the Fiber Optic network. Entity shall provide Underlying Rights to the co- location site to Anoka County for the purpose of building the Fiber Optic network to the point of demarcation. C. Nothing in this agreement affects Entity's cable franchising authority. III. COSTS AND COMPENSATION A. A. To the extent that Connectivity Services are used by Entity, Entity will pay Anoka County a monthly fee as detailed in Attachment A. Fees reflect the actual costs to provide the Connectivity Services, For entities receiving connectivity services, the initial fee is established at $75.00 per month per site for 100 mbps and $400.00 per month per site for 1 gbps, Fees will be periodically reviewed to reflect current costs, but will not be modified without the agreement of both parties. Initially the fees will primarily be used to pay the proportionate share of the county's match to the project. Once the proportionate share of this match is recovered, it is expected the fee amount will decrease if other factors remain constant. Fees will be invoiced starting the month following when Connectivity Services begin, Entity will provide payment within 30 days of receipt of an invoice, Nonpayment shall be grounds for default. B. Entity shall not charge Anoka County, or ZAYO through Anoka County, for the Underlying Rights in the co-location site used by Anoka County and ZA YO to build the Fiber Optic Network. Additionally, Entity shall not charge rent, access fees, lease payments, or any other fee to Anoka County or ZAYO for the co-location space provided for the installation and housing of Equipment provided for connectivity service for Entity. 3 I Final Agreement as March 4" 2011 3 IV. PHYSICAL ACCESS TO CO-LOCATION SITE A. Entity shall provide co-location space at co-location service sites indicated on Attachment A where ZAVO, on behalf of Anoka County, can install Equipment to provide services, Security shall be maintained at the site as indicated in Attachment 8, Entity shall provide adequate power and temperature control as may be further detailed on the service order Attachment 8, Entity shall provide all Underlying Rights and rights of access necessary for ZAVO to enter the premises and to construct and maintain fiber connections across the co-location service site whether the site is owned, leased, rented or administered by Entity. B. ZAVO, on behalf of Anoka County, shall provide, install, maintain, repair, operate and control its Equipment, as necessary, Unless specifically provided in Attachment A, there shall be no cost to Entity for the purchase and/ or installation of the ZA VO Equipment. Any ZA VO Equipment shall be maintained and replaced at no expense to Entity until the earlier of August 17, 2017, or this contract is otherwise terminated, Thereafter, if the ZAVO Equipment deteriorates, or no longer supports the provisioning of services, Entity agrees that it shall pay the prorata costs incurred in the replacement of such ZAVO Equipment. C, ZAVO, through Anoka County, may request permission to place additional ZA VO Equipment at the co-location service site indentified in Attachment A to solely service commercial customers. If Entity elects to allow such installation for commercial service at the co-location service site, ZA VO shall pay to Entity $250 per month for the first device, and $100 per month for each additional device. No co-location fees will apply if ZA VO Equipment used to provide services to Entity and to Anoka County if such ZA VO Equipment is also used to serve a commercial customer, D. The ZAYO Equipment shall remain the sole and exclusive property of ZA VO, and nothing contained herein shall give or convey to Entity any right, title or interest whatsoever in the ZAVO Equipment. The ZA YO Equipment shall remain personal property, notwithstanding that it may be or become attached to, or embedded in, realty, The ZAVO Equipment shall not be considered a fixture of that real property, 4 I Final Agreement as March 4, 2011 4 Neither Anoka County nor Entity shall tamper with, remove or conceal any identifying plates, tags, or labels identifying ZA VO's ownership interest in the ZA VO Equipment. E, Equipment and service beyond the point of demarcation and/or interconnection between ZAVO's facilities and Entity terminal Equipment and the wiring at the point of demarcation shall be the responsibility of the Entity, F, Entity shall provide access to ZA VO on behalf of Anoka County to provide services for purposes of installation, maintenance and repair of ZAVO Equipment. ZAVO, on behalf of Anoka County, shall restrict access to the co-location site space to authorized ZAVO staff. ZAVO staff shall abide by any physical security requirements provided to ZA VO in writing. ZA VO shall make reasonable attempts to provide at least two days notice prior to entering the co-location site to install, maintain, or repair any of the ZAVO Equipment. If it is not reasonably possible to provide such notice, or in an emergency, ZAVO shall provide notice as soon as practicable, but in all events prior to entering the co-location site, See Attachments Band D. G, If Entity provides its own Equipment, Anoka County, or ZA VO on Anoka County's behalf, shall have no obligation to install maintain or repair the Equipment. If, on responding to an Entity initiated service call, Anoka County, ZA VO and Entity jointly determine that the cause of the service delinquency was a failure, malfunction or the inadequacy of Entity's Equipment, Entity shall compensate Anoka County/ZAVO for ZA VO's actual time and materials expended during the service call. H. Neither party shall adjust, align, attempt to repair, relocate or remove the other party's Equipment, or ZAVO's Equipment, except as expressly authorized in writing by the other party or ZA VO. I. Prior to any installation of the SVSTEM, ZAVO will submit to Entity entrance and construction plans specifying the location, construction and method of installation related to the System, Entity shall respond to the plans with any objections as soon as reasonably possible, but in any event no later than 60 days. Entity shall immediately provide notice to ZAVO of known asbestos or other hazardous substances, pollutants or contaminants as defined by the Comprehensive Environmental Response 5 I Final Agreement as March 4> 2011 5 Compensation and Liability Act (CERCLA), Title 42, U.S. Code, or similar state or federal law, J. Entity shall provide to Anoka County 24-hour contact information for the purpose of gaining co-location service site access. This information shall be used for both business hour and non-business hour services access. Entity will review and update the information provided as needed, but at least on an annual basis. See Attachment D, K, Entity shall not arbitrarily or capriciously require ZAya to relocate ZAya Equipment. However, upon ninety (90) days written notice, or, in the event of any emergency, Entity may require ZA ya to relocate co-located ZA ya Equipment; provided, however, the site of relocations shall afford comparable environmental conditions for the ZAya Equipment and a comparable accessibility to the ZAya Equipment. V. CONNECTIVITY SERVICE LEVEL REQUIREMENTS A. Anoka County, through its agreement with ZAya, shall provide Connectivity Services to Entity at the capacity level indicated in Attachment A. Any upgrades to service will be dependent on costs of Equipment, fees to ZAya, capacity limitations of the network, and other relevant factors. Entity recognizes that the network has a total bandwidth of 10GB on the core ring and 1 GB on distribution rings and distribution laterals. This total capacity is shared among other Community Anchor Institutions which are part of this project. Entity agrees to work with Anoka County to manage bandwidth and equitably resolve capacity issues on the network. B, Dark fibers will be installed at each co-location service site as indicated in Attachment A. These dark fibers will be terminated at the site and are reserved for future use. This agreement neither contemplates nor conveys to Entity present or future rights to the use of the dark fiber. Any future use will be by a separate agreement and at an additional cost. 6 I Final Agreement as March 4~ 2011 6 C, Entity may use the network only to provide service to itself, and agencies and departments of the Entity in keeping with the Permitted Uses of this Agreement. D, Transport Availability: The transport services being provided will meet or exceed 99.999% network availability for protected optical service, 99.99% for protected TDM based services such as DS3s and DS1s and 99.9% for unprotected services as measured on a monthly basis, If Network Availability is below the percentage above in two out of the three preceding calendar months not due to an Excused Outage, the same shall constitute an event of default hereunder. E. Ethernet Availability: The Ethernet Services being provided will meet or exceed 99.9% network availability for unprotected service and 99.95% for protected service as measured on a monthly basis. If Network Availability is below 99,9% for unprotected circuits and 99,95% for protected circuits in two out of the three preceding calendar months not due to an Excused Outage, the same shall constitute an event of default hereunder, F. Mean Time To Repair (MTTR): ZAYO's MTTR will be four hours for protected services and eight hours for unprotected services as measured on a monthly basis for outages of the services provided or any part of the services provided; for example an individual DS3 or group of DS3s, If ZA YO's MTTR for all protected services is greater than four hours in two out of the three preceding months not due to a Force Majeure Event such occurrence shall constitute an Event of Default on the part of ZAYO, on behalf of Anoka County, for the affected circuit. VI. TERM This Agreement will be for a period commencing on the date of signing by both parties, and continuing until August 16, 2015 (Initial Term), with up to a total of three (3) renewal periods of additional five (5) years terms (Renewal Terms) upon written amendment. Both parties shall provide written notice of intent to renew this agreement not less than one hundred eighty days (180) before the end of the Initial Term or Renewal Term. For purposes of this agreement, written notices shall be sent to the addresses of each of the Parties as indicated above, Upon the termination or expiration 7 I Final Agreement as March 4,2011 7 of this Agreement, Anoka County shall have no further obligation to provide Services and no further liability to Entity, Upon termination or expiration of this agreement, ZA YO shall be provided a reasonable opportunity to retrieve its equipment from the co-location service site(s). Any underlying rights granted by the Entity under this Agreement shall terminate or expire with the Agreement without need for further action or notice by any party, VII. INDEMNIFICATION To the extent permitted by law, each party shall indemnify, defend and hold harmless the other party, it's commissioners, council members, school board members, superintendents, directors, officers, employees and agents, successors and assigns, from all damages, costs, expenses and liabilities, including reasonable attorney's fees and disbursements, sustained in any action commenced by any third party in connection with the indemnifying party's performance of its obligations and duties under this Agreement except those damages, costs, expenses, and liabilities arising from the negligence or willful misconduct of the other party, The indemnified party shall promptly notify the other party in writing of any such law suit or claim, Under no circumstances shall a party be required to pay on behalf of itself and other parties, any amounts in excess of the limits on liability established in Minnesota Statutes, Chapter 466, or any similar statutory limits on tort liability, VIII. INSURANCE During the Initial Term, and during each renewal term, each party shall obtain and maintain not less than the insurance set forth in Attachment C, IX. LIABILITY AND LIMITATIONS OF LIABILITY A. Entity shall be liable for any loss of or damage to the ZA YO Equipment at the co-location site caused by Entity's negligence, intentional acts, willful misconduct or unauthorized maintenance subject to statutory limits. Entity shall reimburse Anoka County on behalf of ZAYO for the reasonable cost of repair of the ZAYO Equipment, or 8 I Final Agreement as March 4,2011 8 " the replacement thereof, within thirty (30) days after receipt by Entity of a written request for reimbursement. B, Anoka County shall be liable for any loss of or damage to Entity's equipment caused by Anoka County or ZA YO's negligence, intentional act, willful misconduct or unauthorized maintenance, Anoka County shall reimburse Entity for the reasonable cost of repair of the equipment, or the replacement thereof, within thirty (30) days after a written request for reimbursement and ZA YO has reimbursed Anoka County for the loss or damage pursuant to Anoka County's Agreement with ZAYO, Anoka will make reasonable effort to pursue reimbursement on the Entity's behalf. C, Anoka County shall not be liable for delays in installation, commencement or restoration of the service; for any temporary or permanent cessation of service; for errors, malfunctions, delays or defects in transmission of the service; for loss or damage occasioned by a Force Majeure Event. Anoka County's liability for any and all causes and claims whether based in contract, warranty, negligence or otherwise shall in no event exceed: 1) an amount equivalent to the proportionate charge by Anoka County to Entity for the period of service affected, or 2) if applicable, the replacement value of any Entity equipment which is lost or damaged as a result of Anoka County's gross negligence or willful misconduct. D. ANOKA COUNTY NEITHER ASSUMES NOR MAKES ANY WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AS TO THE DESCRIPTION, QUALITY, MERCHANTIBILlTY, COMPLETENESS OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OF THE SERVICE, lOCAL ACCESS OR ANY OTHER MATTER, EXCEPT AS SET FORTH IN THIS AGREEMENT. SUCH WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED. X. FORCE MAJEURE Neither party individually and Anoka County on behalf of ZAYO shall be liable for any failure of performance hereunder due to causes beyond its reasonable control including, but not limited to acts of God, fire, explosion, vandalism, cable cut, flood, storm, or other similar catastrophe, any law, order, regulation, direction, action or 9 I Final Agreement as March 4. 2011 9 request of the government, or any department, agency, commission, court, or bureau of a government, or any civil or military authority, national emergency, insurrection, riot, war, strike, lockout, or work stoppage (each a "Force Majeure event"), The party claiming relief under this section shall notify the other party of the occurrence or existence of the Force Majeure event and of the termination of such event. In the event Anoka County through ZA YO is unable to deliver services as a result of a Force Majeure event which precludes ZAYO from performing, the other party shall not be obligated to pay for the services so affected for as long as ZA YO is unable to deliver the Services. XI. COMPLIANCE WITH LAWS In providing all services pursuant to this Agreement, the parties shall abide by all statutes, ordinances, rules and regulations pertaining to or regulating the provision of such services, including those now in effect and hereafter adopted, Any violation of said statutes, ordinances, rules, or regulations shall constitute a material breach of this Agreement and shall entitle the Parties to terminate this Agreement immediately upon delivery of written notice of termination, XII. MODI FICA TIONS Any material alterations, modifications, amendments, or variations of the terms of this Agreement shall be valid and enforceable only when they have been reduced to writing as an amendment and signed by the parties. XIII. DATA PRIVACY In collecting, storing, using and disseminating data on individuals in the course of providing services hereunder, the parties agree to abide by all pertinent state and federal statutes, rules and regulations covering data privacy, including, but not limited to, the Minnesota Government Data Practices Act and all rules promulgated pursuant thereto by the Commissioner of the Department of Administration. 10 I Final Agreement as March 4, 2011 10 All data created, collected, received, stored, used, maintained, or disseminated by the parties in performing this Agreement is also subject to the provisions of Minn, Stat. S 13 et. seq. (the Minnesota Government Data Practices Act) and, pursuant to that statute, the parties must comply with the requirements of that statute, All remedies set forth in Minn, Stat. S 13,08 shall also apply to the parties, XIV. EARLY TERMINATION This Agreement may be terminated by either party at any time, with or without cause, upon One Hundred Eighty (180) days written notice delivered by mail or in person, If notices are delivered by mail, they shall be effective two days after mailing, XV. DEFAULT AND REMEDY A. Default by Entity: Entity is in default of the agreement if Entity: 1) is more than 15 days past due in paying for services as agreed in this Agreement, or any invoice pursuant to its terms, excluding those amounts which Entity has notified Anoka County as reasonably being in dispute; or 2) materially fails to observe or perform any non-monetary obligation or covenant hereunder; or 3) files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief(such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or similar law; or 4) violates the permitted uses. In the event of default by Entity, notification of Default shall be sent to the address provided below in Section XVI. Entity shall have five days to cure a monetary breach, or thirty days to cure a non-monetary breach. If the Default remains uncured, Anoka County may suspend services until Entity remedies the Default, terminate or suspend services under this agreement and/or the applicable services being provided under the service order. If Anoka County terminates this Agreement pursuant to this article of the Agreement, Anoka County shall have the right to seek full payment for amounts due for services rendered prior to the date of termination, 11 I Final Agreement as March 4, 2011 1 1 B. Anoka County shall be in default under this Agreement if it: 1) fails to arrange for ZA YO to provide the services in accordance with the Service Order (see Exhibit E) or otherwise fails to cure any breach of the Agreement after receiving written notice of default from Entity; or 2) defaults on its agreement with ZA YO and does not cure said default within five days for a monetary breach or thirty days of a non-monetary breach of that agreement: or 3) fails to notify Entity of default by ZA YO within five days of said Default, or fails to notify Entity that ZA YO has alleged that Anoka County is in Default, within five days of receipt of notification from ZAYO, Notification of Default by Anoka County shall be sent to the address provided below in Section XVI. Anoka County shall have five days to cure a monetary breach and thirty days to cure an non-monetary breach of the agreement. If Anoka County is caused to be in default of this agreement by the breach of ZAYO, Anoka County shall notify ZAYO in writing and allow ZAYO thirty days to cure, or such longer period of time as may be reasonably necessary to cure as long as the cure is initiated and diligently pursued within such thirty days or provide notice of a dispute about the existence such default. However, Entity and Anoka County may terminate this agreement upon written notice if ZAYO causes Anoka County to default by not meeting the terms of Article V, CONNECTIVITY SERVICE LEVEL REQUIREMENTS as noted above. 12 I Final Agreement as March 4L 2011 12 XVI. NOTICES Notices shall be sent to the parties at the following: Anoka County: Information Technology Director Anoka County Government Center Information Technology Department 2100 Third Avenue North Ste. 300 Anoka, Minnesota 55303 Entity: , Minnesota 55_ XVII. AFFIRMATIVE ACTION In accordance with Anoka County's Affirmative Action Policy and the County Commissioners' policies against discrimination, no person shall illegally be excluded from full-time employment rights in, be denied the benefits of, or be otherwise subjected to discrimination in the program which is the subject of this Agreement on the basis of race, creed, color, sex, sexual orientation, marital status, public assistance status, age, disability, or national origin, XVIII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations, warranties, covenants, and agreements of the parties under this Agreement, and the remedies of either party for the breach of such representations, warranties, covenants, and agreement by the other party shall survive the execution and term of this Agreement. 13 I Final Agreement as March 4, 2011 13 XIX. WAIVER. The waiver of any of the rights and/or remedies arising under the terms of the Agreement on anyone occasion by any party hereto shall not constitute a waiver of any rights or remedies in respect to any subsequent breach or default of the terms of the Agreement. The rights and remedies provided or referred to under the terms of the Agreement are cumulative and not mutually exclusive, XX. GOVERNING LAW. This Agreement shall be interpreted and construed according to the laws of the State of Minnesota, excluding the State of Minnesota's choice of law provisions. Jurisdiction and venue shall reside in the County of Anoka, Minnesota, XXI. SEVERABILITY. The provisions of this Agreement shall be deemed severable, If any part of this Agreement is rendered void, invalid, or unenforceable, such rendering shall not affect the validity and enforceability of the remainder of this Agreement. XXII. NO RIGHTS OF THIRD PARTIES. Except for specific provisions as related to ZA YO acting through the auspices of Anoka County, nothing in this Agreement is intended to confer any rights or remedies on other than the parties to the Agreement XXIII. ATTACHMENTS AND EXHIBITS. The following Exhibits are attached to this agreement and are incorporated into this agreement by reference: Attachment A: Capacity and costs for each co-location service site Attachment B: Co-location service site requirements Attachment C: Insurance Requirements Attachment D: Building Access Contact Information Attachment E: Service Order Form Attachment F: Frequently Asked Questions (FAQ) 14 I Final Agreement as March 4~ 2011 14 The following Attachments are included for reference in this agreement and are informational exhibits, but do not confer any rights onto the Entity unless also specifically included in this agreement: Attachment G: Wholesale Master Service Agreement, Anoka County Contract #2010-0239. This is a separate document in a pdf format. Attachment H: Master Fiber IRU by and between ZAya BANDWIDTH, LLC and Anoka County, Minnesota dated August 17, 2010. This is a separate document in a pdf format. (This exhibit does not include 20 pages of photographic exhibits which are included in the original, and are available to Entities on request.) XXIV. AUDIT, DISCLOSURE AND RETENTION OF RECORDS Both parties agree to make available to duly authorized representatives of the other and of the State of Minnesota, for the purpose of audit examination pursuant to Minn, Stat. ~ 16C.05, any books, documents, papers, and records of the party that are pertinent to the provision of services hereunder, Both parties further agree to maintain all such required records for six (6) years after receipt of final payment and the closing of all other related matters. XXV. INDEPENDENT CONTRACTOR A. Anoka County has entered into a separate contract with ZAya for the construction of the ZAya system/fiber optic network. See informational Exhibits G and H. ZA ya remains an independent contractor, however, and neither that agreement nor this one creates a partnership, joint venture or agency relationship between Zayo or the County, Anoka County has no authority to bind ZA ya beyond the obligations and responsibilities of those contracts, B, It is agreed by the parties that at all times and for all purposes hereunder, the relationship of the County to the Entity is that of an independent contractor and not an employee or agent of the Entity, C. It is agreed by the parties that at all times and for all purposes hereunder, the relationship of the Entity to the County is that of an independent contractor and not an employee or agent of the County, 15 I Final Agreement as March 4~ 2011 15 XXVI. ENTIRE AGREEMENT It is understood and agreed by the parties that the entire agreements of the parties is contained herein and that this Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof as well as any previous agreements presently in effect between the Anoka County and Entity relating to the subject matter hereof, The parties hereto revoke any prior oral or written agreement between themselves and hereby agree that this Agreement is the only and complete agreement regarding the subject hereof. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above, notwithstanding the date of the signatures of the parties,. ANOKA COUNTY MINNESOTA By: By: Rhonda Sivarajah, Chair County Board of Commissioners Dated: Dated: ATTEST ATTEST By: By: Terry L. Johnson County Administrator Dated: Dated: APPROVED AS TO FORM APPROVED AS TO FORM By: By: Kathryn M, Timm Assistant County Attorney Dated: Dated: 16 I Final Agreement as March 4" 2011 16 Attachments Attachment A: Capacity and costs for each co-location service site Attachment B: Co-location service site requirements Attachment C: Insurance Requirements Attachment D: Building Access Contact Information Attachment E: Service Order Form Attachment F: Frequently Asked Questions (FAQ) Attachment G: Wholesale Master Service Agreement, Anoka County Contract #2010-02391, This is a separate document in a pdf format. Attachment H: Master Fiber IRU by and between ZAya BANDWIDTH, LLC and Anoka County, Minnesota dated August 17, 2010. This is a separate document in a pdf format. (This (this exhibit does not include 20 pages of photographic exhibits which are included in the original, and are available to Entities on request.) 1 Note Bene, the MSA has two attachments which will be amended, but have not been so at the time ofthis writing. The list of 145 co-location sites has been altered since the MSA was 5igned on August 17,2010. Once the fmal sites are approved by the NTIA, this attachment will be amended. Additionally, there is an attachment which details minimum power requirements at the co-locations site of 48 volts DC, The County and Zayo verbally agreed that these requirements will be changed to standard 110 AC. This verbal agreement has not been reduced to writing as of the date ofthis writing, but is expected shortly. 17 I Final Agreement as March 4,2011 17 A TT ACHMENT A Capacity and Costs for Co-location Sites 1. Entity Name: MINNESOTA 2. Entity Contact Information: Principal Contact: Name: Position: Office Phone: ( ) Cell Phone: ( ) Home Phone: ( ) Pager: ( ) Email: Secondary Contact: Name: Position: Office Phone: ( ) Cell Phone: ( ) Home Phone: ( ) Pager: ( ) Email: Billino Contact: Name: Position: Office Phone: ( ) Cell Phone: ( ) Home Phone: ( ) Pager: ( ) Email: 18 I Final Agreement as March 4,2011 18 3. Following are the site locations included for equipment co-location: Site # Location Address City Service Monthly Ca acit Costs 19 I Final Agreement as March 4~ 2011 19 Attachment B Co-Location Service Site requirements A. Security Requirements, Entity shall provide best practices physical security to the co-location service site in the form of traditional lock service, key card, numeric access code, or electronic security system equal to that which Entity provides for its own assets. Keys, key cards, numeric access codes and the electronic security systems shall be maintained according to industry standards, Entity shall take all reasonable precautions to ensure the integrity of the security of the co-location service site, Anoka County shall make reasonable efforts to ensure that its employees and agents, including ZAYO, follow all I written instructions at the co-location site as provided by the Entity, B. Temperature and Environmental Control Requirements, Space provided to ZA YO for the housing of the ZA YO system and equipment in the co-location service site shall meet industry standards for temperature controls, humidity, lighting, and protection from power surges and outages, Entity shall ensure that the co-location service site temperature remains in a constant range between 680F and 830F, and humidity remains in a constant range of 40%--60%, Entity shall use best efforts to implement a protection plan ensuring that the ZAYO System remains functional in the event of a power outage or similar emergency. C. Environmental Space Requirements. Entity shall provide sufficient cubic space for the installation of the ZA YO system and equipment in a secure area. ZA YO shall provide the space specifications for each co-location service site directly to Entity, Entity shall ensure that the space provided to ZA YO for the installation of the ZA YO System and equipment will also include sufficient space for ZAYO to access the equipment for repairs, maintenance and upgrades, The space will be convenient to the demarcation point, and will include any necessary space to install cable, conduit, fiber, and or circuitry from the demarcation point to the equipment. 20 I Final Agreement as March 4,2011 20 Attachment C Insurance Requirements Insurance Limits. During the Term, each party shall obtain and maintain not less than the insurance set forth below: Worker's Compensation: Statutory limits. Automobile Liability Insurance: Such policy coverage will include coverage for all vehicles owned, hired, non-hired, non- owned and borrowed by the party in the performance of the obligations covered under this agreement: Combined single limit: $1,000,000,00 Commercial General Liability and lor Umbrella Liability: All liability insurance must meet the requirements of Minn, Stat ~ 466,04 subdivision 1 (a) (3) or $500,000.00, minimum liability for claims of death by wrongful act or omission and $500,000,00 to any claimant in any other case, whichever is greater. All liability insurance must meet the requirements of Minn. Stat. ~ 466.04 Subdivision 1 (a) (7) or $1, 500,000.00 minimum liability for any number of claims arising out of a single occurrence, whichever is greater, All umbrella insurance must meet the requirements of Minn, Stat. ~466,04 Subd. 1(a) (8), Umbrella insurance coverage must be on a "follow-form" basis, The above minimum requirements as to insurance coverage shall not limit the liability of either party under this agreement. The above limits may be satisfied using a combination of primary and excess coverage, self insurance as provided by Minn, Stat. ~ 471.981. Each Party shall obtain and maintain the insurance policies required above with insurance and lor reinsurance companies authorized to insure risks in Minnesota. With the exception of Worker's Compensation, each party, its Affiliates, and their officers, directors and employees and any other person entitled to indemnification hereunder, shall be named as additional insured to the extent of such indemnification, Each Party shall provide the other party with a certificate of insurance showing that the party has complied with the insurance requirements of this Attachment. Each insurance policy shall contain a provision providing such other party with thirty days advanced notice of any cancellation or material change in coverage at which time such party will notify the other party immediately of such cancellation or material change in coverage. Deductiblel Self Insured Retentions: All proof of insurance shall clearly set forth deductible or self insured retentions, Each Party shall be responsible for its deductible andlor self insured retentions. 21 I Final Agreement as March 4, 2011 21 A TT ACHMENT D Buildina Access Contact Information Entity shall provide 24 hour, seven day a week access to ZA YO for the ZA YO System equipment housed in the Co-location service site for the purposes of maintenance, service, upgrade and repairs of the equipment and system. Such access will include the name and contact information of co-location site key-holder for business and non- business hour access. All access shall comply with written instructions provided to ZAYO and County (see section IV.F), Please provide contacts below. Business Hour Contact(s) - List contacts in the order you would like them to be called, Provide a minimum of 2 contacts (you may provide as many as you would like). Contact #1 Name: Position: Office Phone: ( ) Cell Phone: ( ) Home Phone: ( ) Pager: ( ) Email: Contact #2 Name: Position: Office Phone: ( ) Cell Phone: ( ) Home Phone: ( ) Pager: ( ) Email: Contact #3 Name: Position: Office Phone: ( ) Cell Phone: ( ) Home Phone: ( ) Pager: ( ) Email: 22 I Final Agreement as March 4, 2011 22 Non-Business Hour Contact(s) - List contacts in the order you would like them to be called, These contacts should have keys for building access to the co-location equipment area and be available after hours. Select people you would like called in case of such emergencies as equipment failures, fiber hits, storm damage, emergency locates, etc, Provide a minimum of 2 contacts (you may provide as many as you would like), Contact #1 Name: Position: Office Phone: Cell Phone: Home Phone: Pager: Email: Contact #2 Name: Position: Office Phone: Cell Phone: Home Phone: Pager: Email: Contact #3 Name: Position: Office Phone: Cell Phone: Home Phone: Pager: Email: Updates may be submitted to Anoka County IT at address provided in the Notices Section. 23 I Final Agreement as March 4, 2011 23 ATTACHMENT E METROPOLITAN (LOCAL LOOP) NETWORK FIBER ACCEPTANCE TESTING PROCEDURES AND STANDARDS The intent of this Exhibit is to identify the fiber acceptances testing procedures and standards used within the Zayo's metropolitan networks, Deviations from these specifications may occur if Zayo acquires a portion of the Zayo System from a third party pursuant to the Agreement. 1. All splices shall be fusion spliced. Mechanical splices are only allowed during temporary restoration and will be replaced with fusion splices. 2, After end-to-end connectivity on the fibers has been completed, bi-directional OTDR span and power meter testing will be completed. Zayo shall perform tests after the fiber cable is installed and the splicing enclosures have been completed and are in their final resting configuration with the cable vault or hand hole covers closed. This ensures that no micro or macro bending problems with the cable or fiber strands will contribute to the loss/attenuation measurements, 3. Power meter tests shall be completed to verify and insure that no fibers have been crossed at any of the splice points within the network. Zayo shall test and record power level readings on all fiber strands in both directions of transmission (bi-directionally) using the 1310 & 1550 nm wavelengths. 4. All OTDR and power meter tests shall be completed as follows: a. All OTDR traces shall be taken from both ends of a section (between adjacent locations) and recorded using the 1310 nm & 1550 nm wavelength. Loss/attenuation measurements for each splice point from both directions shall be taken and recorded. b. The end-to-end loss value as measured with an industry-accepted laser source and power meter should have an attenuation rating of less than or equal to the following: (1) At 1310 nm: (0.35 dB/km x km of cable) + (number of connectors x 0.50) + (0.15 x number of splices), (2) At 1550 nm: (0.25 dB/km x km of cable) + (number of connectors x 0.50) + (0.15 x number of splices). c. Zayo's loss/attenuation objective for each fiber optic splice is 0.15 dB when measured in one direction with an OTDR test set (excluding connector loss, which is typically 0.50 dB per mated connector pair), If after three attempts this parameter is not met, the splice will be marked as Out-Of-Spec (OOS) and the splice will remain provided the average loss/attenuation value of all splices on an individual fiber basis shall not exceed 0.15 dB for the entire ring or subsystem. d. For bi-directional OTDR testing, the distance from Location "A" and Location "Z" shall be recorded for each splice point. The loss/attenuation at each splice point shall be recorded at both wavelengths (1310 nm & 1550 nm) in each direction. Zayo shall then average the two readings to obtain the final average splice loss/attenuation for each splice point of each fiber strand within the fiber optic cable. e, Each fiber strand color must be recorded along with its buffer tube color or the ribbon color. The laser source transmit power level using the 1310 & 1550 nm wavelengths will always be recorded together with the receive power level reading at the receiving end of the test. 5. OTDR traces will be taken and splice loss measurements recorded, Zayo will store OTDR traces on electronic media, Loss measurements will be recorded using an industry- 24 I Final Agreement as March 4, 2011 24 accepted laser source and a power meter. Copies of all data sheets and tables as well as electronic files with all traces will be available to Lessee. 6. Following emergency restoral, Zayo personnel shall perform span test documenting end-to- end attenuation measurement of each fiber at 1310 & 1550 nm wavelengths, Upon permanent repair, new splice loss readings should be no greater than the original splice loss specifications. 25 I Final Agreement as March 4, 2011 25 A TT ACHMENT F Connect Anoka County Frequently Asked Questions 1. What is Connect Anoka County? Connect Anoka County is the county-led effort to increase the amount of fiber optic cable in the county. The Connect Anoka County project has resulted in a partnership between Zayo Bandwidth, LLC and Anoka County. Through the partnership, Zayo Bandwidth applied for and received a National Telecommunications Information Administration (NTIA) grant paying 70 percent of the fiber construction cost and initial equipment. The grant project will construct an approximately 286 mile fiber network throughout Anoka County linking 145 governmental institutions. 2. Who owns the fiber optic cable? The fiber optic cable that is installed as part of the grant will be owned by Zayo Bandwith. Zayo will provide the capacity services for the governmental network and separately offer connectivity services to the private sector. The grant will also provide dark fiber strands for Anoka County use. The right to use these dark strands is conveyed to the county through a fiber Indefeasible Right to Use (IRU), which is similar to a long-term lease, Should the county decide to use the dark fiber, equipment will need to be purchased and a monthly maintenance fee paid to Zayo. 3. What are the project costs and how are they paid? The total grant-funded project budget is $19.1 million. Seventy percent of the costs ($13.4 million) will be paid by the NTIA grant. The balance of the project ($5,7 million) will be paid equally by Zayo Bandwidth and Anoka County ($2.8 million each). The county intends to recoup a portion of the $2.8 million match by charging the anchor institutions a proportional share based on a per connection charge. 4. What services are offered? The project is only providing connectivity, meaning that any governmental institution will still need to have an Internet Service Provider (ISP), The county purchases its ISP service from the State of Minnesota, Office of Enterprise Technology (OET) and is in discussions with OET to expand ISP services to include cities that are a part of the project. If this option becomes available, Cities will be notified. 5. How were the 145 anchor institutions decided upon? The agreements between Anoka County and Zayo Bandwidth specify 145 governmental and quasi-governmental anchor institutions as a part of the grant project. The list was made by asking each jurisdiction to submit a list of facilities to include in the project. As the project developed, some sites were added and others dropped at the request of the entities. NTIA will need to approve all changes. 6. Can sites be added in the future? 26 I Final Agreement as March 4, 2011 26 The agreements between Anoka County and Zayo Bandwidth limit the number of sites to 145. Any additional sites on the network will require a service request to Zayo Bandwidth. As additional governmental sites require fiber, each entity will need to conduct an analysis as to the most cost-effective way to serve the location, In some cases it may be possible to connect through one of the original 145 sites. In other cases it may be cost effective to have Zayo Bandwidth or another private company serve the facility. 7. What is the project schedule? The project is currently underway, The environmental assessment is scheduled to be completed by spring 2011. Some connectivity service may be provided in 2011, but project completion will not be until 2012. Zayo Bandwidth is also working with road authorities to acquire the appropriate permits. 8. What are the decisions needed by my entity and when? Thus far, entities have only been asked for good-faith non binding commitments, However, Anoka County will need to have written agreements in place with any entity that wishes to participate by April 1, 2011. Specifically, each jurisdiction will need to confirm the sites and the connection speed. 9. What are the costs to my entity? Anoka County will charge each entity that connects a monthly fee. Any fee charged will be included in the agreement. The proposed agreement establishes a fee of $75/month for 100 mbps service, and $400/month for 19bps service. Cities that do not need service immediately can elect through the agreement to have equipment placed at their facility as part of the project and then establish service during the term of the agreement. The monthly fee will not be charged until service is established. To establish service at that time or make some other change for sites that have equipment, the entity and Anoka County will need to modify Attachment A of the agreement. 10. What do I do if a business in my community asks me about service? Zayo Group provides a full range of business products to the private sector, If you are interested in learning more, or getting information for business expos, chamber of commerce meetings, or specific businesses, the contact is Steve Kopp, Senior Account Manager, Zayo Enterprise Networks, at 952-230-4861 or steve.kopp@zavoenterorise.com, Web site www.zavo.com, 11. Who is Zayo and how were they selected for this project? Anoka County developed a Request for Proposal (RFP) seeking a partner for the Connect Anoka County project and to submit for an NTIA grant. The county received five proposals and, after review, selected Zayo Bandwidth. Zayo Bandwidth is a part of the Zayo Group which provides telecom and bandwidth infrastructure solutions that span over 153 markets and 30 states plus the District of Columbia including over 21 ,000 miles of fiber optic infrastructure. 27 I Final Agreement as March 4L 2011 27 12. Will each Entity be required to provide easements without cost to Anoka County and/or Zayo? Yes, it is contemplated that the easement will be provided without charge to get from the right of way to your facility across the private property of your facility. Entities retain authority to charge for building permits, franchises, etc. in the right of way. 13. Will physical access be required by Zayo? The agreement contemplates that there may be specific requirements that vary from location to location. Zayo must abide by your written security requirements. For example, if you want equipment installed in a location that you do not want to give unaccompanied access to, simply state that requirement in writing. Also, you do not need to give keys, access codes, or access cards to Zayo, so presuming that you keep your facilities locked, they would not be able to enter them without someone to let them in. The access that Zayo needs to maintain your equipment is similar to other providers such as Qwest, Comcast, US Cable, etc. 14. What assurances are in place for Zayo performance? Zayo has obligations under the agreement with the County to perform as well as NTIA grant requirements that Zayo must follow, In addition, Zayo will have an incentive to complete the fiber network so they can sell connectivity services to their commercial customers, 15. Does the County agreement with Zayo include a Performance Bond requirement? No, there is no performance bond requirement. However, Zayo has notified the County that performance bonds will be required from Contractors that Zayo employs in the construction process. 16. What happens if Zayo goes bankrupt? Prior to entering into an agreement with Zayo, an analysis was completed that determined that Zayo was in a healthy financial situation. If, in the future, Zayo files for bankruptcy, the outcome would be determined by the bankruptcy court. Additionally, Anoka County has an IRU in the dark fiber, there is added protection for the integrity of the network even if Zayo is no longer available to provide maintenance and support. 17. Concern was expressed with the warranty language in Section IX.D. This type of warranty language is very typical of fiber agreements such as this. This warranty language is a pass through to the Entities of the warranties negotiated between Zayo and the County. Anoka County cannot bind Zayo to any other warranties than what is provided in the Master Service Agreement and the IRU which are attached to the agreement in Exhibits G and H. 28 I Final Agreement as March 4~ 2011 28 18. How will equipment replacement be made after the expiration of the warranty on August17,2017? If the equipment needs to be replaced after that time, the entity will need to pay the prorata costs for such replacement. In addition, consideration will need to be made for future maintenance of this new equipment. If the entity is not getting connectivity service, or no longer wants service, no replacement equipment at entity cost is required, 19. Will there be a forum for the entities to provide input in the future? It is the County's intent to continue meetings with the entities. In addition, if there is interest, we could consider creating advisory committees (i.e. technical, administrative) to provide a forum for interested entities to meet more frequently. 20. Does the agreement only address the installation of equipment at the co-location site, or does it also include the construction of dark fiber to the site? The entity needs to approve the agreement to allow the placement of equipment at the site as well as construction of the network including dark fiber to the co-location site. However, the entity may initially elect not to receive the connectivity service at a site. 21. I note the service site requirements in Attachment B (security, temperature and environmental, and space requirements). What is the size of the equipment; how much space is required, and; are there any special location requirements? The County and Zayo staff will be conducting a review of each site location over the next couple of months. It should also be noted that the Zayo equipment will be owned and managed by Zayo. The equipment will be switches that will fit into standard racks commonly found in data closets. See #27. 22. Should additional language be included for waiver of subrogation? No, the mutual indemnification language included in the agreement eliminates the need for any waiver of subrogation, 23. What is the point of demarcation contemplated in the Agreement? It is clear in the Agreement that the Entity is responsible for interconnection and wiring beyond the point of demarcation. Does this mean that the Entity will be required to wire to individual sites within the co-location service site? Yes, the Entity is responsible for wiring within each co-location site, This wiring is likely the entity's existing network. See Exhibit H for definition of demarcation point. 24. What exactly will the Entity be paying for? Does the agreement contemplate the use of dark fiber, or any additional cost to add capacity in the future? The entity is paying for connectivity which includes transport and ethernet service. The Entity will only pay if the connectivity service is used. The dark fiber will be installed with the network, but additional equipment will be required to utilize it. No specific use of the dark fiber is included in the agreement. 29 I Final Agreement as March 4~ 2011 29 25. The Agreement states that the Entity will work with the County to manage bandwidth, but what does that mean? If there are capacity issues, all the entities will need to work together to resolve them to the mutual benefit of the parties. We will also be working to monitor bandwidth utilization to identify potential problems before they impact the service. 26. Have the insurance issues been resolved so that the requirements coincide with what is currently provided through the League of Minnesota Cities? We have made edits to the insurance language with input from the cities. Kurt Glaser, Lexington City Attorney, requested an opinion from the League of Minnesota Cities, which was received on March 2, 2011. Additional edits were made to the insurance requirements in order to comply with this opinion. 27. What are the space and environmental requirements for the Zayo Equipment? Ideally there would be rack space (19'X72" standard steel or aluminum telecom relay rack) available for the switch of 8u or about 12 inches, with sufficient space to access the equipment for repairs, maintenance and upgrades. The space should also be convenient to the entity's demarcation point. To maintain maximum uptime, it would be best to meet the specified requirements for space and environmental conditions. However, if all specifications cannot be met, the County and Zayo will work with the entity to determine an acceptable equipment location. See #21. 28. Why isn't Zayo a party to the Connectivity Services agreement? Some attorneys have suggested that ZA YO should be a party to this agreement. The County's agreement with ZAYO provides that the County must secure the various co~ location sites, whether the properties are County owned or owned by another governmental or quasi-governmental agency. ZA YO has expressed disinterest in directly contracting with the various entities. 29. Who is responsible if Zayo damages equipment or systems belonging to a third party that are at the co-location site during installation? This agreement does not confer any third party benefits to anyone. The agreement is between the County and the Entity, with Zayo subordinate to the County. If the entity is concerned that Zayo will not use due care regarding a third party's equipment located at the co-location site, then the Entity should limit ZA YO's access to third party property, 30. We are not clear on the meaning of certain terms, such as Demarcation Point, Fiber Optic Network, Ducts, Network Availability, Transport Services, Ethernet Services, etc. Are these terms defined anywhere? Many of these terms are defined in the Master Service Agreement and Indefeasible Right of Use Agreement executed between the County and Zayo on August 17, 2010. A copy of these two agreements will be attached to the Connectivity Services Agreement for reference as informational exhibits. Additionally, some of these terms are "terms of 30 I Final Agreement as March 4, 2011 30 art" in the broadband and Information Technology industry, and are used here in standard industry usage. 31. Why doesn't the Entity gain ownership rights in the equipment if the city is required to pay a pro-rata share for repairs and/or replacement after the warranty period expires on August 16, 2017? The initial equipment is paid for by the grant, at no cost to the Entity. Contrast this with more typical agreements, where the Entity pays a much larger monthly fee to a provider for both the service and the equipment. If, after 2017, equipment is replaced completely the situation may change. Options for total replacement at that time, if necessary, may include replacement with Zayo Equipment, Entity Equipment or County Equipment, 32. May the entity, in particular a city, charge building permit fees, franchises, etc. to Zayo outside of the co-location site? Pursuant to Paragraphs II,C. and III.B., Entities retain franchising authority, and may issue building permits, franchise fees as allowed by Minnesota statutes, The entity may not charge these fees for the co-location site itself (for example, the entity may not charge fees for underlying rights needed to place equipment in City Hall, or a fire station which are the designated co-location sites described in Exhibit A.) 33. Will Zayo or Anoka County be providing cable services in competition with Com cast or other private cable carriers through this agreement? No. Anoka County will not be a cable provider. Providing cable TV services is not consistent with Anoka County's mission statement. The County's fibers may only be used for governmental and quasi-governmental purposes. Zayo is not a cable provider, nor does it offer triple- play services (telephone/voice, data/internet, and cable/video). While no one can predict the future, a more likely scenario is that private carriers will contract with Zayo to use Zayo's fibers to provide services to private customers throughout the county. 34. Where can I get more information on the project? By phone: 763-422-7537 (Carrie Johnson) Bye-mail: ConnectAnokaCountv@co.anoka.mn.us By mail: Connect Anoka County, Attn: Information Technology 2100 3rd Avenue, Suite 300 Anoka, MN 55303 31 I Final Agreement as March 4, 2011 31 .......-.....-,..., .",. r' , C '< ,-0?-5 ~ ! . .,4/:-2.6!D , ATTACHMENT G I '-' . , ! '. " Wholesale Master Service Agreement ~ _ This Wholesale Master Service Agreement ("Agreement") is made by as of August 1J 2010 ("Effective Date') and between Zayo I Bandwidth, LLC, a Delaware limited liability company, with an address of 400 Centennial Pkwy, Suite 200, Louisville, CO 80027, its ! affiliates andror subsidiaries (collectiveiy referred to herein as "Zayo"} and Anoka County, a body corporate and politic under the laws of j the State of.Minnesota("County"), with an address of 2100 Third Avenue, Anoka, Minm~sota 55303, Each may be re(erred to herein as , . i a "Party" and collectively as the "Parties." . 1 "This Agreeme~t sets forth the general terms and conditions governing County's purchase of telecommunications services andior i data communicatiori services ("Services") from byo, The initial Services to be provided to County are set fo.rth in the service order, i i attached hereto as Exhibit A (the "Initial Service Ord~r"), which shall be incorporated herein by referllnce. AnY.fulure Services i requesied by CountY and accepted by ZaYfJ shall be documented.in-a.service. order in the form attached. hereto as .E~hibit B.J;Ser:vice .'-..- '. , 1 , Order"). As used in this Agreement, Service Order shall include the Initial Service Order. Services shall. only be used by quasi. '.' 1 j government, government, ec!ucational and public safety institutions and shall not be used to directly or indirectly compete with Zayo j ("Permitted Use"). In the event of a conflict between this Agreement and a Service Order, the terms of this Agreement shall control I unless the Parties agree othelWise in the terms of a SelVice Order. . i 1. GRANT AWARD; CONDITIONS PRECEDENT .temp.erature control as. may be further detailed on the Service j Order. Zayo, or.its agent,"shall provide, install, maintain, repair, I I 1,1 Zayo has applied for and received an NTIA grant operate and control Zayo's !,Ieclronics, optronics, and' other I ("Granf'). The Grant will be used in part to construct and install equipment ("Equipment') as necessary to deliver the Servicell. fiber optic facilities and equipment to connect. County's Unless specifically provided for herein or in' the Service Order, i government, educational and public safety sites within Anoka Zayo shall pay the cost of purchasing and installing Zayo's , County, Minnesota (the "projecr'). The Project is estimated to. Equipment Any .Zayo equipment used in tbe provisioning of j cost approximately $19.12 million dollars. The Grant award will SelVices shall be maintained and replaced at Zayo's expense for j contribute seventy percent (70%) of the Project costs. pursuant seven (7) years from the Effective Date. Thereafter, ifthe Zayo 1 to Section 4,1, County shall make a Contribution to the Project Equipment deteriorates, or no longer supports the provisioning of ., i . cost The Parties expressly acknowledge. that receipt of th? full the Services, County agrees that it shall pay the pro rata costs , Giant award is a condition precedenUo the e[lforceability and incurred in the replacement of such equipment. ! validity of obligations under this Agreement. Further, as a second condition precedent to the enforceability and validity of 3.2 If byo colocates any byo Equipment at a County I bbligations under this Agreement, ZE.yo and County shall enter site in order to provide telecommunication selVices to a non.. . , into and execute that certain Master Fiber IRU Agreement ("Fiber County user outside of the site building, Zayo will pay a fee of 1 Agieemenf'f executed of even date herewith. between the $250 per month for the first coJocated equipment selVing a . 1 PartieS', whereby'County shall receive an indefeasibie right to use commercial user beyond the site building, and $100 per month certain strands' of fiber optic cable from Zayo as provider' for each additional device_ For clarity, no colocation fees will thereunder. apply to byo Equipment used to provide SelVices to County, i even if such Equipment is also used to seIVe a commercial 2. TERM custo)T1er. '1 "\. / .1 2.1 'This Agreement and the SelVices provided hereunder 3.3 Z:ayo's Equipment shall remain the sole and exclusive .1 .shall be in; effect for five (5) years ("Initial Term"). The property of Zayo, and nothing contained herein shall give or j .. Agreement ~hall automatically renew at the end of the Initial convey to County, or any other person, any right, title or interest j i Term for up to a total of three (3) renewals for a period of five (5) whatsoever in Zayo's Equipment. Zayo's Equipment shall remain l years each (each a 'Renewal Term") unless the Coynty provides personal property, notwithstanding that it may be, or become, written notice of its intention to terminate this Agreement by attached to, or embedded' in, realty. County shall not tamper ;', providing not less than one hundred eighty (180) days written with, remove or conceal any identifying plates, tags or labels ., ] notice before the end of the Initial Term or any Renewal Term, identifying Zayo's ownership interest in Zayo's Equipment. :i Upon the termination or expiration of this Agreement, Zayo shall 1 have no further obligation to provide Services and no further' 3.4 Equipinent and service beyond' the point of :~ liability to County hereunder, excep(.for any obligations that Zay<:l d~marcatlon andror interconnection between Zayo's facilitles and ~ may have under the Fiber Agreement.' ' County telJDinal equipment and the 'wiring at the point, of J This Agreement may be terminaled by County at demarcations ("Point of Demarcation") shall be the responsibility 2.2 of County. :~ : ! any time, without cause, upon one hundred eighty (180) days .1 written notice. Termination of this Agreement shall have no 3.5 Zayo shall be provided access to all County locations .. effect on the obligations of County under the FiberAgreement. necessary to prOVide Services for purposes of installation, ~j maintenance, and ~pair of Zayo Equipment Zayo shan restrict :-1 3. . EQUIPMENT AND INSTALlATION access to the colocation space to authorized Zayo .staff which' I staff shall abide by any County physical security. requirement 3.1 County shall provide colocation space at every site prQvided to Zayo in writing. Zayo shall make reasonable :-~ where SelVices will be delivered in which Zayo can place its attempts to provide at least two (2) days notice to County prior to :j Equipment to provide SelVices and County shall be responsible entering County'"s point of presence (POP) to install, maintain or i for maintsining the same level of security of such space as it repair any of the Equipment. If it is not reasonably. possible to ; does for the site generally. The space required under this provide such notice, or in an emergency, Zayo shan provide .1 .1 Section, to deliver the SelVices to County, shall be provided at no notice t9 County as soon as practicable, but in ail e)lents prior to i cds!' to Zayo. County shan provide adequate power and . entering the POP. ,. . . .~age 1 of 19 1 Rev, 911109 j J ... 32 .. i I: " " .' 3.6 If County provides its own equiprnenl, Zayo shall notification bf service availability at each individual site in a have no C(bligation to install, maintain or repair the equipment. Service Order is sent to County, whichever is earlier ('Service I - If, on responding to a County initiated serVice call, Zayo and Start Date"). The Parties acknowledge that it is the County jointly determine that the cause 'of the service unaerstanding of the Parties that the Services will be provided I deficiency was a failure, malfunction or the inadequacy of on a si\e' by site basis and there is no expectation that all of the equipment other than Zayo's Equipment, C6unly shall sites on a Service Order would begin to receive Services at the ! compensate Zayo for actual time and materials expended same or similar dates. during the service call. 4.4 Zayo will provide County with a monthly itemIzed , . 3.7 Neither party shall adjust, align, attempt to repair, invoIce for the Services together with all other charges due i relocate or remove the other party's equipment, except as pursuant to the terms of this Agrel'ment through the date ,..'-expressly authorize~ in writil'lg' by the other party. - - . 'Uiereof. All amounts..due-Z-ayocare.jlayaole. in..fulhwitl>ifl fifteen.:. .-. ,." County shall be liable for any loss of or damage to . (15) days from date of invoice. Delinquent amounts shaJI bear 3.8 inte,est at the rate of one and one-haif percent (1.5%) per Zayo's Equipment caused by County's negligence, intentional month or the highest lawful rate, whichever is rower. acts, willful misconduct or unauthorized maintenance, County shall reimburse' Zayo for the reasonable cost of repair of 4.5 Written requests for billing adjustments together Zayo's Equipment, or the replacement thereof, within thirty (30) with all ?upporting documentation must be received by Zayo days after receipt by County of a written request for within ninely (gO) days from date of invqlce or the right to billing reimbursement. adjustment shall be waived. In the el(ent of a billing dispute, Zayo shall be liable for any loss of, or damage to, County shall timely pay all undisputed amounts. If the dispute 3.9 is resolved against COl.inly, County shall pay such amounts County's equipment caused by Zayo's negligence, intentional due plus interest from the date the payment was originally' due. act, willful misconduct or unauthorized maintenance. Zayo shall reimburse County for the reasonable cost of repair of the 5. DEFAULT; SUSPENSION OF SERVICE; TERMINATION equipment, or the replacement thereof, within thirty (3D.) days OF AGREEMENT after receipt by Zayo of a written request for reimbursemel!l. Cou.nly shall not arbitrarily or capriciously require Zayoto 5.1 County is in Defauit of this Agreement if County: I relocate Zayo Equipment, however, upon ninely. (90) days I written notice, or, in tlie event of any emergency, Counly may a. is more than fifteen (15) days past dlje in paying ! require Zayo to rerocate colocated Zayo Equipment; provided, the Ccmtribution as it comes due, or any Zayo however, the site of relocations shall afford comparable invoice pursuant to its terms, excluding. those environmental condilions for the Zayo Equipment and a amounts which Counly has notified Zayo as comparable accessibllily to the Zayo Equipment. reasonably being in dispute; 4. PAYMENT & BILLING b. fails to' observe or perform any non-monela.iY I County shaJl contribute fifteen percent (15%) of the obligation or covenant hereunder; 4.1 Project cost, such cqntribution amounting to $2,867,698 c. files or initiates proceedings or has proceedings ! ("Contribution"),in connection with the Services in the Initial filed or initiated against it, seeking liquidation, Service Order, pursuant to the processes set au! in Fiber reorganization or other relief (such as the Agreement. In addition, for Services in the Initial Service appointment of. a trustee, receiver, liquidator,' :Order, Counly shall pay a total of $1".00 per month, for each custodian or such other official) under any site identified on the Initial Service Order, for both the Initial bankruptcy, insolvency or other similar law; Term and the Renewal Terms, if any. After the expiraUon of the Renewal Terms, fees will be mutually agreed upon but d. defaults unger the Fiber Agreement; or shall be based'on market rates.. e. violates the Permitted Uses. : 4.2 If County requests Za,yo to upgrade the capacity of the Services for any site set forth in the Inilial Service Order, In the event of a Default by Counly, Zayo shall notifY provided that the request does not exceed the maximum Counly and allow five (5) days for County to cure a monetary capacily for the core ring, or the distribution ringllateral as_ breach, or thirty (3D) days for County to cure if a non-monetary stated in t~e Initial Service Order, Zayo shall comply with the breach, and if such Default remains uncured, then Zayo may request, but shall charge a one-time non-recurring fee of $500. suspend Services to County until. Counly remedies the Default,. for each such request to compensate for labor; provided that terminate or suspend services under the Fiber Agreement or Zayo is not required to purchase any additional Equipment to Zayo may tarminate this Agreement and/or the applicable accommodate such upgrade request. Any request for Services being provided under the Service Order. upgrades in excess of the respective meximum capacily for distribution riligs/laterals or core rings as set forth in the Initial 52 If Zayo terminates this Agreement pursuant to this Service Order shall be at the then current. market rates, Article of the Agreement, Zayo shall have the right to seek full including any costs of equipment acquired in order- to provide payment for any amounts due Zayo for Services rendered prior such requested services. Any subsequent Service Orders to toe dllte of termination. Termination of this Agreement shail other than the Initial ServIce Order shall be at the rates set have no effect on the obligaUons of County under the Fiber forth in the Service Order. Agreement. . '.' 4.3 Billing for Service will commence upon County 5.3 Zayo shail be in default 'under thiS Agreement if acceptance or three (3) days' after wriUen or electronic Zayo fails to provide tHe Services in accordance with the Page 2 of 19 Rev: 9/1/09 . - . . . .. .. . ... . ... 33' . .. ....-,'....,.,.,... :' " ., Service Order or otherwise fails to cure any brea.ch of the 8. INDEMNIFICATION Agreement after receiving written notice of default from To the extent pennitled by law, each party shall indemnify, j - County. In the event of a default by Zayo, county shall notify i Zayo in writing and Z2.yo shall have thirty (30) days to. cure, or defend and hold hannless the other party, its directors, officers, ! such longer period of time as may reasonably be necessal}' so employees, and agents, succes~ors; and assigns, from all long as cure is initiated and diligently pursued within such thirty damages, costs, expenses and liabilities, including reasonable . i (30) days; or provide .noticeof a dispute about the existence l?f atlomey's fees and disbursements, sustained in any action \ such default provided, however, that Zayo must provide or. commenced by any third party in connection with the . restore Service not meetlng the tenns of. any SelVice Order indemnifying party's performance of its obligations and duties pursuant to Section 19. In the event that Zayo does.notcure . Ulider this Agreement except for those damages, costs,' such default within the allotted time as set forth above, Ggunty . . expenses, and liabilities arising fro)l1 the negligence or willful . .:i e. ,,,,-,,,..-.".-- may:'te'rriiihafe this Agreerijent upon written notiee: - - - .' -~ .'-- ,- . ...misconduct of-the' other .partyr' -The indemllilied' parlyshalfc--'~'" .-- -~.' - .~i promptly notify the other party in writing of any such suit or ~ 6. TAXES. claim. . :! 6.1 To the extent applicable, each Party shall, be fully 9. ~UBJECT TO LAWi;>> :1 responsible for the payment of any and all property, franchise, This Agreement, and the perfonnaJice hereunder of each .:j gross receipts, excise, access, bypass, sales or other local,.. ~ state .or federal taxes or charges applicable to property owned . Party, is subject to all applicable federal, state and local laws, .< by it and for taxes' on its (let income. County agrees to pay any and regulations, rulings and orders of-governmental agencies, . .~ :::; sales, use, gross receipts, excise, access, bypass. or other including, but not limited to, the Communications Act of 1934, ., local, state and federal taxes or charges applicable to the as amended, the Telecommunications Act of 1996, the Rules ;j provisioning or sale of the Services provided by Zayo~ Any and Regulations of the Federal Communications Commission taxes to be paid by County shail be' separately stated on the ("FCC'), Minnesota Statutes, Chapter 237, the Rules and .~ invoice. Prices shail not include any taxes for which County Regulations of the Minnesota Public Utilities Commission :ii , has furnished a: valid exemption certificate. ("MPUC"), the terms ancl conditions of the Graht, 'Zayo's. ~ i . . . applicable tariffs, if any, and the obtaining and continual')Ce .of d 6.2' If applicable, County shall keep on file with Zayo any required approval or authorization of the FCC, MPUC or :~ I copies of its current tax exemption certificates. Ail federal, state any other governmental body. Either party may terminate its :j and local taxes determined by Zayo to be due on the Services. obligations under this Agreement without liability if ordered to -.' provided under this agreement shail be charged to County and . do so by the final order or' ruling of a court or oth<:Jr. ~~ be due and payable according to ihe tenils l1ereof, . governmental agency or if such order or ruling would make it ~ . . impossible for either party to <;any out its obligations under this 7.. LIMITATION OF L1ABIl.,lTY . Agreement. In addition, if ahny time during the Term of this. 7.1 Zayo shall not be liable for delays in installajion, Agreement, or any ServiceOrder, the action of a governmental. ':; agen~y requires 'modificatidn. of 12yo's Services' provided :~: i commencement or .restoration of the Service;. for any. hereunder .so as to impair Services to County, County may .~ j I temporary or permanent cessation of service; for errors, terminate tho~e Services. upon thirty (30) days' written notice to 'g i malfunctions, delays or defeicts in transmission of the selVice; . Zayo if no. commercially. and. economically reasonable. '\ '~ for loss or damage occasioned by a Force Majeure Event: accommoda1ion can be found by Zayo to effectuate the' intent J ! Zayo's liability for any and all causes and claims whether of this Agreement. " based in contract, warranty, negligence or otherwise shail in no .~ . event exceed 1) an amount equivalent to the proportionate 10. CONFIDENTIALITY charge by Zayo to County for the period of Service affecte(f, or. 2) if applicable, the replacement value of any County 10.1 . County will have no obligation' to prevent or .~ .~. equipment which is lost or damaged as a resuit of Zayo's gross withhold disclosure of any data or information supplied by i:i: negligence or willful misconduct. ZAYO, except as otherwise provided in tlie Minnesota Data ~~. Practices Act, Minnesota Statutes, Chapter .13 (the "Act"). :! 7.2 in no event shail either party be Iiab.le for any indirect, County will prevent or withhold disclosure ofTrade Secrets'in 1 incidental, .special, punitive or consequential damages accordance with the Act, .}. whatsoever arising out of or in connection with this Agreement 4 or any Service Order, including but not limited to, lost profits, 10.2 Zayo may be exposed .to government data and/or ,] lost revenues, loss of goodwill, loss of anticipated savings;.foss data . on individuals. or organizations that is private or .:~ , of data, incurred or suffered by either party or any third party, confidential. In addition, Zayo 'may be exposed to private or :* , whether in an action in' contract or tort, even if the other party confidential infonnation. relating to County's computers,. :~ or any other person has been advised of the possibility of network, programs, and. computer systems (hereinafter, 'l damages, collectively "County Information"). ZAYO is not obligated to ~~ ZAYO NO release or disclose County Information pursuant to the Act.' . g 7.3 MAKES WARRANTY. EXPRESS, Zayo agrees 'that it, and its employees, and their .~ .J IMPLIED, STATUTORY OR OTHERWISE AS TO THE subcontractors and their employees shall regard and treat ',1 DESCRIPTION, QUALITY, MERCHANTABILITY, each ilem of County Infonnation as private or confidentiaf ~.~ COMPLETENESS OR FITNESS FOR ANY PARTICULAR infonnation and that it will not, without the express written , PURPOSE OR USE OF THE SERViCE, LOCAL ACCESS OR consent of the County, redistribute, market, publish, disclose or , ,~ .ANY OTHER MATTER, EXCEPT AS SET FORTH IN THIS divulge 10 any other person, firm or entity, or use or modify for :l AGREEMENT. SUCH WARRANTIES ARE HEREBY use, directly or indirectly, <lny of the County Information except f: EXCLUDED AND DISCLAIMED.' pursuant to binding court order. At the end of the Project, Zayo ~ .~ shall return or destroy all County Infonnation to the County, t Page 3 of 19 y Rev. 911109 , " " 34 :j .. ,.. .- ;: .. " ... , r . ~ .< , .- " I 11. GOVERNING LAW reimbursement of reasonable attorneys fees, court costs, costs .~ .- of investigation and other telated expenses incurred in 'J This Agreement shall be construed and enforced in conn/iction therewith. l accordance with, and the v!!lidity and performance hereof shall 15. NO PARTNERSHIP. j be governed by the laws of the State of Minnesota. In addition, . 1his Agreem/int shall comply in all respects with the terms and ::; ., I conditions of the Grant. If the terms of the Grant conflict with This. Agreement does not create a partnership, joint "} any term herein, the term shall .be. read consistent with the venture. o'r agency relationship between layo and County. { ; Grant. The venue for all proceedings related to this Agreement Neitherparty shall have any authority to bind the other partylo :! I shall be a state or federal' court' of competent jurisdiction iri any' agreement, understanding. or other instrument, in any ~ Minnesota. mann~r whatsoever. Zayo is and shall remain an indepem;lent 'oj - . . . u..' .' ~~. '.. ~. ". :<"; "'.:~. .' - ... .. :.. .. contractor. .with respect-to ,any and llU-Serviqes. piovided undl,'lr..,. ~-.- ).~i 12. FORCE MAJEURE this. Agreement. . layo acknoWledges and agrees, on its bel1alf ~ and on behalf of its subcontractors, that it is not entitled to ~. Neither Party shall be liable for any failure of performance receive any of the benefits received by County employees .and ij hereunder due- to causes beyond its reasonable control is not eligible for workers' or unemployment compensation '1 including, but not limited to, acts of God, fire, explosion, benefits through the County. layo also acknowledges, on its ::~ vandalism, cable cut, flood, storm, or other similar catastrophe, behalf and on behalf of its subcontractors, and' agrees; that no (! any law, . order, regulation, direction, action or request of the withholding or deduction for state or federal income taxes, 1 government, or any department, agency, commission, court, F.lCA, FUTA, or otherwi~e,will be'made from the payments " or .bureau of a government, or any civil or militarY authority,. d\le layoarid !:hat it Is Zayo's sllle obligation to comply with the ~ national' .emergency, insurrection, riot, wa~, strike, lockout, or applicable provisions of all federal and state tax laws.. . 1 work stoppage (each, a "Force Majeure Evenf'). . The Party ;~ . claiming relief under this Section shall notify the other Party of 16. BINDING EFFECT :,~ the occurrence or existence ofthe Force Majeo.re Event and of This Agreement shall be binding. upon and inure to the !l the termination of such event In the event Cpmpany is un~ble '~i to deni/er SelVices as a result of a Force Majeure Event, benefit of the parties hereto and their respective successors :,; County shall riot be obligated to pay for the SelVices so and assigl)s. County shall not assign, delegate, or transfer any 1 ., i affected for as long as the Company is unable to deliver the of its rights or obligations hereunder without Zayo's p.rior :i SelVices. written. consent. However, either party. shall be allowed to -.{ 1 assign this. Agreement, in whole or in part to a parent, ";: 13. ADDITIONAL PROVISIONS ., subsidiary or affiliate whetheras a.result of a merger or a sale ., , of all or substantially all onhe stock or assets of the assigning' v ., 13.1 This Agreement (i.ncluding all SelVice Order(s). party: Each of'the undersigned hereby state that he/she has j apPeJ1dices, exhibits,' attachments and/or schedules attached full authority t6 enter into this Agreement and hereby accepts :~: .) hereto) constitutes the entire understanding between the' this Agreement on behalf of the companies idimtified below, .' ~ parties relating to the rights herein granted and the obligations . .j her!lln assumed and correctl}"sets forth the rights, duties, and 17,fII0TICES {. " .{ obligatjons of each. party to .the other as .of the date of this ::. Agreement; provided; however, that this Agreement shall not Notices under this Agreement shall be in writing and ) ) ,. affeot or niodify the terms or applicability of the Fiber delivered l:iy certified mail; return receipt requested, or by .~ Agreement or any other agreement regarding other subject nationally recognized co'Urier to the persons whose names and 'l '. " matters to which Zayo and County are parties, Any prior business addresses appear below, and such notice shall be i ) Agreements, promises, negotiations or' representations effective on the date of receipt, or refusal of delivery, by the , regarding the subject matter of this Agreement not expressly receiving Party, . '. i set forth in this ....greerhent are of no force or effect. No i alteration or variation of the terms of any provision shall be If to layo: r valid unless made In wrilin.g and sIgned by a duly authorized. .. representative of Zayo and the Comity. In.the eventthat any Zayo Bandwidth, LLC I: one or more of the provisions of this Agreement shall for any Altn: General Counsel, Legal I reason be heid to be invalid or unenforceable, the. remaining 400 Centennial Pkwy, Suite 200 [ provisions of this Agreement shall be unimpaired, and shall Louisviile CO 80027 i". remain in effect and be binding upon the parties. The SelVices provided by Zayo are subject to the condition that they' will not Biltrng Disputes: ! be used for' any unlaWful purposes. This Agreement shall I benefit and bind the successors, affiliates and assigns of the Zayo Bandwidth, LLC Parties. No courSe of dealing between the Parties and no Attn: Accounts Receivables failure. to exercise any right hereunder shall be construed as a 400 Centennial Pkwy, Suite 200 t' . waiver of any provision hereof, Louisville, CO 80027 : 14. PREVAILING PARTY Order Modifications or Cancellations: l i I n the event that suit is brought or an attorney is retained Zayo Bandwidth, LtC. : , ; by either Party to enforce the terms of this Agreement or to 7010 Snowdrift Drive I collect any money as due hereunder or to collect any money Allentown, PA 18106 damages for. breach hereof, "the prevailing Party shall be 1-800-390-6094 I entitled to recover, In addition to any other remedy, the I I i Page 4 of19 L Rev, 911/09 ! I .35 i .1 1 , ..-.. ,.'. ....- >~""""-.'-~---'. i .{ -- ~ IHo County: THEREON. ZAYO DOES NOT WARRANT AND DOES NOT :i ASSUME ANY LIABILllY FOR ANY CONSEQUENCES ~ . . For legal or Operational Notices: SUFFERED BY ANY PERSON' AS A RESULT OF OBTAINING INTERNET ACCESS INCLUDING, WITHOUT .j County of Anoka LIMITATION, DAMAGES ARISING FROM INTERNET. :~ CONTENT OR FROM COMPUTER,vIRUSES. ~ 2100 3rd Avenue ~ Anoka MN 55303 Using ZE.yo services and equipment for illegal purposes or J Attn: County Administrator ~ in support of iliega! activities is strictly prohibited, Zayo ;~ , With a copy to: County Attorney reserves the' right to cooperate with legal authorities and/or ..,..,. injured third parties in the investigation of any.suspected crime ;': ::........::-,"!:-::<-...._- .---.... For Billing: -'- . u_' -.' ':': ..:-.-.::..-;::::-,...--<.., . -"-or"civil'wrong;-.-A'Clivities,. whiGh-..are inoviolation of. any local,-.. ". -.' ... ..... state' or 'federal laws, statutes,. regulations, treaties and/or Ei tariffs, would constitute a flagrant violation of the AUP. Should -, Department of Infonnation Services ., any County activity threaten' the integrity of. or threaten' to 'l :j Anoka County ;~ adversely affect Zayo's network, Zayo shall be allowed to take :-J 2100 3rd Avenue steps to reduce or contain the damage, including temiination or ~1 Anoka MN 55303 suspel)sion of the DIA Service. Attn: Accounts Payable' 18.4 Cachin!'!, Zayo reserves the right to cache data, :j ~~ ;.~ including but not limited to advertisements, from County's' '; 18. ADDITIONAL TERMS AND CONDITIONS APPLICABLE servers to end-users which Is transported over Zayo's network, . ~ ONl.Y TO THE PURCHASE OF IP/DATA BASED In the event Zayo acts to, protect its' network integrity data, :* ,J SERVICES County agrees to co-operate'with Zayo in the caching proCess. . 'I County agrees to make reasonable changes to County .client' 'J 18,1 Utilization Forecast. and server cod" in order to allow Zayo to cache the' data. >1. County may be required to ;1 provide Zayo with' quarterly or monthly utilization forecasts. . Notwithstanding anything in this Agreement to the contrary, .1 , Failure to provide suoh forecasts or chronic under-foreCasting . . Zayo shallliave the Iighfto increase its prices as a result of the :1 may affect Zayo's network efficiency and could result in failure to adequately cache, County shall have thirty (30) days tennination of Service under one or more apP'lica~le Service from the date it receives notice of such price increase to either ., ~l Order(s) upon thirty (30) days notice in the event Zayo accept such increase .or tenninl;!te the service Order without ~ detennines in its sole discretion that its network efficiency has penally. The prices setforth in the applicable Service Order :.j been adversely.affe~ted, shall remain .in effect during such 3D-day period. Thereafter, '.1 , the new increase prices shall take effect. . .; 18.2 IP Address Allocation Policy. Zayo assigns IP ;1 18_5 Spam; Zayo prohibits the transmission, distribution. '1 <)ddresses to its County's for use with certain IP/data based ~.~ i Service, Zayo shall retain any assigned public IP add\ess or storage of unwanted or offensive content, Prohibited :l i when County's service is terminated. byo and County agree transmissions include without limitation, viruses, trojan horse ~~ I that assigned addresses are "non-portable" and other programs, messages which include character sequences ;1 providers are not allowed to route these addresses. County, intende~ to control the recipient's computer or display screen, :~ who has its own IP addresses, which are allocated directly makeo-nioney fast schemes, pyramid or chain letters, fraudulent from American Registry ~or Internet Numbers (ARIN), will be offers, threats, harassment, defamation, postings to a :g g . ported/routed by Zayo where reasonably possible. However, newsgroup in violation of itsTUles, charter or FAQ, unsolicited '.~( . Zayo cannot guarantee the portability/toutability of these advertising (whether commercial or infonnational) and ~~ addresses beyond its own backbone and to the I ntemet in unsolicited e-mail ("SPAM''); Zayo strongly opposes SPAM ,~ general, Zayo reserves the right to modify its IP Address which floods the Internet with unwanted and unsolicited e-maii f~ " allocation Policy wil\1out notice, and deteriorates the perf?nnance and availability of the Zayo ., :~ network, All forms of SPAM, and all activities .that have the ;-:; 18.3 Acceptable Use Policv. Zayo supports the free effect of faCilitating SPAM, 'are strictly prohibited. Violation of , flow of infonnation and ideas over the Internet.. Zayo does not this provision will result in termination of any applicable Service ~l actively monitor nor does ZE.yo exercise editorial control civer Attachment and/or County's entire Master Agreement. . ZE.yo !l the content of any web site, electronic mail transmission shall be allowed to take any action i! deems necessary to ~ mailing list, News Group or. other material created o~ prevent the transmission, distribution or storage of SPAM. " ., accessible over Zayo networks. However, Zayo reserves the 18.6 Traffic limitation, The' IP/based data Services i right to remove any materials, that, in Zayo's sole discretion, ar~ potentially illegal, may subject Zayo to liability, or vi91ate provided hereunder are to be used only in conjunction with ;1 thIS. Acceptable Use Policy ("AUP"). Such materials may services purchased from Zayo. Notwithstanding anyihing in :.:t. .'. include, but are not limited to, material that is inappropriate this Agreement to the contrary, no data traffic shall traverse ., , obscene (including child pornography), d.efamatory, libelous: ZE.yo's connections unless such traffic originates from or is i threatening, abusive, hateful, or excessively violent. Any destined for County end-users assigned to the service ports ~ violation of this Policy may result in the. suspension or provided under this Agreement. Traffic' not described in the J cancellation of Zayo services without liability to Zayo, prec:ding sent~nce shall be blocked from traversing Zayo's I . Channeling any part of any .such activity through Zayo's peenng connections. network resources shall constitute a violation of this Policy. ZAY.O WILL IN NO EVENT BE LIABLE OR RESPONSIBLE 18.7 Fraud and Network Security, Zayo is not'lIable for .1 FOR THE INTERNET OR ANY INFORMATION CONTAINED any damages County may incur as a result of the unauthorized use of County's network facilities, In no'event will Zayo be ;{ Page50f19 :~ . Rev. 9/1/09 'J 36 ; :'l' j ~; 1 '. ~j } .- 1 liable for protection of County's network, transmission facilities monthly basis for Outages ofthe Services provided or any pari ~ or equipment from unauthonzed access, or for any of the Services provided; for example an individual DS3 or " . . unauthonzed access to or alteration, theft or destruction of , group of DS3s. If layo~s MTTR for all protected Services is =... ., s County's data files, programs, procedure,infonn<;ltion or oth'er 'greater. than four (4) hours in two (2) out 'of the three' (3) .' network . elements or content through fri!udulent, means or preceding months not due to a Force Majeure Eyent; such ~~ devices. layo shall have the right, but not the obligation, to occurrence shall constitute an Event of Default on the part of ~ immediately deactivate 90unty's services in the event'Zayo Zayo for. the 3;ffected circuit. ., % reasonably believes suqh ,service is, the subject of theft or '~ 20. AUDIT, DISCLOSURE AND RETENTION OF RECORDS .~ fraud. . . , :( 19. SERVICE LEVEL REQUIREMENTS 20.1 Zayo agrees to make available to duly authorized' :~ , - ' ' .. ... - ".. ~.. ,..., . - - ~~. .. .. representatives of tbe County and ofth,e .state of Minnesota, fOL . " ., ',s: -,.::; 19,1 , Transoort Availabilitv. Thej~ansport$erVice(s) the purpose of audit examination' pU!'5uantto Mimi. Stat. 16B,06, ;~ being, provided will me.et, or eXG8ed 99.999% network 'any books, documents, papers, and reco'rdsof layo that are .....,.." :0;. 3: availability for protected optlcal .service, 99,99% for prl)tected pertinent to layo's provision of Services under this Agreement. 1 TDM based'servicessuch as DS3s and DS1s, and 99.9% for Zayo further agrees to maintain all such required records for 'I unprotected services as measured on a monthly basis. If 'three (3) years after receipt of flnal payment and the closing of all Network Availability is below' the percentage above in two (2) other related matters '1 out of the three (3) preceding c?lendar months not due ,to an r 1 ExCUSed outage, the same shall constitute an event of default 21. COUNTERPARTSi FACSIMILE SIGNATURES , hereunder. " ' . . Acceptance of this Agreement is' contingent' upon Ethernet Availabililv. The' ethernet Servica(s) ~: 19.2 acceptance by a representative of Zayo duly authonzed to tl being provided will meet orexceed 99..9% network availability execute this Agreement. This Agreement may be executed in fOf unprotected service and 99.95% for' protected service as , two or more counterparts, each of which shall be deemed an [j measured on a monthly basis. If Network Availability is below onginal. but.all of which together shall. constitute one and the !f >. 99~9%for unprotected. circuiis and 99.95% fot. protected same instrument.. ,This. AgreeCflent may. be. delivered by .~ , I circuits in two (2) out of t~ethree (3) preceding calendar facsimile t~ansmission and facsimile signatures shall be treated ".J months, not due to an Ex<;used' Outage, the same shal.1 ,a,s Qnginal.signatures for l?11 applIcable purppses. l constitute an event 'of default hereumier" . '., .t I ., I <.' J :19:3' Mean Time To Reoair: ' layo's Mean TIme To , . Repair' (MTTR) ,will bEifour (4) hours for protected services and f , j' eight (8) hours for unprotect~d:sei'itices ,as ; measured on a .} l 1 :j ~~ i " ;{ .;: ',' -' ~~. 1 1 "i. J .. ' .. ~. r ;< '1- 1 ~1 ;J" 1 I ! ., 1: T. " " I i I i .' l', i i !: (' Rev, 911/09 Page 6 of19, \. l' ; i 3-7 . ; I 1 1 'j .. .. _. ....~.-~-~--~-_.- - - . ~ : j ~ '. .- , , . <' .., ".. .., j IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated below ~~ i :~ ..; !; ~y OF AN~?: Zayo Bandwidth,LLi' ~ ~1 ~ /D,.. /f~ Signature: )7 ~ :.~ -'. ~",., Sig~~ture... . .. ". : .... . ~.~. ::.. . ....., .,,,,D!u)l!!~,D.,Berg,,J:;!J9!r.,,~ _......._,... _~..~, ". ,.. _~_II~e: .. P~n- .. .... . __. _,......._....:::.::_..:. "_'::_...A: -... _.-:.~-.....?S Anoka County Board of CommisSioners ~ .. __u.. -- -.;:- J /.. D" ..... ;:-; Date: I 7 I 1 'b/n-liC> 1 Date .:~ 1 , , , -~ j :1 ., ., ,~ , 4 1 ., j , , :~ ; Date i ~ I ',' ; :~ I .~ J . ::i 1 .~ ~/(1.../lqs . .~ Date .. 7! * A .j , ~l .'.! (1 ~l 1 .' ...., ~t cl. ~. ~1 + I ., i 'j , l j: , ~:: 1 i 1 :1 :'1 :f .< ., r:. ';j.. Page 7 of19 [I .;, \. . ... 38 ~'1 ~. j _1 A .t ','. j "r EXHIBIT A , " INITIAL SERVICE ORDER i To I WHOLESALE MASTER SERVICES AGREEMENT By and Between .~_ _~."':.' ",_".~"::.::",,.,".~_. :....:.._...-'_--..::. '''_..'"O"_~'~--'' - ___ ZA YOJ~A!I:IDWID.JJ:!, !.,LC ._ --, . ... .'. -::::"'-' '.-- ~ "._~-,_"".:, .' ___ ,..:.-_-or- " _.~. And - COUNTY OF ANOKA, MINNESOTA j , DATED: - ,2010 ! ; This Service Order is for the provision of transport and bandwidth capacity services~{"Services") ; for connectivity to the sites listed on Attachment 1 hereto ("Sites"), pursuant to the Wholesale Master i I Service Agreement dated ("MSA"), between Zayo Bandwidth, LLC ("ZAYO") and County ,J of J.\noka, Minnesota ('County"). This Service Order is subject to the' terms and ~onditions contained in ::$'. theMSA between the parties. ' 1 Capacity Specifications: Zayo shalf provide the SeNices to each Site in accordance with the :initlal r ->. capacity requirements set forth for each Site individually, and the shared capacity on the distribution :! ; rings, distribution laterals and core rings as set forth on Attachment 1 and Attachment 2, respectively, ; ; Core rings will bOe designed with redundancy to allow for automatic'sy.'itching with a: target switch over , '1 time of 50 milliseconds. .1 l Capacity Service Fee: ${ per month per Anchor Institution listed on Attachment 1, ,during Initial Terms - 1 i and Renewal Terms as specified in the MSA. - j -, 1 I 'Site Requirements: i County shall provide the temperature contrDI, n,!ckospace and power, f!1I as specified_ on Attachment 3. I l Seniice Term for Services: i This Service Order shall- be coterminous with the MSA. The, Services in this Service Order may be j terminated as provided in the MSA, I Change to Capacity Services: Each Anchor Institution is located Dn a distribution ring, a distribution ! ! , lateral or a core ring as specified on Attachment 1. The maximum shared capacity for all SiteS Dn each i distribution ring Dr distribution lateral is 1G, The maximum shared capacity fDr all Sites Dn each of the L , core rings is 10G. The capacity of each distribution ring, a distribution lateral or a core ring and the i' number of sites that share the capacity are described in Attachment 2. ,I i Ratification: This Service Order requested by County shall be governed by the MSA and together therewith shall fDrm a single integrated agreement between ZAYb and County (the "Agre~menf). Except : as specifically set fort~ in this Service Order, the Agreement is hereby ratified and affirmed in aU respects ,and all other terms, covenants and conditions of the Agreement shall remain unchanged and shall' j cDntinue in full force and effect. The definitiDn of "Agreemenr in the MSA is hereby amended to include i this Service Order, Attachment 1, Attachment 2 and Attachment 3, all attached hereto, are incorporated herein by reference and made a part of this S,ervice Order 0 - ; ; j I , ! , 1 ~ Page 8 of 19 j " "t 1 "i ., ,. 39 .j i -1 . . ...- ,.. .:.. . .' .' ....".~. .....;.~~ :..,~ .- ~ IN WITNESS WHEREOF and in confirmation of their consent to the terms and conditions " contained in this Service Order and intending to be legally bound hereby, ZAYO and User have executed this Service Order effective as of the date of execution by the last Party. l; ! , .-~. _., ~TY Of AN~,KA;_~,",_ .- C' _,_ .--"'_ _~ayg,~andwidtf!, ~LC~ ' ,- .. . . ~. . -=:.:...... .-~ =-' ;.~ Signature: ~./ ~ ~, ~ 1i2~_ t'; Signature " Dennis D. Berg, Chair :.1 Title:' P~. :i 'Anoka County Board of Commissioners 'J '1 ITln itO . ?;i Date: " '<{ ts/l 7/10 . - ',1 ~ ~~ ~~ Date )~ 3 ~ .- 21 " ,'J :~ j i '1 I .:'( ~ \!.j ! ~ , t; .) :~ ~~Form: : . .~ '. .&~ :::2 .~ , Assistant Anoka County Attorney ( :! '~ll r11ct> ~l -, ~t Date' ~ M:. ,. " '. \1 ;:~ " :~.i '\ .j 1 " ,. :~: <. J :'~ ;~ ) ,~ . . ;~ ;~ ~1 :} .~, ~i': Pag~ 9 of 19 ;~' .) j J 40 A :{ ~. .. ~ ! . :' ',' , EXHIBIT A--ATTACHMENT 1 ; S~UM ! , t ~:;:::l::sj::t!;:s~r:a:=ll)::i1~'S:=:i::5"" ::;.:",,~:;;:;:..,':i;:;;::2.c:I :;=",.nm.>::a; : a888l!Jg8C)c:r~~8gl.:18g~ 8~88~'?888l!J 8~~to~8 . _ "_"."~ ". _ ".. .:_~ :~,"" ~ ~ ~ I'l ".._':"" ~ - ~ ~ ..~"~ ~ n ~__ " ~,~ ..':",~" :,,: ,,",. '2 _' .'''' ,.1 t!i '" "" ,,'" " "''' " " "",."" "''' " "" " """ """ "'"",.:; '" ., ".. ^' l'll'p\ilil II ~l'lt\l'l "13 t'lilil l'l l'll'll'J l'l gl'J:'l ~::i ~ t'l il il ~ tl Ii .~ ~ ~ ij ~ ~ ~ :;: ~ ~.'~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ .J, -~ ~ ;~ ~ g .~.:i ~ rh :;! ~ ~ ...::iIsmmr:a1:e .... mre. i:ti ... 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[; ~ .: ~: , EXHIBIT A-ATTACHMENT 2 ~ :i ~. ~~ , ',-- - _. . -MAXIMUM SHARED:,CAPACFlYPERFtNAI::-COR€-RING: ' ; .~.-- . -... .. .. .~ .-'; :...... - -..:...~_.. -:-1 --- . . - . . ~. FINAL'DISTRIBUTION RING/I-A TERAL', . i:: "j '0 .. - ,-- - - - - , ~ . Cor~ Rillg- - '.' - :~ Distribution ,<, RinglJ,;ateral ~harect Capa.;;ity _ 'lSites ~~ , ~ Anoka I Zavo POP . N/A 1 CR1 10G 7 f~ ..; ~ CR2 10G 17 CR3 ,10G 15. ;l t~ CR1-H1 1G 5 ~ GR1-H2 1G 8 ~ CR1-H3 1G 8 '~ i CR1-H4 1G 4 :~ i CR1-H5 1G 7 i CR2-H1 1(j 7 :~ CR2-H2 1G, 2 ~;{ CR2-H3 1G 7 ;~. ,'j ;~ I CR2-H4 . 1G. 3 ~~ " CR2-H5 1G 9 .~ '~ CR2-J,; 1 . ;1 I 1G 4 ~ I CR2-L2 1G' 1 '} J CR2-L3 1G 3 .~ CR2-L5 1G 1 '1 ,.\ ~: CR2-J,;6 1G 3 ~1: Fl.'. CR2-L7 1G 3 ~~ ~~: CR3-H1 1G 3 rt: eR3-H2 ' 1G 5 ] CR3-H3 1G 3 ~1' CR3-L1 1G 3 i CR3-L2 1G .4 . . ~ . CR3-L4 1G 4 '", .:J::' CR3-L5' 1G 1 !~ :?, CR3-L6 1G ~.<-: 1 " CR3-L 7 [~ 1G 2 :0 ~~1 CR3-L8 1G 0 " ~J. - . , ; N E. ',S't N/A .' ~ - : ' '. - TOTAL SERVICE SITE_: ;~ - COUNT. 145~ ~i .. ~ .' .. . - '. .... . '-~ :.. ~ .:. .": '.' 'it..: , ' ."... Page 15 of 19 f ~L .~l ~ 4~ 'i ~.~ ,I ~ ' ~ : , , . . -,: . EXHIBIT A--ATTACHMENT 3 " SITE SPECIFICATIONS Environmental: , - Equipment to be located in a space that is clean, dry and secure ,-, <-,-~.,,,-,.,q,,,_. ~-,., '.' , -;---Spaceshould D'e~qohtlit!oned by-heating-and-coolihffequipmentand' ." _. ".,-,-- . . ....-..,.:".'-,. - -;..~ maintain constant temperature in the range of 68 to 83 degrees . '~. l Fahrenheit, humidity 40 - 60% i Network Equipment~ack: ....., '1 .\ - Provide 19IX72" standardsteelotalumilium telecom relay rack with EIA J . ' hole spacing. - Rack should be securely fastened to the floor using anchors appropriate A for the flooring type 1 - Install should provide a miniinl,lm of 36" clearance in front and behind ~~ relay rack for equipment installation and 'servicing , . 1 ~~; - Depending on ~pace availability, County may request Zayo to prp.vide an :;j ! exception to one or more of these network equipment rack ,specification~ 1 for certain locations. . - . i Grounding: ' . .' .~ 1 d. I - Relay rack should be earth gro'Unde<:i utilizing building steel, cold water -.' , , pipe or connection to existing ground bar J Power: ., ;s - A negative 48 Volt DC power, system with apPfopri?lte power bac~up to be '1 i provided and siz~d in accordance with the net,work equipment ~ I . requirements listed below. Each element will require anA and B feed. A :~ '.' I and B feed can be provided from a single rectifier and distribution source. ;j _, BatterY and/or generator backl,lp time should be 'a minimum of 8 hours and "t ",i based on the circuit provided to each network element. A t;md B feeds " " , should be counted as a single, redundant circuit (Example: 40 aJ11p A :~ feed and 40 amp B feed equals 40 amps of total load) .:] " .1 Network Equipment Requirements: ;t Cisco' 1 series: ~. Dimensions :{- - Height: 33.3 in. (82.3 em) j '.i - Width: 17.2 in. (42.5 em) '" ".( - Depth: 18.1 in.' (44.7 em) 1 Power: _ 40 A per DC input@ -48 VDC input voltage (total of.4 ~ , inputs) per power supply (2 power supplies required per ~~ router). .' - .,,,' :1 Cisco 4900: -, Dimensions ~ - 2RU , , Power:. ':1 Page 16 0[19 " 1 , 47 ! ; 1 . ... .-..-. ---~--) ..- -.. .. -.-.,.... - ~~ ~ ~ _.~_.....,'..-_-:..~.. , r ! ~ / ~ j .. ~ i ~ 'J - ~ , - 30A perDC input @ -48 VDC input voltage (total of 2 inputs ~ ; per router) , , ;: - DC input operating raoge:-48to -60 VDC :j . . .~ Cisco 3400E: :j .... ,....... _., <:,,:o;~' .._-'.,-"':_~' _".._~Q.im~$l9[lJ?: . -: .';;.". . '-.:.., '". - . .,..,;...;=-. ..... - .~...,- . -'- - '-=--:::' ~.-- ..:...:':;-..... ~. - :: ....- . -"' -_. .- 1RU ~ . oj Power: 'j - 5A per DC input@ -48 VDC input voltage (total of 2 inputs :~ per router) ~ , :..~ , - (For the 3400E sites, if AC only is available, Zayo needs to :~ ~1 qe notified in advance of the AC sites, and for the AC sites, ~g a UPSde.dicated to the switch, wit~ at least 700VAcapacity " ~~ " is required.) ~ ;j Note: To the extent that any Site does not meetone or more ofthespecifications ?j ~~ above, any disruptions in Services related to, the inability to meet such 'j , .' . "'0; , specification shall be deemed to be an Excused Outage for purposes of Septiori ,~ .19oftheMSA, ' " i~ ;~ :-<t ;:j. :~ ;~1 .. ..... :1 . ., J , . i ::,1 . ;:{ .* ! .~ ~ ".f :~ * ;... '.' ,~. ;;; :~: ~ .;% :~ J :~ " ~:: " . ~(" j ~~. .'. ,1 ,'1 ~ ~~ ~: :>:.. Page 17 of19 w- ~~ 4:8 '~ ~i . ~ f:"~ , 1'; ?f ;1 ",1 EXHIBIT B ! i EXAMPLE SERVICE ORDER FORM " Page h.:!. , ! i ~'';:-'_'''~_'' '-.~._".r .n~.~: '-,.. ".~. ---" .~. j - j '1 j j 'l 1 st."" 'A>f~~~-"'"''~''''''''~-rBii~'~~~--''L''''1<''~''' ' '. ".. "t '"~. ~~ld~~~~~~"'~fJ~ .&i i~~~:i.;J~~~:~~~i1J~~il9~1~::~;~~,'~~:'i\~J~~;;i~\~.i~~~t;f~~~~~~4-~1f~~~i~$~:i' "). , ., i .', .~. :I. t '1 '1 3 I 1ii>i!!;-'~" t"N"'-'''''''''''-''''(~$.~~'#~-~~'''-''''''''''''''l~i'i;t~J!iI''''~~~:"~~"'''<''''JlI'''' " ~; . j 1 " ~ :"1 J I ~'fj~iI'w~":"~~~""iiiiJiIi~~~\"1;;"a'''''?'~~~.~'';"''~~''.'!'',,(I''1\i!iCtx .i .~ WI~~~~~~~~~w;,~.~{,~~~,;"~~~a~~~[;i~~ll1 J ~1'!)~~""~~~"",<;,.Ii!~~~f,'~"i~"''l,j,'..iR~;~),,E!:;.!j~~;t,9.t,,,!~'<@.-~ ",,' ,~~Jl)'it:~;".;i:, .1 I ., . ~~11t'~"'""-"""'''''''" .,~ '''..'''.....''{~''"''~.,.,,''''''''''_-_..__.. '''5;,*'''li<-'' .,""'. "{~r'" '_'~~'fr.:~. ",'- ....,... "',';-':;'jl;" '''''i'fl" ~""/":.'''''1k''"''''' ......'...1i, ......... "-r' .. '!i ~l;"':-'S:w.a-~ :;.... ~:.:J1 ;;" . . M'. ,..it :'..:.....:~/ ,.'~ .'~!.. . ..... i.: ~.._\:~~.....l"!....r. .:'.:.' 'f:~' . . .. '. L<: .';~ ':-: j'M :"... .;;,s .~.,"'!,.:::.;... ;0." ..';,~:;;-.; ! ~M~,;>,;"~,'.. t~""'?,;""~~,..:r,~'""""'~~'i'~'.'" ,ri!~", ,.'h:a~;~'r~~"~"Jif~l;ii',",j;; .~ .'J~I~;t~~Ei~~.I'~i~.~~~t.1i.I. i . ~{f~';;?,tr' !"$',f.\";:'''\~~t4/~'l";'t~ilT~';'''.j''';'Ve?~"!''''='1J.!:.<;f"''i~$~~:i';~!fg,)1~~~uL~~~f.l1i'' 1 .., ,~rl~l!fI~r~IJi_*l~f~~~~iiiA'\i..'~:~~"~iJ~l~ifi .~ '1 " ';i' h~.,: '. ~ J , ;~ } :~. '. " , ;l ~ .~ .:j i ;1 " ., 1 .1 J 1 ; j .. Page 1ilof19 .f f 49 '..,., ...~.__._.-'._'~.~':.'~,'~'-'. :'.:..::..-.:'; i ! /! , , ~ ; ; / ~ f '" ~ ~ ;. I .; i If'.1<1f2 , .~ ! , :~ ;~ ;~ '1 :1 " '.f,;>' ;, '...,' , ,-', "~ Ii & ~ ~J ~ ~ ~ ;-"j fl , :~ ; ~ ,l ;1 ~ :~ :1 ; 3 ;\ "l 1, i j, 1 .1 , l , J j j, ~1 ~ I .1 ,j .~ '1. ::F ({~ " " ;\ ~l .;:, ... :% J. 1 1 :{' A :~ :a'~ ."., r l ~{ : I 1 j ) i ,~ , .:L :,,1' Page 190f19 ~r , .'f ., " 1 ,,_50 :j ; 1- :! . {i."r~ Ii,i ~tA ' , '/ ":1/=:2--0 to ~ 0230 .. .. ., , \ ATTACHMENT H MASTER FffiER IRU AGREEMENT By and Between , ZAYO BANDWIDTH, LLC and ANO~ COUNTY, MINNESOTA DATED: AUGUST fl, 2~10 . " 51 I ! .. .. i ., I i i < MASTER FIBER mu AGREEMENT I THIS MASTER FIBER IRU AGREEMENT is made and entered into as of August -' , 2010, ("Effective Date") by and between, Zayo Bandwidth, LLC, a Delaware limited liability , company ("ZA YO"), and Anoka County, Minnesota, a body corporate and politic under the laws I . of the State of Minnesota ("County"). I " ! WHEREAS, ZA YO will construct and own a fiber optic communication system which will include tlJ.e County Dark Fibers (as defined below); and i i WHEREAS, County desires to obtain from ZA YO, and ZA YO desires to provide to County" the right to use the County Dark Fibers and to receive certain maintenance services as described herein, all upon and subject to the terms ai1d conditions contained in this Agreement. NOW, THEREFORE, in cQusideration of the premises and mutual promises and i covenants contained herein, and for other good and valuable consideration, the receipt and i sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: i , I 1. Definitions. ,1.1 ~ addition to the terms defined elsewhere in this Agreement, the following capitalized terms ang derivatives thereof shall have the meailings respectively as,cribed to thern 1 in this Section 1.1. "Acceptance :pate" is defined in Section 7.2. ,., I "Acceptance Specifications" is defined in Section 7.1. "Affiliate" shall mean, with respect to any Person, any other Person, who directly or , indirectly controls, is controlled by, or is lUlder common,control with that Person. As used in 'this defipition, "cohtrol" means the possession, directly or indirectly, ofthe power to direct or cause the direction of the management 'or policies 'of a Person; whyther by way of equity ownership, contract or otherwise. "Agreement" shall mean this Master Fiber IRU Agreement as amended, supplemented or , modified fi:om time to time. I i "Cable" shall mean fiber optic cable, the fiber optic strands contained therein (including ;i the County Dark Fibers), and any other communications transmission media which may be ' included in the ZA YO System, and associated splicing connections and splice boxes located in I the iA YO System.' . i ! I "Claims" is defined in Section 13.1. "Confidential Information" shal~ mean, subject to Section is.l(d); any data or , information that is of value to a Party and is not generally known to competitors of such Party. I 2 ,I ., I Anoka, County Master Fiber IRU 8.14.10 52 .. . I I ! I .l'l~ -, To the extent consistent with the foregoing and subject to public disclosure laws applicable to i County, Confidential Information includes information that (i) co~cems the operations, faoilities, plans, affairs and businesses of a Party, the financial affairs of a Party, and the relations of a ! , party with its customers, 'employees and service providers, or (ii) is marked confidential, I I restricted, proprietary or with a similar designation or (iii) is by its nature clearly recognizable as confidential information to a reasonably prudent person with knowledge of the ' Disclosing I- Party's business ,and industry. Confidential Information also includes any information which a ! party obtains from a third Person which such Person treats. as proprietary or designates as i ; confidential information, whether or not owned or developed by such Person, \ I . ' i "Construction Services" is defined in Section 9; "Contribution" is defined in Section 4.1. "Costs" shall mean all actual costs paid or payable by ZA YO in accordance with the establish~d accounting procedures generally used by ZA YO, which ZA YO' utilizes in billing I third parties for reimbursable projects, including the following: (i) internal labor costs (including I I " wages, salaries and benefits) and reasonable overhead allocabie to such .labor costs, such I overhead costs not to exceed to fifteen percent (15%), and (ii) all other costs and expenses paid or payable on a pass-thiough basis (e.g" equipment, materials, supplies, contract services, etc.). , i "County Dark Fibers" is defined in Section 2.2. I I ! "County Equipment" shall mean any optronic, electronic, optical, or powe~ equipment, i I Connty Media and any other facilities, material or equipment owned, possessed or utilized by I County, or any other Person in connection with the operation ~f the County Dark Fibers. I ,. "County Maintenance Fee" is defined in Section 4.5. I I . "County Media" shall mean County's fiber optic cable, fiber optic strands 'or any other I transmission media owned, IRU-ed or controlled by County on the Premises Side. of tb,e I Demarcation Point I I "County Route" is the route of the County Dark Fibers particularly described or depicted i . or in a Service Order along which the County Dark Fibers are or will be 10cate<:l. "Dark Fiber IRU" or "IRU" is defined in Section 2.2, . . "Demarcation Point" shall mean a boundary point at the splice 'point or patch point, j , located at the end of the County Dark Fibers where County Media is joined to the County Dark I Fibers. The side of the Demarcation Point where the ZAYO System including the County Dark ! Fibers, is located shall be called the ''Network Side." The other side of the Demarcation Point, shall be called the "Premises Side." I "Disconnect,Notice" shall mean a written notice from ZA YO to County notifying County of the date on or after which ZA YO may discOlUleqt County's Dark Fiber. "Dollars" or "$" shall mean U.S, Dollars. 3 Anoka County Master Fiber JRU 8,14.10 ,., 53h [ I '.' , I <, ! 1 I "Duct" shall rneari a single, enClosed HDPE tube an,d space within that ~be, including I any innerducts, used to enclose and carry Cable. "Estimated Route Miles" shall mean the Parties' best estimate of total linear miles for the I County Route, as set forth in a Service Order. I "Events of Foice Majeure" ,is defmed in Section 21.1. I , "Facility Owner" shall mean any entity (other than ZAYO): (a) owning any portion of I I the ZA YO System or any property or security interest therein, or (b) .leasing to ZA YO, or I I providing an indefeasible right of use ("IRU") or similar interest to ZA YO in, any portion of the I I ZA YO System, . ' ; , , "Fiber Acceptance Testing" is defined in Section 7.1. I "Fiber Miles" means t1i~ number of fiber optic strands in the County Route o~ the System " Route, as the case may be, rnultiplied by the total number of miles in such route. I "Governmental Authorities" shall mean any federal, state, or local (which includes city, county, municipal and regional) government, or tribal govertunent 'or any public or quasi-public, authority. "Grant" is defined in ~ectiotl 2.1. I "Handhole" shall mean a ,structure similar in function to a Manhole, but which is too small for personnel to enter, As used in this Agreement, the teml "Handhole" refers only to . I handhole structures owned by ZA YO and located on the System Route and does not includy I Cable or other telecommunications equipment or facilities of ZA YO or any other Person located i I within such handhole structures. I I ! "Impositions" shall mean all taxes, fees, assessments, franchise fees .or charges, license fees or cha'rges, right-of-way fees or charges, encroachment fees or charges, ad valorem taxes, .. real or personal property taxes, gross receipts taxes, universal service fund aSsessments, excise taxes, regulatory 'fees or assessrnents, license or permit fees, and any other levies, imposts, I duties, charges, surcharges or withholdings of any nature, ~gether with ariy penalties, fines or , interest thereon, arising out of the transactions contemplated by this Agreement or imposed, I ; assesse<i or levied upon the ZA YO System, or any part thereof, or upon the County Dark Fibers, I ! the County Equipment or any other property or faciliti~ of County, or any part thereof, by any , , Governmental Authority i I ; d ~'Initia Service Order'~ is defined in Section 4.1. ] ! "Initial Term" is defined in Section 5.1. i "Interest Rate" shall mean the lower of (i) the highest rate permitted by law, or (ii) one i I and one-half percent (1.5%) per rnonth, compounded monthly. ! i i ,I 4' 1 Anoka County Master Fiber IRU 8.14.10 -, ' 54 ,,' "IRU Charge'~ is defined in Section 4.2. I ' "Lateral Connection"'shall mean one or more Cables, or Duct(s) owned by ZAYO or a third Person that contain County Dark Fibers within the ZA YO, System. I '''Manhole'' shall mean a below ground level enclosure entered through a hole on the " ! surface covered With a cast iron, cast aluminmn, steel or c<?ncrete manhole cover, which I personnel may enter and use for the purpl?se of installing, operating and maintaining facilities 1 , associated with a fiber optic communications system. As used in this Agreement, the term , "Manhole" refers only to manhole structures owned by ZA YO and located on the System RO'!:\te and "does not include Cable or other telecommunications equipment and facilities of ZA YO or any. other Person located within such manhole structures. "MSA" is defined in Section 2.1. .. ! "Notice of Completion" shall have the'definition set forth in Section 7.1. ! . I "Party" shall mean each of ZA YO and County and "Parties" shall mean ZA YO and i County. I "Permits" mean each of and collectively, all laws, statutes, codes, orderS, rules, I regulations grants, authorizations, consents, approvals, permits, licenses and any other ! authorizations. other than Underlying Rights, of third Persons with respect to (i) the I construction, installation, repair, maintenance, operation or use oftangible or intangible property, I as the case may be, (ii) the provision of a service or performance of an .act or (iii) any I requirement by a goveriunental authorIty for the engagement in a, business or enterprise, to the I I extent any of (i), (ii) or (iii) foregojng are applicable to the' performance <?f obligations or exercise of rights by either Party under this Agreement. I ! i : "Permitted Use" is defined in Sectio~ 2.3. 'j ! I "Person" shall mean any individual, corporation, partnership, limited liability company, I jo~t venture, association, joint-stock company, trust, unincorporated organization, government I or any agency or political subdivision thereof or any other entity; I "Point-to-Point" shall mean a contiguous assembly of the ZAYO System that starts and i ends at different locations as generally identified in each individual Service Order, as applicable. I , ; "Pro Rata" shall mean such proportionate share beh.1g measured as the number of County Dark Fibers relative to the total number of fibers on a Segment. ." j "Project'.' is defined in Section 2.1. "Renewal Term" is defined in Section 5,1. "Ring" shall mean a contiguous assembly of the ZA YO System that starts and ends at the same location as generally identified in e,ach individual Service. Order, as applicable. 5 Anoka County Master Fiber lRU 8.14.10 \ 55 i " ! i I "Route Miles" shall mean, with respect to each Service Order, the number oOinear route I I miles (to the nearest thousandth of a mile) as constructed. I "Routine Maintenance" is defined in Section 10.l(a), i I "Segment" shall'mean one of the discrete segments, spans or portions of a Ring, Lateral J I I Connection, or any portion of the Zayo System, as generally identified in each individual Service Order, as applicable. "l i ' "Service Affecting Condition" shall mean any damage to or failure of the ZA YO System I that interrupts CQunty's ability to transmit light through the County Dark Fibers. A Service i \ I Affecting Condition begins when ZA YO is notified or becomes aware' <;>f an interruption, I ! whichever first occurs, A Service Affecting Condition continues until the interrupted Cou1?-ty ; Dark Fibers are restored to the specifications attached. hereto as Exhibit E, and are again i available to County. ., ! \ .! i "Service Order" is defined in Section 3.l. ;.I "Service Term" is defined in Section 5.2. i I. "System Route" shall mean actual route of the ZA YO System as generally identified in each individual Service Order. , i "Term" is defined in Section 5.1. I ! "Termination Charge" shall mean one hundred percent (100%) of the IRU Charges remaining for the' then applicable Term, plus any and all installation charges, reasonable ! construction costs or oth~r charges or costs which have been incurred by Zayo in providing i Customer with County Dark Fibers, i "Underlying Rights" shall mean all deeds, IRUs, easements, rights-of-way agreernents, I licenses, franchises, grants, contracts and other rights, titles and, interests to 1;lse real property of ! any third Person, which are necessary for the construction, placement, location, installation, .1 operation, use, IRU, rental, maintenance, repair or replacement by ZA YO or County, as the case "! I '. may be, of the ZA YO System, Ducts, County Equipment, Cable ,or County Dark Fibers. :1 ! "ZA YO System" shall mem any cornbination of an integrated multi-Cable, multi-ring i fiber optic communication system comprised of Cable and Ducts, Lateral Connections, and the , Manholes and Handholes located therein. As used in this Agreement, the term "ZA YO System" ! I refers only to the multi-Cable, multi-ring fiber optic communication system owned, IRU-ed or i ! controlled by ZA YO and does not include any communications equipment, ~lectronics, optronics ! ., or, other facilities of ZA YO or any other Person located within ~e ZA YO System. " "j i I 2. Grant of Rights in the ZA YO Svstem, ' i I , , , 2.1 Grant Award: Conditions. Zayo has applied for and received an NTIA grant f ("Grant"). The Grant will be used' in part to construct and install fiber optic facilities ll;1ld i I 6 Anoka County Master Fiber IRU 8.14.10 ; ... . ,56, ",' , . .', . equipment to connect County's government, educational and public safety locations within Anoka County, Minnesota as detailed in the Initial Service Order (the "Project"), The Project is estimated to cost approximately $19.12 millipn dollars. The Grant award will contribute seventy percent (70%) of the Project costs. Pursuant to Section 4.1, County shall make a Contribution to , the Project cost. The Parties expressly acknowledge that receipt of the full Grant award is a i condition precedent to the enforceability and validity of obligations under this Agreement. In the I , event that the Grant is terminated for any reason before completion of the Project, both Parties I i I .1 i shall be excused from perfonnance under this Agreement, without any further liability :! ! hereunder. Further, as a second condition precedent to the enforceability and validity of obligations under this Agreement, Zayo and County shall enter into and execute that certain Wholesale Master Service Agreement ("MSA") executed of even date herewith between the Parties, whereby County shall receive certain lit services from Zayo as provider thereunder. 2.2 , Ril!hts. The rights granted by ZAYO in the County Dark Fibers constitute an indefeasibly right of use. As of the Acceptance Date for the County Dark Fibers in each Service Order, ZA YO grants to County (a) the right to use'the number of fiber optic strands of the Cable I set forth in each Service Order, which fibers will be specifically identified by ZA YO in the ,ZA YO Systern (the "County Dark Fibers"), and (b) the associated and nonexclusive limited right to use the ZA YO Underlying Rights, all such rights upon and subject to ~e terms and conditions set forth in this, Agreement (collectively, the "Dark Fiber IRU" or "IRU"). . ~,3 Use of County Dark Fibers. Except as expressly set forth herein, the Dark Fiber IRU does not include the right of County to own, control, maintain, modify or revise the COU)lty Dark Fibers, the right of physical access to the ZA YO System, the right to encumber the ZA YO , System hi any manner, or the right to use the ZA YO System. The County Dark Fibers may only , be used by ,the County to serve quasi-government, government, education or public safety institutions, provided that such use shall not directly or indirectly compete with Zayo ("J?ermitted Use"). 2.4 Interest Granted Herein. Neither this, Agreement nor the Dark Fiber IRU granted hereby' conveys any form or type .of title in any real or personal property, including the I ZA YO System, any Ring, any Segment, the Gonnty Dark Fibers or any portion of any ,of the foregoing. The IRU contained in this Agreem~nt does not include any equipment used to transmit capacity over or to "light" the County Dark Fibers. ,The Parties intend that this Agreement constitutes a true IRU of the County Dark Fibers and not a sale of the County Dark Fillers. ' 2.5 Ownership and Title. During the TeITll, legal title to and sole ownership of the I Cc:iimtyDark Fibers, Duct, the Cable, the Manholes, the Handholes, Lateral Connections and any property installed or conStructed on any Segment and/or Ring, shall be retained and held by ) ZAYO, or other Facility Owner(s). County's rights hereunder shall be deemed an IRU, subject 'I to the terms of this Agreement. Neither the IRU, rental or other provisioning of the County Dark' Fibers or any other facilities or services by ZA YO to County, nor the payment by County of the j IRU Charge or other charges therefore to ZA YO shall 90nstitute, create or vest ,in County any I easement, license or any ownership interest or real property right or interest whatsoever in the . I Connty Dark Fibers, Duct, Cable, Manholes, Handholes, Lateral Connections or other facilities. , i ! "3. The ZAYO System 7. Anoka County Master Fiber IRU 8,14.10 57 " , 3.1 Reauest for Service Order. County has requested certain services and ZA YO has agreed to provide such requested services as documented in the Initial Service Order. From time to time, County may request additional services from ZA YO. If ZA YO accepts sucl1 a request, the Parties will execute a service order, substantially in the form of Exbibit B attached hereto and made a part hereof (a "Service Order.') setting forth, without limitation, the number of . County Dark Fibers, the County Route, the Dema:rcation Points, the System Route, the IRU Charge and, all fees and any other relevant terms agreed upon by the Parties. As used in this ! Agreement, references to "Service Order'; shall include the Initial Service Order.. Upon execution by ZA YO and Connty, each new Service Order is automatically incorporated into and subject to the terms of this Agreement. I;n. the event of any conflict or inconsistency between the terms and conditions of a Service Order and the terms and conditions of this Agreement, the Service Order shall control. 3.2 ~. The ZA YO System generally will follow the route and will connect the ,County Route all generally identified in each individual Service Order. ZA YO shall use commercially reasonable efforts to deliver to County the County Dark Fibers fot each Service Order as soon as practicable, but in no event shall the Initial Service Order be delivered any later than is mandated by the Grant guidelines. 3.3 Route Selection. The specific route and location of each Segment, Ring and Lateral Gonnection of the ZA YO System, including the specific location of Manholes and Handholes, is subject to ZA YO's absolute discretion. ZA YO shall ta).ce into con~ideration any of 'County's input, interest and concerns with respect to material changes in the route design of the . Initial Service Order. At the end of each Lateral Connection and/or Point-to-Point, as applicable, : . ZA YO wUI terminate the County Dark Fibers at a fiber distri'\mtion panel, fiber splice kit or other appropriate terminal apparatus as detern1ined by ZA YO and specified in ihe applicable Service Order. ,3.4 Route from Facilitv Owner. Notwithstanding anything to the contrary contained in this Agreement, if applicable, ZAYO mily elect to acquire any portion of the ZAYO System frorn Facility Owner(s) (whether by IRU, sub-IRU, indefeasible right of use or otherwise) in lieu ; of constructing and installing the ZA YO System with respect to such portion. I 3.5 Subcontracting. Notwithstanding anything to the contrary contained in this Agreement, ZA YO may assign or subcontract to a third Person any or all of ZA YO's duties or 'obligations to County under this Agreement (including ZAYO's duties or obligations under Sections 6,7,9 and 10 herein), provided that ZA YO shall rernain obligated to County under the terms of this Agreement for any such duties. ZA YO will endeavor to utilize subcontractors based in Anoka County, Minnesota. I 4. Payment . 4.1 C,onsideration for Dark Fiber mu for Initial Service Order. County shall contribute a total of fifteen percent (15%) of the total Project cost, such contribution amount aggregating up to $2,867,698 ("Contribution") pursuant to Section 4.2, and in consideration of ; such Contribution, County shall receive the County D~ Fibers identified in the attached Exhibit A ("Initial Service Order"). 8 Anoka County Master Fiber IRU 8.14,10 58 I 4.2 Consideration for Service Orders. Except for the Initial Service Order, a' Service Order shall specifY any IRU Charges due thereunder. "IRU Charge'" shall mean the I Contribution, any recurring charges, non-recurring charges, together with the County ! Maintenance Fee. Any Lateral Connections requested by County not contained in the Initial I Service Order shall be memorialized in a separate Service Order and shall include any IRU Charges for the requested Lateral Connections. ; I I Pursuant to Grant guidelines, anytime ZA YO ., I 4.3 . Payment of Contribution. ., ! requests any portion of the Grant funds to be released, ZA YO shall send County an invoice for its proportionate share 'of such draw. Colinty shall pay the requested portion'ofits Contribution within fifteen (15) days 'of the invoice date. For examp~e, if ZA YO wants to make a total draw of $100,000 for Project construction, ZA YO requests 'a seventy percent (70%) contribution, or ,$70,000, from the Grant and invoices Connty for its proportionate share of fifteen percent (15%), or $15,000. Subject to Section 19(a), failure to rnake any Contribution when due shall constitute ; a rnaterial breach of this Agreement and the MsA and sl1all entitle ZA Yf) to all remedies it may ,I have pursuant to this Agreement, the MSA or at law or in equity. I 4.4 Payment of Recurring Charges. If a recurring charge, inclusive of the County i Maintenance Fee, is specified in a Service Order, ZA YO will invoice County in advance of each I I period (but not more than thirty (30) days in advance) for the recurring charge and Connty will pay the recurring charge within thirty (30) days of the invoice date. Unless otherwise provided in the Service Order, ZA YO will begin to invoice the recurring charge on the Acceptance Date. Invoices for partial months will be prorated. . I 4.5 Charges for Routine Maintenance. .If County routine maintenance fees are included in the respective Service Order, County agrees to pay ZA YO for such Routine I Maintenance throughout the Term as identified in such individual Service Order (the "County Maintenance Fee"), The County Maintenance Fee shall be adjusted annllally effective December j 31st of each year to reflect the CPI Adjustment, .not to exceed three percent (3%) since the ., Acceptance Date, provided that in no event shall the amount be less t1fan that for the preceding I ~ ! year. Within thirty (30) days after the Acceptance Date of each Segment, ZA YO shall send an 'I invoice for the first monthly County Maintenance Fee for such Segment prorated to cover only I the remaining portion of the then current month. .! 4.6 Late Payment. If County fails to make any payment under this Agreement when ., 'due, then, in addition to such sum and to any other rights and remedies that ZA YO may have, I County shall pay interest on such ,unpaid amount at the Interest Rate. NotWithstanding the I foregoing, no interest shall accrue on any payment that is disputed in good faith by County while ! such dispute is pending, If such dispute is later resolved in favor of ZA YO, such amount shall bem:.~nterest frorn the date when due until paid at the Interest Rate. I Miscellaneous Pavmlmts. j 4.7 In a~dition to the amounts payable under each , respective Service Order, Connty shall be responsible to pay directly or reimburse ZAYO, as I I requested by ZAYO, for all other sums, costs, fees 'and expenses that are required to be paid i I under this Agreement. Except for the IRU Charge (which is payable as specified above), ZA YO \Vi.1l invoice County for all sums, costs, fees and expenses owed by County to ZA YO, and I County shall pay such invoices within thirty (30) days of the invoice date. ZA YO reserves the I I I 9 ., ! Anoka County Master Fiber lRU 8,14,10 59 ; ., i " I i ,right to direct payment of the . IRU Charge, and any other fees or charges to ZA YO or to any , I i ' other party. i i 4.8 No Deduction; All payments made by County nnder this Section 4 shall be made ! without any deduction, offset or withholding. If Connty has a dispute as to any amounts due 1 hereunder, including IRU Charges, County must provide written notice to ZA YO specifically i identifying all disputedIRU Charges within forty-five (45) days after the date of the affected i 'I invoice or else the County waives the dispute. If pursuant to an investigation into the disputed ! . amounts ZAYO determines that the County did not owe such amounts, ZA YO shall refund the i same within thirty (30) days of determination. I I i 5. Term and Renewal , 5.1 Term of Agreement. The term of this Agreernent will commence upon the Effective Date and subject to Sections 11, 19 and 20 will terminate twenty (20) years from the .i Effective Date unless earlier terminated in accordance with this Agreement (the "Initial Term"). ..' Notwithstanding the above, unless County provides Zayo with sixty (60) days' written notice ; prior to the end of the Initial Term, or the then current Renewal Term, this Agreement shall automatically renew for twenty (20) consecutive five (5) year periods (''Renewal Term(s)" and collectively with Initial Term; the "Term"). The Term shall be subject to the useful life of the I County Dark Fibers. If the County Dark Fiber naturally deteJjorates and becomes unable to be used for its intended purpose of transport services, ZA YO shall have no obligation to replace the County Dark Fibers in such instance. In such instance, ZA YO shall notify County and ZA YO may elect to terminate this Agreement. . i Service Order Term. Each Service Order placed under this Agreement shall 5;2 I terminate on the earlier of (i) the expiration or termination of the Service Order, or (ii) the termination or expiration of this Agreement ("Service Term"). In no event will new Service I 'Orders under this Agreement be penmtted if the Agreement has expired or been termhiated, The I Dark Fiber IRU and Service Term for County Dark Fibers shall commence on the relevant ; Acceptance Date for the County Dark Fibers described in the Service Order, and shall extend for I the Term. 6. Construction of the ZA YO System -I " 6.1 Areas of ReslJonsibilitv. ZA YO shall have full and complete control and i responsibility for determining any routing configunitions of the ZA YO System and the 10eation and configurations of all Lateral Connections, Manholes and Handholes. County shall have the right, upon written request, to inspect the installation, splicing and testing of the County Dark I Fibers; provided that Coun~ shall not enter a Manhole or access a Handhole. County shall have 1 full and complete control and, sole responsibility for selecting, purchasing and installing all County Equipment, for determining Gounty network and service configurations or designs, for regrooming, rearrangement or consolidation of channels or circ1.1i.ts with regard to the use of the County Dark Fibers, 6.2 Areas of ResllonsibiIitv - Lateral Connections. If the County Dark Fibers are to be placed in Ll'lteral Connection(s) by ZAYO, County shall obtain for the benefit ofZAYO (per Section 12.1), for the Term of the applicable Servicl? Order, all private rights or'access necessary , 10 Anoka County Master Fiber IRU 8,14.10 60 1 for ZA YO to terminate any such Lateral Connections to access the County Dark Fibers, and install, splice, maintain, repair and replace the COUlity Dark Fibers therein. 6.3 Route Design. County acknowledges that, for portions of the System Route on which construction has not begun, ifany, as of the Effective Date of this Agreement, deviations ; in the Zayo System Route or County Route, including material deviations from the Estimated Route Miles, are possible, ZA YO shall take into consideration any of County's input, interest and concerns with respect to material changes in the route design of the Initial Service Order. i ; Testing and Acceutance of County Dark Fibers 7. 7.1 Fiber Acceutance Testing. ZAYOshall test the County Dark Fibers ("Fiber Acceptance Testing"). ZA YO shall provide County reasonable advance notice of the date and time of each Fiber Acceptance Testing such that County shall have the. opportunity to have County personnel present to observe the Fiber Acceptance Testing. When ZAYO has determined that the results of the Fiber Acceptance Testing show that the County Dark Fibers, with respect to. all Segments included within a Service Order, have been installed and are operating in conformity within the ZA YO specification, as detailed ill Exhibit E ("Acceptance Speci;fications"), ZA YO shall promptly provide County ,written notice of the same (a "Notice of Completion," as generally S'lt forth in Exhibit C attached hereto and incorporated herein) am} a copy of such test,results. 7.2 Notice of Comuletion. Within ten (10) business days of receipt of the Notice of , , Completion, County shall return to ZA YO the Notice of Completion either (i) accepting the , ' County Dark Fibers with respect ,to such Service' Order, or (ii) rejecting the County Dark Fibers i I ! with respect to such Service Order. If County rejects the County Dark Fibers with respecrto a ! Service Order, County shall also specify 41 writing, in reasonable detail, the defect ot failure in j the Fiber Acceptance Testing. If County fails to notify ZA YO of its acceptance or rejection of I the Notice of Cornpletion within ten (10) days following County's receipt of the same, County shall be deemed to have accepted the County Dark Fibers With respect to such Servic~ Order. ! The date of such notice of acceptance or deemed acceptance of the County Dark Fibers with i ' respect to an entire Service Order shall be the "AcceptaIice Date," In the event of any good faith I rejection by County, ZA YO shall take such action as reasonably necessary, and.as expeditiously \ as practicable, to correct or cure such defect or failure, and the process of Fiber Acceptance Testing, notice to County and acceptance shall be repeated with,respect to such rejected COlmty , Dark Fibers. The foregoing notwithstanding, if County uses any portion of the County Dark Fibers prior to acceptance, other than for testing County Equiprnent, such use shall constitute I acceptance of such portion of such County Dark Fiber, with an Acceptance Date effective as of the earliest documented use by County. .1- 8. ' Installation of County Eauiument 1 8.1 Eauiument Responsibilitv:. The installation, use, repair, maintenance and ! replacement of County Equipment shall b~ the sole responsibility of County, and ZAYO shall have no obligation or liability under this Agreement or otherwise to install, maintain, repair or replace any Connty Equipment. ' 8.2 No Interference. County shall not use its facilities, including without limitation 11 Anoka County Master Fiber IRU 8.14,10 61 ! ,'., the COWlty Dark Fibers and the COWlty Equipment, in a way that interfere~ in ap.y way with or adversely affects the use of the ZA YO System or any Cable therein or other equiprnent and facilities of any Person (including ZA YO) using the ZA YO System, COWlty'S facilities, I including without limitation the COWlty Dark Fibers and the COWlty Equipment, shall not I endanger or damage the ZA YO System and shall not create an unreasonable risk of damage to , property or injury or death to any individual or to the public. County acknowledges tha~ the I ZA YO System includes or will include other participants, including ZA YO and other owners and j users of telecommunications systems. "j , 8.3 Periodic Insuection. Up to the Demarcation Point on the Network Side, ZA YO shall have the right, but not the duty, to make periodic or spot inspections of, to be present at, and to monitor any access to or work by COWlty relating to aily COWlty Manholes and' COWlty Handholes. Such inspections and monitoring may'be conducted for the purpose of determining whether facilities placed ~n the COWlty Manholes or COWlty Handholes and wor).<: relating thereto are in compliance with the terms of this Agreement. ZA YO may charge COWlty for the Costs of inspection and monitoring only if the inspection or monitoring reflects that COWlty is in substantial non-compliance with'the termS of this Agreement. If ZAYO reasonably determines . .~..i' that any work or facilities is not in compliance with the terms of this Agreement, COWlty shall, , upon written notice from ZA YO, bring its work and facilities into material compliance within , forty-eight (48) hours of such written notice or, at a minimum, cofnmence curative measures within twenty-four (24) hours and exercise reasonable diligence to complete such measures as soon as possible thereafter. If County fails to at least commence corrective measures within twenty-four (24) hours of ZA YO's notice, tht;n ZA YO may take any action it deems appropriate to correct the non-compliance, iI).cluding directing immediate suspension of work relating to the ZA YO System. Failure of COWlty to bring its work or facilities into compliance as aforesaid : shall constitute a material breach Wlder this Agreement. .. ; I 8.4 Health and Safety. If ZA YO, in its reasonable discretion, determines that ' conditions exist within the ZA YO System that pose an immediate threat of damage to property, injury to or death of any Person; or that a violation exists of any, of the Permits, then ZA YO may direct that all work or use by COWlty or others relating to the ZAYO System, including the COWlty Dark Fibers, be immediately suspended Wltil the violation or condition is corrected to ZA YO's satisfaction. Neither Party shall be liable for or entitled to any damages for such suspension. If any condition or violation is a direct or indirect result of County's use of the COWlty Dark Fibers or County Equipment, County shall pay and reimburse ZA YO for one hWldred percent (100%) of all Costs incurred by ZA YO in taking corrective action within thirty " (30) days bfthe date of ZA YO's invoice therefore. 9. Construction Services ,'j Notwithstanding anything contained in this Agreement to the contrary, any and all work ., with respect to the Connty Dark Fibers and the ZA YO .. System shall be performed solely by :1 ; ZA YO with respect to the Initial Service Order. In addition, from time to' time, ZA YO may provide construction serVices ("Construction Services") in -:the form of installation of Duct, ! conduit, Lateral Connection(s), optical fibers" splicing and testing of such fibers, and , .. construction of manholes and handholes. If COWlty requires a lateral connection to the Zayo ; System, consist~nt with Minnesota law, Zayo shall have the right to match any bid by a third j party to construct a lateral connection to the Zayo System for any additional locations. Any" I I 12 I Anoka County Master Fiber JRU 8,14.10 I 62 splicing or connection to the Zayo System shall be performed by Zayo pursuant to E:xhibit D. Prior to the commencement of ~Y Construction Services purSUailt to this Section 9, the Parties . ! will mutually agree upon pricing, terms and conditions, and both Parties shall execute a separate ; agreement for such Construction Services. I 10. Maintenance and Repair ofthe ZAYO System , 10.1 MaintenanceProcedures. From and after the Acceptance Date for the County I I ,I " Dark Fibers in a Service Order, the maintenance of such County Dark Fibers shall be provided in. .. I ! 1 accordance with the maintenance requirements and procedures set forth in Exhibit D. County agrees to reimbPrse ZA YO for Costs incurred by it for non-Routine Maintenance in accordance I with the provisions of this Section lQ and Exhibit D. (a) , Routine Maintenance. During the Service Term, ZA YO shall provide, or . , cause to be provided by contractors selected by ZAYO, all required Routine'Maintenallce of the , ZA YO System and the County Dark Fibers in accordance with the provisions set forth in ,; Exhibit D, "Routine Maintenance" means the work specifically identified as Routine' " Maintenance in Exhibit D, provided that Routine Maintenance excludes (i) work for which County is obligated'to reimburse ZA YO pursuant to other Sections of this Agreement (illcluding ! Section 9), (ii) work necessitated by County's negligence or willful miscond1;!ct, or (iii) County's f i elective maintenance or repair requests. I I (b) Non-Routine Maintenance. In. the event that an event of non-Routine Mainten~ce relates to (i) work necessitated by County's negligence or willful misconduct or (ii) , ' County's 'elective rnaintenance or repair requests, County. shall pay and reimburse ZA YO for Qne i hundred percent (100%) of all, Costs actually 'incurred by ZAYO in connection with such ! non-Routine Maintenance, within thirty (30) days of County's receipt of ZAYO's invoice therefore. All other non-Routine Maintenance costs actually incurred, an4 not reimbursed by a third party, shall be paid by County pursuant to its Pro Rata Share. ' 10.2 Service Affectinf! Condition. From and after the Acceptance Date with respect to the County Dark Fibers in each Service Order, in the event that ,a Service Affecting Condition ; ; exists in all or any part of.the ZA YO System, ZA YO shall use commercially reasonable efforts , ,to resolve such Service Affecting Condition utilizing the procedures described hi. Exhibit D. I Notwithstanding anything contained herein to the contrary, ZA YO shall not incur any liability to i Connty by reason of ~ Service Affecting Condition, except its obligation to resolve such Service ! Affecting Condition as set forth in this Section 10.2, and CountY,shall not be entitled to any ; credits or for any other payment paid, or to be paid by County pursuan.t to this Agreement by I reason, of such Service Affecting Condition. A Service Affecting Condition shall specifically ! exclude any condition that is caused by the County Equipment. i 'I. 10.3 Access to ZAYO System. County shall have, no right whatsoever to physically ! access the ZA YO System or, the Cable, or to maintain, splice, adjust,' align, cut, repair or replace the County Dark Fibers or ZA YO System, or attempt to do any ofthe foregoing. I I ! 11. Underlying Rights: Relocation 11.1 ZAYO's Underlying Rights. Subject to the terms and provisions of this 13 Anoka County Master Fiber IRU 8.14,10 63 " ,,>, Agreement, ZA YO agrees that it has or will obtain prior to the Acceptance Date for the Connty Dark Fibers described in a Service Order; and will maintain during the Service Term for such County Dark Fibers, all Underlying Rights p.ecessary for ZAYO's construction, installation, rnaintenance and repair of the ZAYO System an4 for ZAYO's grant to County of the use of the County Dark Fibers in the manner contemplated by this Agreement. ZA YO shall not be in breach of the representation and warranty in the preceding sentence during ~y period when ZA YO is seeking to renew or extend existjng Underlying Rights, and such Underlying Rights have not yet been renewed or extended, and the grantor of such Underlying Rights; has not given ZA YO notice of default under or non-renewal of the Underlying Rights; provided, however, that (i) Connty's use of the County Dark Fibers is not in any way impacted or impaired by such delays and (ii) ZA YO agrees to indemnify, defend, protect and hold harmless the Connty Indemnified Persons from anq against, and assUmes liability for, all Claims arising out of or related to such delays. Tl).e Dark Fiber IRU is subject to the terms of ZA YO's Underlying Rights, and subject to the terms under which ZA YO's Underlying Rights are owned or held by " the grantor of the Underlying Rights, including covenants, conditio~s, restrictions, easements, ; reversionary and other interests, bonds, mortgages and indentures, and. other matters, whether or not of record, and to the rights of tenants and licensees in posse~sion. The Dark Fiber IRU . ,. granted hereunder is further subject and subordinate to the prior right of the grantor of ZA YO's Underlying Rights to use the rights-of-way for other activities, includipg railroad operations" telecommunications uses, pipeline operations or any other purposes, and to ~e prior right of ZA YO to use its rights granted under ZA YO's Underlying Rights. 11.2 Relocation. If, after the Acceptance Date with respect to any Segment, ZA YO is required. by a third' Person with legal authority to so require (including the grantor of an Underlying Right) or by the occurrence of an Event of Force Majeure, or if County agrees to: I relocate any portion of the ZAYO System, with respect to such'Segment, including any of the facilities used or required in providing the Dark Fiber IRU, ZA YO shall have the right either to i proceed with such relocation, including the right, in good faith, to reasonablY' deteimine the I extent of, the timing of, and methods to be used for such relocation, or (if applicable) to pay such I I amounts to the Person requiring such relocation as are necessary to avoid the' need for such. relocation. In the event of any such relocation, ZA YO shall use commercially reasonable efforts to minimize any service interruptions. County shall pay its Pro Rata share of the costs to either , ' i relocate such Segment or payment for the avoidance of relocation of such Segment. i 12. Operation and Use of the ZAYO System : 12.1 County's Operations. Connty shall use and operate the Connty Dark Fibers, the i County Equipment, and maintain, repair and replace the County Equipment, in compliance with : ' and subject to the Permits applicable to County. Notwithstanding anything to the contrary' contained herein, it shall be County's sole responsibility to secure, or cause to be secured, prior to the Acceptance Date for each Segment, and maintain in full force and effect during the Term, any and all Underlying Rights and Permits that are necessary or required to be obtained by County for the use and operation of the Connty Dark Fibers, the County Equipment by County. Upon request of ZA YO, County will deliver to ZA YO copies of such County Underlying Rights and Permits. 12.2 No Liens. ZA YO agrees and acknowledges that it has no right to use the County Dark Fibers during the Term hereof and that, from and a,fter the Acceptance Date for any County , . 14 Anoka County Master Fiber IRU 8.14.10 64, I . .... .... '; . ... I i ., I i Dark Fibers, ZAYO shall keep the County Dark Fibers free from (a) any liens or encumbrances ! , i of any third Person attributable to ZA YO and (b) any other rights or claims of any third Person attributable to ZA YO, which in either case are superior to the rights of County. Notwithstanding the foregoing sentence, such representations by ZA YO shall not include any liens or other interests in the County Dark Fiber or any part of the ZA YO System created through the Grant. l 12.3 ' Use of Countv Dark Fibers. Subject to the limitations set forth in this , ! Agreement, County shall use the County Dark ,Fibers solely for the Permitted Use and solely for i lawful purposes. In no event whatsoever shall County directly or indirectly transfer, sell, assign, , ! condo, swap, exchange, IRU, sub-IRU, license, sublicense, resell or grant indefeas;ble or other' i rights of use in or to all or any part of the County Dark Fibers or County's interest therein, or enter into any other arrangement with any Person for such Person; s use of all or any pari; of the County Dark Fibers; provided, however that County may so transfer a limited interest in its County Dark Fibers if such transfer is consistent with the permitted Uses, C01lllty agrees and acmowledges that it has no right to use any of the Cable that is part of the ZAYO System, other than the County Dark Fibers. County shall keep any and all of the ZA YO System free from ,any ::! liens, rights or claims of any third Person at!ributable to County. Any transfer, assignment or I I other action in violation of this Section 12.3 shall constitute a material breach of this Agreement I ! and shall, in -addition to any other remedj.es available to it, entitle ZA YO to terminate this I Agreement without any liability to County or the repayment of the IRU Charge or any other fees \ or charges paid by County. ! 12.4 Dama2e to ZAYO System. County a;nd ZA YO shall promptly notify each other i I' of any matters pertaining to, or the occurrence (or impending occurrence) of, any, event which would be reasonably likely to give rise to a;ny da1+lage or impending damage to ,or loss of the \ ZA YO System that are mown to such Party, , , 'ComDliance with Permits. County and ZA YO each agrees to cooperate with " 12.5 I and support the other in complying with any Permit information request to their respective rights I r and obligations hereunder. Without limiting the generality otthe foregoing, County agrees to provide,to ZA YO, promptly upon request by ZAYO, a detailed description of its uses of the I County Dark Fibers and any other information regarding its use of the County Dark Fibers I reasonably requested by ZA YO in order to enable ZA YO to comply with any reporting ! requirements imposed on ZA YO. i 13. Indemnification ! 13.1 Mutual Indemnity. Subject to the provisions of Section 14, each 'Party, on i , behalf of itself and its Affiliates, and their respective' employees, officers; directors and agents 1 , ("Indemnitor"), to the extent permitted by law, hereby agrees to indemnify, defend, protect and ' hold harmless the other party and its Affiliates, and their respective employees, 'officers, , directors and agents (the "Indemnified Persons"), froni and against, and assumes liability for all ! . suits, actions, damages, claims, losses, fines, judgments, costs' and expenses (including reasonable attorneys', accountants', experts' fees and disbursements and costs of appeal) of any kind or character ("Claims") suffered or incurred by the'Indemnified Persons or any ofthem (a). because of the death of any Person, or any injuries or damage received or sustained by any ! Persons or property (including without limitation, the ZA YO System), which in whole or in part 15 r ; Anoka County Maste: Fiber IRU 8.14,10 i 'j 65 . , , i I '.. I arise on account of the willful misconduct or grossly negligent acts or omissions, of the . Indemnitor in the performance or non-performance of its obligations or exercise of its rights under this Agreement, including any material violation by Indemnitor of any regulation, rule, statute or court order of any governmental authority applicable thereto; (b) under the Workers' Compensation laws asserted by any employee of the Indemnitor or any of its agents, contractors, I customers or any other Person providing goods or services fOJ: or on behalf of any of the ! foregoing in connection with this Agreement; (c) because' of the violation of any Permits by the :rlldemnitor; or (d) arising out of, caused by, related to or based upon a contractual or other :j ; relationship between such claiming party and the Indemnitor, as it relates to the County Dark I i I Fibers, the County Equipment, the Underlying Rights, the Permits' or this. Agreement. ! Additionally, County, as Indemnitor, hereby agrees to indel.11i1ify, defend, protect and hold harmless the ZA YO Indemnified Persons from and against any Claims arising out of or resulting from (i) County's use or operation ofthe Com:ty Dark Fibers, or th~, use, operation, installation, repair, maintenance or replacement of the County Equipment, (ii) the conduct of County's business, including without limit, the provision of any services or the content of any video, voice . or data carried through the County Dark Fibers, including any claim for interruption of service or : in respect of service quality, (Hi) County's customers or (iv) violation by County of any Underlying Rights. An Indemnitor's indemnification obligations hereunder shall not be I i applicable to any Claims to the extent caused by the negligence, intentional acts or omissions or willful misconduct of the Indemnified Persons. I i 13.2 Indemnification Notice. Any IndeU1I1i$ed Persons seeking indemnification I hereunder shall promptly notify County or ZA YO, as appropriate, of the nature and amount of i such Claim and the method and means proposed by the Indemnified Persons for defending or I satisfying such Claim. Failure of the Indemnified Persons to timely give such notice to . Indemnitor shall relieve the Indemnitor of its indemnity obligations hereunder only to the extent it is prejudic~d or damaged by such failure. The PartieS shall consult and cooperate with each other" at their individual cost and expense, respecting the defense and settlement of such Claim; however, Indemnitor shall have sole control, including the selection of, and direction 'to, legal , . . counsel for any action or litigation of the Claims and. all negotiations for the' settlement or i I compromise of the Claims, except that Indemnitor may not make any non-monetary settlement I I or compromise without the Indemnified Persons' consent, which consent shall not be I i unreasonably withheld. Nothhig herein shall be deemed to prevent the Indeuniified Persons from ., ..1 'I participating in the defense and/or settlement of any Claim by Indemnified Persons' own counsel at the Indemnified Persons' own expense. No Indemnified Persons shall take any action to ; settle, to compromise or otherwise .make any payment, admission ,or statement to or for the , benefit of any third party claimant wit40ut Indemnitor's written consent. 13.3 Indemnification Rights Against Third Parties. Nothing contained herein shall , operate as a limitation on the right of either Party hereto to bring an action for damages against any third Person, including indirect, special or consequential damages, based on any acts or ., omissions of such third Person as such acts or omissions may affect the constrUction, operation or use of the County Dark Fibers or the ZA YO System, except as may be limited by Underlying Rights or Permits; provided, however, that each Party hereto shall assign such rights or claims, , execute such documents and do whatever else may be reasonably necessary to enable the other Party to pursue any such action against such third Person. . 13.4 County's Release of Grantor. Notwithstanding the foregoing provisions of this 16 I Anoka County Master Fiber IRU 8.14.10 ! . . '". . ' 66 Section 13, to the extent ZA YO is required under the terms and provisions of any Underlying Rights to indemnify the grantor or provider thereof from and against any IlD-d all Claims arising out of or related to such Underlying Rights, regardless of the cause and regardless of whether I such Claims arise from the sole or partial negligence, actions or inaction of such grantor or pr vider or its employees, servants, agents, contractors, subcontractors or other Persons using the pr perty covered by such Underlying Right, CoUnty hereby releases such grantor or provider ! from the same, regardless of whether such Claims arise from the sole or partial negligence, ; willtul misconduct or other action or inaction, of such grantor or provider or its employees, , I se vants, agents, contractors, subcontractors or other Persons using the property covered by such , i Un erlying Right, I i 14. Limitation of Liabilitv ; 14.1 NEITHER ZA YO NOR THE COUNTY SHALL BE LIABLE FOR SPECIAL OR PUNITIVE DAMAGES OF ANY KIND UNDER ANY CIRCUMSTANCE WHATSOEVER. IN ADDITION, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER ZAYO OR ITS AFFILIATES SHALL BE LIABLE NOR RESPONSffiLE Ta COUNTY OR ITS AFFILIATES OR CUSTOMERS FOR ANY INCIDENTAL, INDIRECT .oR CONSEQUENTIAL CaSTS, LIABILITIES .oR I DAMAGES, WHETHER FORESEEABLE OR NOT, INCLUDING WITHOUT LIMITATION AS APPLICABLE, ECONOMIC LOSS OR LOST BUSINESS .oR PROl;"ITS, DAMAGES ARISING FROM THE USE OR PERFORMANCE OF THE ZAYO SYSTEM, THE COUNTY DARK FillERS, EQUIPMENT OR SOFTWARE .oR DAMAGE TO OR LOSS OF USE THEREOF, ANY INTERRUPTION OF SERVICE, OR ANY DELAY, ERROR OR LOSS OF . ' [ DATA OR INFORMATION ARISING IN ANY MANNER OUT OF, OR IN CONNECTION WITH, TIllS AGREEMENT AND ZA YO'S PERFORMANCE .oR NONPERFORMANCE .oF j ITS OBLIGATIONS UNDER THIS. ,AGREE1yJENT, REGARDLESS OF THE FORM OF I ACTION, WHETHER IN CONTRACT OR TORT (INCLUDING STRICT LIABILITY), ALL I I 1 CLAIMS FOR WHICH ARE HEREBY SPECIFICALLY WAIVED. ! 14,2 . Claims Limitations. The Parties expressly agree that no' claim for losses or damages whatsoever in connection with this Agreement shall be made more than two (2) years :\ after the date that the event giving rise to such claim is known or reasonably should have been kn wn to the Party making' such claim, and no claim for indemnity under the provisions of ! Section 13 shall be made more than two (2) years after the first notice of any claim received by "j the party claiming under such indemnity provis~on. ! 14.3 ,Maximum Liabilitv. Notwithstanding any provision ,of this Agreement to the ! contrary, until the Acceptance Date ofthe Initial Service Order, the maximum liability of County or Zayo in connection with this Agreement shall be limited, in the aggregate, to the IRU Charge 'I i due from County hereunder; provided, however, that this limitation of maximum liability shall I I not apply to damages arising from the willful misconduct of County or ZA YO;, and provided I further, that this limitation shall not restrict either party's right to proceed for injunctive relief. I ! After the Acceptance Date of the Initial Service .order, the rnaximum liability of County or Zayo I in connection with this Agreement shall be limited, in the aggregate, to Fifty Thousand Dollars I ($50,000); provided, however, that this limitation of maximum liability shall not apply to ! ! damages arising from the willful misconduct of County or ZA YO; and provided further,that this limitation shall not restrict either Party's right to proceed for injunctive relief. "oj 17 Anoka County Master Fiber IRU 8.14.10 67 15. Insurance , i 15.1 Insurance Limits. During the Term, each party shall obtain and maintain not less than the insurance set, forth below: Workers' Compensation:. i (A) Workers' Compensation: Statutory ! (B) Employer's Liability: (1) Bodily Injury by Accident, for Each Accident: $1,000,000 (2) Bodily InjUry for ,Each Employee by Disease: $1,000,000 (3) , Policy Limit for Bodily Injury by Disease: $1,000,000 Commercial General Liability: Written to include coverage for: 'Broad Form Property Damage; Bodily Injury; Personal Injury; Blanket Contractual Liability; Products/Completed. Operatipns. (A) Combined Single Limit per Occurrence: $1,000,000 ! (B) General Aggregate: $1,000,000 i $1,000,000 I (C) , Fire Legal Liability per Occurrence: i (D) Medical Expense per Person per Occurrence: $1,0,00,000 This policy will be primary an~ non-contr~butory. Automotive Liability: Such policy will include coverage for all vebicies owned, hired, non-hired, non-owned and borrowed by contractor in the performance of the obligations covered nnder this Agreement. Combined Single Limit: $1,000,000 i Umbrella Liability: I ' Combined Single Limit: $5,000,000 The above minimum requirernents as to insurance coverage shall not limit the liability of either Party under this Agreement. The above limits may be satisfi\(d using a combination of primary and excess coverage. 15,2 Insurance Requirements. Each party shall obtain and maintain the insurance policies required above with insurance and/or reinsurance companies authorized to insure risks in tb,e 'state where the ZA YO System is located and any other state as applicable, and having an i A.M. Best Rating of A- or better. With the exception of worker's compensation, each Party, its I Affiliates, and their officers, directors and employees, and any other Person entitled to ! indemnification hereunder, shall be named as additional insureds to the extent of such I ! indemnification. With respect to ZAYO, the additional insured language should read "Zayo ; Bandwidth, LLC, and its subsidiaries and affiliates and the officers, directors and employees are ., named additional insi.u:eds." Each Party, shall provide the oth\(r Party with a certificate of insuranc,e showing that the Party has complied with the insurance requirements of this Section. Each insurance policy shall cont~n a provision providing the other such Party with thirty (30) days advanced notice of any cancellation or materil;ll change in coverage at which time such Party will notify the other Party immediately of such cancellation or material change in ......3 18 Anoka County Master Fiber JRU 8, J 4,1 ~ , 68 .' coverage. 15.3 Deductible I Self Insured Retentions. All proof of insurance shall clearly set forth deductible or self insured retentions. Each Party shall be responsible for. its deductible and/ar self4tsured retentions, 16. Taxes. Fees and Other Government~l Impositions 16.1 . INTENTIONALLY DELETED. 16.2 Impositions. After the Acceptance Date of County Dark Fibers cont$ed in the fuitial Service Oraerand to the extent applicable, County shall be responsible for and shall promptly reimburse ZA YO for County's proportionate sh!!fe of all Impositions that are not. i separately assessed, aI.located"levied of imposed on the ZA YO System, the Connty Dark Fibers, , I the County Equipment or other property or facilities of County. County's proportionate share of j Impasitions shall1;Je determined by multiplying the Impositions of all Governmental Authorities I having jurisdiction over the ZA YO System that includes the County Route by the ratio to which the number of Fiber Miles of County Dark Fibers in the County Route bears to the,total number of Fiber Miles of the ZA YO System within the jUrisdiction(s) of the Governmental Authorities assessing the Impositions. To. the extent such Impositions, are not separately assessed, allocated, I l~vied or imposed, ZA YO will pay all such Impositions. ZA YO sha1~ natify County of such Impositions and County's proportionate share of the Impositions, and Caunty'shall promptly reimburse ZA YO for County's proportionate share ofthe Impositions. , \ 16.3 Countv'Impositions. In additian to the Impositions described in Section 16.2, I \ after the Acceptap.ce Date of County Dark Fibers contained inthe Initial Service Order and to the I 1 extent applicable, County shall be responsible for and shall payor promptly reimburse ZA YO ! for all Impositions that have been separately assessed, auocated to or levied or imposed on: (a) , ; the County Dark Fibers, (b) County's IRU or use of the County Dark Fibers, including the ! provision of services aver the County Dark :Fib(!!S, (c) Caunty's use of any other part of the I I ZA YO System, (d) County's ownership or use of County Equipment or any other property or t I facilities connected to the County Dark Fibers, or (e) the provision or sale to County af :\ maintenance, collocation, or other ZA YO services provided pursuant to this Agreernent; pravided however, COurity shall not be responsible for any Impositions imposed on. or based I upon the income, capital, or net worth of ZA YO. ' I 16.4 ZA YO Rilfht to Contest Impositions. ZA YO shall have the'right to. contest by , appropriate proceedings any Imposition (inciuding by nonpayment of such Imposition). The out-of-pocket costs and expenses (including reasonable attorneys' fees) incurred by ZA YO in any such contest shall be shared by ZA YO and County in the same proportion as to which the :1 Parties would have shared in such Impositions as they were assessed. Any refunds or credits resulting from a contest brought pursuant to this Section 16.4 shall be divided between ZA YO and County in the same proportion as separately determined or as originally assessed, In any such event, ZA YO shall provide timely notice of such challenge to ~ounty., County agrees to cooperate with ZA YO in any such contest. 16.5 Cooperation in Preoaration. ZAYO and Gounty agree to cooperate fully in the preparation of any returns or reports'relatiilg to the Impositions. ZAYO and County further 19 Anoka County Master FiberlRU 8.14.10 , ! 69 i I I I acknowledge and agree that $e provisions of this Section 16 are intended to allocate the I Impositions based on procedures and rnethods of computation that are in effect on the date of this Agreement. Material changes in'such procedures and m~thods could significantly alter the fundamental economic assumptions of the Parties relied upon in entering this Agreement. AccordinglY, ,the Parties agree that, if such procedures or methods of computation change 'materially, the Parties will negotiate in good faith an amendment to this Section 16 to preserve, to the extent reasonably practicable, the economi~ intent and effect ofthj.s Section 16. I 17. Notices' I , i 17.1 Notices. All notices, statements, demands, requests, consents, approvals, . authorizations, offers, agreements, appointments, designations, or other direction or communication hereunder by any party to another shall be' (a) in writing, (b) effective on the first business day following the date of receipt, and (c) delivered by one of the following means: (i) by personal delivery; (ii) by prepaid, overnight package delivery or courier service; or (Hi) by the United States Postal Service, first class, certified mail, return receipt requested; postage prepaid;. ' All notices giveJ;1 under this Agreement shall be addressed as follows: COUNTY: For Legal or Operational Notices: i County of Anoka 2100 3rd Avenue Anoka lvIN 55303 i Attn: County Administrator With copy to: County Attorney j COUNTY: For Billing: i i Department ofInfomiation Services Anoka County 2100 3rd Avenue Anoka lvIN 55303 ..! Attn: Accounts Payabl!l :1 i ZAYO: For Payments: Zayo Bandwidth, LLC 400 Centennial Pkwy, Suite 400 , Louisville, CO 80027 1 ! Attn: Accounts Receivable " :! For Notices under this Agreement: , Zayo Bandwidth, LLC 400 Centennial Pkwy, Suite 400 Louisville, CO 80027 . Attn:' General Counsel ' ' ... 20 Anoka County Master Fiber IRU 8,14,10 70 or to such other postal addresses, email addresses,' or telecopier numbers of which the Parties , have been advised in writing by any of the above-descnoed means, Personal delivery to a party , or to any officer, partner, agent, or employee of such PartY at its address herein shall constitute i receipt. The following shall also constitute receipt: (i) a J,>arty's rejection or other refusal to t accept notice, and (ii) the inability to deliver to a party because of it changed postal address, I email address or telecopier number of which no notice has been received by the other Party. I Notwithstanding the foregoing, no notice of change of postal address, email address or telecopier , number shall be effective until five (5) business days after the date of receipt thereof. Each Party , I agrees to promptly give the other party, notice of any change in its above listed, respective postal addresses, email addresses, telecopier numbers or contact persons. I , ConfidentiaIitv I 18. I I i 18.1 ZA YO Data. County will have no obligation to prevent or withhold disclosure of ,any data or infonp.ation supplied by zA YO, including Confidential Information, except as I I . otherwise provided in the Minnesota-Data Practic~s Act, Minnesota Statutes, Chapter 13 (the "Act"). County will prevent or withhold d!sc!osure of Trade Secrets in accordance with the Act. 18.2 Countv Data. Zayo may be exposed to government data and/or data on indiv.iduals or organizations that is private or confidential. In addition, Zayo may be exposed to private or confidential infol'Ililition relating to County's computers, network, programs, and computer systems (hereinafter, collectively 'iCounty Information"). Z!'>-YO is not obligated to release or disclose County Information pursuant to the Act. Zayo agrees that it, and its employees, and their subcontractors and their employee$ shall regard and treat each item of i County Information as private or confidential information and that it will not, without the i express written consent of the County, redistribute, market, publish, disclose or divulge to any , other person, firm or entity, or use or modify for use, directly or indirectly, any of the County Information except pursuant to binding co'\lli order. At the end of the Project, Zayo shall return aU County Infonnation to the County. , 18.3 No Right or License to Countv. Nothing herein shall be construed as granting I any right or license under any copyrights, inventions, or patents now or hereafter owned or :1 " controlled by ZAYO, The Receiving, Party will not reproduce the Disclosing Party's Confidential Information or Trade Secrets in any form, except as required to accomplish the I I intent of this Agreement. Any reproduction of any Confidential Information or Trade Secrets by , " I the Receiving PartY will remain the property ofthe Disclosing party and will contain any and all ! i confidential or proprietary notices or legends that appear on the original? unless o~herwise i authorized in writing by the Disclosing Party. I 18.4 Return of Co~fidential Information. Upon termination of this Agreement for I ,I I any reason or upon request of ZA YO, County shall return all Confidenti,al1nformation, together ' ,I ; with any copies of same, to ZA YO. The requirements of confidentiality set forth herein shall I ! survive the return of such Confidential Information. i 18.5 pubIicitV,. Neither Party shall, without first obtaining the written consent of the ! i other Party, use any logo, trademark, or trade naine of the other, party or its Affiliates or refer to ! the subject matter of this Agreement or the other Party or its Affiliates nor disclose to others any i specific information about the subject matter of this Agreement without the pril?r written consent 21 Anoka County Masler Fiber IRU 8,~4.10 71 .' of both Parties. Notwithstanding the above, ZA YO may use any logo, trademark or trade name of User or its Affiliates in any (i) promotional sales materials and related activity, (ii) publication . or press release related directly. or indirectly to this Agreement or (iii) in'{estor related materials. Notwithstanding the above, ZA YO may share this Agreement or its' subject matter with: (i) accountants, attorneys, affiliates, prospective purchasers, fulan<<ial. advisors and contractors who have a need to know; or (ii) Goverrimental Authorities requiring such information, in order for ZA YO to comply with certain reporting requirements based on ZA YO's contractual andlor legal obligations with such Governmental Authorities. 19. Default 19.1 Events of Default. A default shall be deemed to have occurred under this Agreement if: (a) . in the case of a failure to pay ffi!.y amount when due under this Agreement, a party fails to pay such amount within ten (10) days after. the date such payment is due; or . (b) in the case of any other material breach of a Party's obligations, warranties or covenants under this Agreement, the breaching party fails to cure such breach within thirty (30) days after receiving written notice from the non-breaching party specifying such breach, provided that if the breach is of a nature that is curable but that cannot be cured within tIftrty.(30) days, a default shall not have occurred so long as the breaching party in good faith has commenced to cure :-vithin said time period !lIld thereafter diligently pursues such cure to completi?n; or (c) use of the County Dark Fiber for purposes other than the Permitted Use; or I (d) breach of County's obligations, warranties or covenants under the MSA; . . or I I I (e) in the case a party: (i) applies for or consents to the appointD;lent of, or the taking of possession by a receiver, custodian, trustee, or liquidator of itself or of all or a :1 ! substantial part of its property, (ii) makes a general assignment for the benefit of its creditors, (Hi) commences a voluntary proceeding under the Federal Bankruptcy Code or under any other law relating to relief from. creditors generally, or (iv) fails to contest in a timely or appropriate manner, or acquiesces in writing to, any petition filed against it in an involuntary proceeding under the Bankruptcy Code or under any other law relating to relief from creditors generally, or any application for the appointment of a receiv~r, custodian, trustee, or liquidator of itself or of all or a substantial part of its property, or its liquidation, reorganization, dissolution, or winding- , . up. :1 : 19.2 Remedies. In the event of any other default hereunder, the non-defaulting Party i may avail itself of one or more of the following re~edies:: ; ; (a) if the defau~t con~ists of a failure of County to pay to ZA YO any amount hereunder or a non-monetary default hereunder, ZA YO may, in its sole discretion: (i) upon ten (10) days notice to County and failure by County. to pay such outstanding IRU Charges or other amounts, immediately suspend the use of.the County Dark Fibers by County andlor all services . .. 22 Anoka County Master Fiber IRU 8.14.10 72 i , i under the MSA until such IRU Charge(s) and other amounts have been paid to ZAYO together with an interest penalty of one and. one-half percent (1.5%) per month, compounded monthly; (ii) immediately terminate the MSA with respect to the Segtnent(s) for which such part of the IRU Charge or other amount(s) relate; (Ui) apply any and all amounts held by ZAYO for County toward the payment of amounts then or thereafter payable by County hereunder; or (iv) issue a . Disconnect Notice to County. In the event such Disconnect Notice is issued and County does not cure such default by immediately paying all past due IRU Charges such that County's account is considered current by ZA YO, then ZA YO may disconnect the Comlty Dark Fiber under the applicable Service Order without further notice to County and without liability to ZAYO. At the . time of such disconnection (1) the applicable Service Order shall be considered terminated; (2) all past due IRU Charges shall be immediately due and payable, together with an interest penalty of one and one-half percent (1.5%) per month, compounded monthly; (3) alllRU Charges for the remainder of the Service Term of the applicable Service Order shall immediately become due and payable; and (4) ZA YO shall provide notice to County of the Termination Charge incUrred by ZA YO and such Termination Charge shall be immediately due and payable by County to ZAYO. Such disconnection shall not terminate or limit in any way ZAYO's other rights and :remedies available to ZA YO under this Agreement or at law or in equity, in its sole discretion. (b) In the event of any other default hereunder, the non-defaulting Party may I pursue any remedies it may have under applicable law or principles of equity, including specific performance and terminate this. Agreement, by giving the defaulting Party written notice of termination. 20. Termination 20.1 Service Order Exoiration. Upon the expiration of the Service Term of any Service Order, the Dark Fiber IRU with respect to County Dark Fibers in each such Service .u " Order shall immediately terminate, all rights of County to use the County Dark Fibers within '. such Service Order shall cease, all rights to the use of the County Route and the County Dark ; FibeJ:$ shall revert to ZA YO, and ZA YO shall owe County no further duties, obligations or I I I consideration. i , .J 20.2 Removal of County Eauioment. County shall, within thirty (30) days of such .. termination, remove all County Equipment and County Media used in connection with the County Dark Fibers, if any. County shall accomplish such removal at County's sole expense, under ZAYO's supervision and in a manner that does not damage the ZAYO System. County j shall be responsible for and shall indemillfy ZA YO from and against any damage; loss, cost or expense caused by such removal. If County fails to remove its property within such period, the property shall be deemed abandoned and ZA YO may dispose of the same in any manner it deems reasonably appropriate, at County's expense. 20.3 Ril!hts and ObIil!ations After Termination. Termination or expiration of this Agreement or any Service Order shall not affect the rights or .obligations of either party that have arisen before the date of such termination or expiration. Each Party's indemn.ification and confidentiality obligatiol1!,! sha)l survive termination or expiration of this Agreement. 21. Force Maieure 23 Anoka County Master Fiber IRU 8.14.10 73 I i I 21.1 Neither party shall be in default under this Agreement if and to the extent that any I ! . failure or delay in either Party's performance of one or more of its obligations hereunder is i i caused by any of the following conditions, and either Party's performance of such obligation or \ ! obligations shall be excused and extended for and during the period of any such delay: act of God or nature, including an earthquake, flood, or hurricane; fire;. fiber, Cable, or other material failures, shortages or unavailability or other delay in delivery not resulting from either Party's I failure to timely place orders therefor; lack of or delay in transportation; govyrnment codes, I ordinances, actions, laws, rules, regulations or restrictions; war or civil disorde)'; strikes or other labor disputes; failure of a third Person to grant or to recognize an Underlying Right (provided that either party has made timely and reasonable commercial efforts to obtain the same); inability of iA YO to obtain access to the ZA YO System; or any other cause beyond the reasonable. control of ZA YO; or acts or omissions of third parties, who are not Affiliates, agents or under the . ! direct control of the affected Party (collectively, "Events ofF9rce Majeure'.'). ZA YO shall notify the County in writing of the existence of the event relied on and the cessation or terinination of said Event of Force Majeure, and ZAYO shall exercise commercially reasonable efforts to minimize the time of any such delay. Notwithst;mding anythIDg in this Section, Event of Force ;i Majeure shall not excuse non-payment under. this Agreement. ',! I 22. Dispute Resolution I 22.1 Dispute Resolution Process. Except as otherwise provided in Sections 18.I(e), 19.2(a) and 25.4(c), and this Section 22, any dispute, controversy or claim between the Parties relating to, arising out of, or in connection with this Agreement (or any subsequent agreements or amendments thereto),. including as to its existence, enforceability, validity, interpretation, J performance or breach or as to indemnification or damages, including claims in tort, whether. I arising before or after the termination of this Agreement (any such dispute, controversy or claim ! being herein referred to as a "Dispute") shall be settled by use of the following proce4ure: I "! I I. I (a) At the written request of a Party, .each party shall appoint a lmowledgeable, responsible representative to meet and negotiate in good faith to resolve any. I Dispute. The discussions shall be left to the discretion of the- representatives. Upon failure to ! I reach agreement, the representatives may: utilize other alternative dispute resolution procedures I such as mediation to assist in the negotiations. Discussions and correspondence among the ., Parties' representatives for purposes of. these negotiations shall be treated as Confidential Information developed for the p1ll'!loses of settlement, exempt from discovery and production, and without the concurrence of both Parties shall not be admissible in any lawsuit. Documents identified in or provided with such communications, which are not prepared for purposes of the negotiations, are not so exempted and may, if otherwise admissible, be admitted in the arbitration. (b) If hegotiations between the representatives of the Parties do not resolve ., the Dispute within a reasonable period of time or the Dispute is not reasonably capable of being .-! I resolved through such negotiations, the Parties may pursue all other remeqies at law or in equity. I .I I , I j 23. Assil!nment and Transfer Restrictions 23.1 County Assimment. Except as provided in Section 12.3, County may not sell, assign, sublease, sub-IRU or otherwise transfer all or any part of this Agreement or ofits interest 24 Anoka County Master Fiber IRU 8.14.1 0 '74 ..,. under this Agreement, or delegate any duties, burdens, or obligations arising hereunder, without ZA YO's prior express written consent, which consent may be given or withheld in ZA YO's sole discretion. A transfer, assignment or other action in violation of this Section 23 shall constitute a material breach of this Agreement imd shall be null and void. If any such consent is. given, County nevertheless shall remain fully and primarily lia~le for all obligations of County under this Agreement. 23.2 ZAYO Assbmment. Nothing shall be deemed or construed to prohibit ZAYb from assigning or otherwise transferring this Agreement, or any of its rights or interests herein, in whole or in part, or from selling, transferring, leasing, licensing, granting indefeasible rights of use in or entering into similar agreements or arrangements with other Persons respecting any Ducts or other conduit tubing, Cable, fibers (other than the County Dark Fibers), or constituting a. part of the ZAYO System. If in connection with any assignment of this Agreement byZAYO, ZA YO causes such assignee to contemporaneously therewith agree in writ~g to perform aU of ZA YO's obligations under this. Agreement, then ZA YO shaU be released from liability 'hereunder. ZA YO may encumber the ZA YO System provided any such encumbrance created after the date of this Agreement shall be subject to the rights of County'hereunder. ZA YO may pledge or assign its rights under this Agreement to its lei:J.der(s) for the 'purpose of securing financing for its construction, maintenance, or extension of the ZA YO System. 24. Renresentations..Warranties and Acknowled!!ll1ents 24.1 Renresentations and Warranties. By execution of this Agreement, each party represents and warrants to the other: (a) That the representing party hll1l full right and authority to enter into and I perform this Agreement in accordance with the terms hereof and thereof, and that by entering I into or performing under this Agreement, the representing party is not in violation of its charter \ or bylaws, or any law, regulation or agreement by which it is bound or to which it is subject; ; (b) That the execution, delivery and performance of tins Agreement by such , I Party has been duly authorized. by all requisite corporate action, that the signatories for such i Party hereto are authorized to sign this Agreement, and that the joinder or consent of any other 1 1 Party, including a court or trustee or referee, is not necessary to make valid and. effective the i execution, delivery and performance ofthis Agreement l?y such Party. , .i : 24.2 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ZAYOMAKES NO WARRANTY,.EXPRESS OR IMPLIED, WITH RESPECT TO WE COUNTY DARK FIBERS, THE ZAYO SYSTEM, WE CABLE OR ANY WORK PERFORMED OR TO BE PERFORMED UNDER THIS AGREEMENT, INCLUDING ANY :~ _1 AND ALL WARRANTIES OF MERCHANTABILITY QR FITNESS FOR A PARTICULAR I PURPOSE OR USE, AND ALL SUCH 'w ARRANTIES ARE. HEREBY EXPRESSLY . DISCLAIMED. T$ WARRANTIES SET FORTII IN THIS AGREEMENT CONSTITUTE THE ONLY WARRANTIES MADE BY ZA YO TO COUNTY WITH RES?ECT TO THIS AGREEMENT AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR iMPLIED. . 25. General 25 . Anoka County Master Fiber IRU 8.14.lCl _ 75 25.1 Binding: Effect. . This Agreement and each of the Parties' respective rights and obligations under this Agreement, shall be binding on and shall inure to the benefit ofthe Parties hereto and each of their respective pe~tted successors and assigns. , . 25.2 Waiver. The failure of either Party hereto to enforce any of the provisions of this Agreement, or the waiver thereof in. any instance, shall not be construed as a general waiver or .reIinquishment on its part of any such provision, but the same shall nevertheless be aI).~ remain in ! full force and effect. , 25.3 . Governing: Law. This Agreement shall be governed by and construed in' accordance with the domestic laws of the State of Minnesota, without giving effect to its principles of conflicts of laws. In addition, this Agreement shall comply iJ;J. alI.respects with the . terms and conditions of the Grant with respect to the Initial Service Order. If the terms of the Grant conflict with any term herein, the term shitll be read consiste;nt with the Grant All .; proceedings arising out of this Agreement shall be venued in a cou0: of competent jurisdiction in ! Minnesota. ; ! Comnliance with Laws/Standards. Both Parties shall abide by all Federal, State ; 25.4 I or local laws, statutes, ordinances, rules and regulations now in effect or hereinafter adopteq ; pertaining to this Agreement, the ZA YO System, and all facilities and services contemplated by : 'I this Agreement including without Iimifation laws, rules and re~ations governing construction ; . and operation of the ZA YO System and delivery of telecommunications services over such system including any l;equiied Minnesota Public Utilities Commission or Federal Communications Commission approvals. Any violation of such laws, statutes, ordinances, rules, i or regulations, or failure to obtain or maintain any .required license, certification or regulatory ., approval by either Party shall constitute a'material breach of this Agreement 25.5 Rules of Construction. ; (a) The captions or headings in this Agreement are striqtly for convenience ; i and shall not be considered in interpreting this Agreement or as amplifying or limiting any of its ! i content. Words in this Agreement which import the singular connotation 'shall be interpreted as :1 :1 plural, and words which import the plural connotation shall be interpreted as singular, as the . identity of the Parties or objects referred to may require. The words "inclurl,e," "~cludes," and : .. "including," shall be deemed to be followed by the' phrase "without ,limitation." The words "hereof," "herein," and "hereunder" and words of similar import .when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement Unless otherwise expressly provided herein, any agreement, instrument or statute defined or i referred to herein or in any agreement or instrument that is referred to herein means such I agreement, instrument Of statute as from time to time .amended, modified or supplemented, I including (in the case of agreements or instruments) by waiver or consent and (in the Cl,lse of statutes) by succession of comparable succe~sor statutes and references to all attacmnents thereto and instruments ~corporated therein. All accounting terms not otherwise defined in this Agreement will have the J:!leanings subscribed to them under genefally accepted accounting principles as in effect from time to tUne in the United States. (b) Unl~ss expressly defined herein, words having well known technical or 26 I Anoka County Master Fiber IRU 8.14.10 I 76 ; . .. trade meanings shall be so construed. All listing of items shall not be taken to be exclusive, but shall include other items, whether similar or dissimilar to those listed, as the .context reasonably requires. (c) The Parties hereby agree that the rights and remedies set forth in this 'Agreement shall be each Party's sole and exclusive rights and remedies against the othef party for any claims arising under this Agreement and felating to any breaches of the representations,. warranties or covenants contained in this Agreement. Notwithstanding the foregoing, the Parties i agree that if any breach or threatened breach of the representations, warranties or covenants of this Agreement would cause irreparable injury to a Party and money damages would not provi,de an adequate remedy to such party, then, in addition to the rights and remedies available to such PartY pursuant to this Agreement, such Party shall have the right to obtain equitable felief in the , fo~ of a temporary or permanent injunction or Qrder for a specific performance, without the requirement of posting of bond. (d) This Agreement has been fully negotiated between, and jointly drafted by the Parties. (e) All actions, activities, consents; approvals an4 other undertakings of the i Parties ~hall be performed in a reasonable and timely manner, it being expressly acknowledged I and understood that time is of the essence in the performance of obligations required to be I performed by a date expressly specified herein. Except as specifically set forth herein, for the I i \ purpose of this Agreement, the standards. and practices of performance within the telecommunications. industry in the relevant market shall be the measure of a Party's. performance. 25.6 Entire Agreement.. This Agreement constitutes the entire and final agreement l- and understanding between the Parties with respect to tlie subject matter hereof and supersedes . all prior agreements relating to the subject matter hereof, .which are of no further force or effect. The Exhibits, Schedules and Attachments referred to herein are integral parts hereof and are hereby made a part of this Agreement. To the extent that any of the provisions. of any Exhibit i hereto are inconsistent with the express terms of this Agreement, the terms. of this Agreement ;1 shall prevail. This Agreement may only be modified or supplemented by an instrument in writing executed by each Party and delivered to the Party relying on ~e writing. 25.7 Relationship of the Parties. The relationship between County and ZA YO shall not be that of partners, agents, or joint venturers for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between them for any purposes, including federal income tax pUrposes. County and ZA YO, in performing any of j. their obligations hereunder, shall be independent contractors or. independent parties and shall discharge their contractual obligations at their own risk; 'subject, however, to the terms and .1 conditions hereof. Neither party shall have the authority to bind the other party by contract or ! i I otherwise or to make any repfesentations or guarantees on behalf of the other Party. ZA YO ! I acknowledges and agrees on its own behalf and that of its subcontractors that it is not entitled to ! receive any of the benefits received by County employees and is not eligible for workers' or unemployment compensation benefits through the COunty. ZA YO also acknowledges and agrees, on its behalf and on that of its subcontractors, that no withholding or deduction for state or federal income taxes, FICA, FUTA, Of otherwise, will be made from the payments due ZA YO , 27 Anoka County Master Fiber IRU 8.14.10 71 I .~ I and that it is ZA YO's, and that of ZA YO's.subcontractors, sole obligation to. comply with the applicable provisions of all fedyral and state tax laws. i i 25.8 No Third-Partv RillhtS. Nothing in this Agreement is intended to provide any i i legal rights to anyone not an executing party of this Agreement except under the indemnification I 1 and insurance provisions. I ! 25.9 Severabilitv:. If any section, subsection, sentence, clause, phrase, or' other portion ,j . of this Agreement is, for any reason, de(:lared invalid, in whole or in part, by any court, agency, l commission, legislative body, or other al).thority of competent jurisdictiQn, such portion shall be deemed a separate, distinct, and independent portion. Such declaration 'shall not affect the validity o~ the remainfug portions hereof, which other portions shall continue in :full force and effect. 25.10 Remedies. Unless otherwise expressly limited or excluded herein, all remedies. ). provided in this Agreement are cumulative and non-exclusive, and are in addition to all other .1 . remedies availaple at law or inequity, including without limitation any actions for damages., i [ 25.11 Counteruarts. This Agreement may be executed in one or more counterparts, all , ofV{hich taken together shall constitute one and the same instrument. ! I 25.12 Audit Disclosure and Retention of Records. ZA YO agrees to make available to I , duly authorized representatives of the County imd of the State of Minnesota, for the purpose of , ! audit examination pursuant to Minnesota Statutes, Section l6B.06, ~y books, documents, I papers, and records of ZAYO that are pertinent to ZAYO's provision of services under this Agreement. ZA YO further agrees to maintain ~l such required records for three (3) years after ! receipt of final payment and the closing of all other related matters. ! 25.13 Affirmative Action. ZAYO shall comply with.its obligations under Executive Order 11246. I 25.14 Non-Discrimination. ZAYO agrees to. abide by all provisions of Minnesota I j Statutes;. Section 181.59, as amended,. entitled "Disc~ation on Account of Race, Creed, or .Color Prohibited in Contract." :I i I I I ! i I \ i 28 I Anoka County Mastc;r Fiber IRU 8.14.10 78 i I , , 1 1 In confirmation of their consent and agreement to the terms and conditions contained in j this :Agreement and intending to be legally bo~d hereby, the Parties have executed this i i Agreement as of the date ftrst above written. i I i I i S0~OF ~OKA: Zayo Bandwidth" LLC: i '[ , i i ~,~ it2/{~-/--- llj(~ Signature ! Signature I Dennis D. Berg, Chair Anoka County Board of Commissioners Title: f ./1M> :! i <0/, +- /,19 Dat(l: Y-/,7!;1J I Date ; ~, ! Signature , i Terry L., John on I I Anoka Coun Administrator Date 1/7/1 tJ I AP8::nn: . I ~, ~ .j AssIstant Anoka County Attorney , ! ..., . ~ Iri! {r/} Date . I i i 29 :j :i Anoka County Master Fiber IRU 8.14.10 .... ~. ,".. . ,.,79 I I EXHIBIT A I I Initial Service Order . I i i MASTER FffiERmU AGREEMENT i i By and Between I < .I ZAYO BANDWlD.TH, LLC 1 And COUNTY OF ANOKA, MINNESOTA DATED: .,200 This Service Order is for the installation and an IRU in Certain fibers as more fully described below, pursuant to the Master Fiber IRU Agre((ment dated ' , between j Zayo Bandwidth, LLC ("ZA YO") and County of Anoka, Minnesota ("County"). Capitalized I terms not defined herein shall have the meaning ascribed to them in the Master Fiber IRU Agreement. [. Scope of Work: I I For purposes of this Initial Service Order, "Core Backbone" shall mean the fiber optic cable and \ the fiber optic strands contained therein (including the County park Fibers), whi~h consists of . . underlying core. rings, and "Distribution Network" shall mean the fiber optic cable :md th!' fiber optic strands contained therein (including the County Dark Fibers), which consists ofunderlying distribution rings and distribution laterals. As of the Acceptance Date for the County Dark Fib~rs in this Service Order, on a site by site basis, ZA YO grants to County a Dark Fiber IRU in eight (8) strands of dark fiber optic cable .j throughout the Core Backbone as depicted on Attachment 1 and four (4) strands of dark fiber ; optic cable throughout the Distribution Network, as depicted on Attachment 2. connecting one hundred forty five (145) government, educational and public safety institutions within Anoka , County, Minnesota ("Anchor Institutions"). ,To the extent that more than one Anchor Institution , is located at the same address; all of the Anchor Institutions at such address shall share the :! designated number of fiber optic strmids, depending on whether the Anchor Institutions fall on i ! the Core Backbone or Distribution Network. The location and the address of each Anchor Institution is attached hereto as Attachment 3. The exact Route is subjeyt to change pursuant to i the Master Fiber IRU Agreement. The Zayo. System attached hereto as Attachment 1 and Attachment 2 will b~ owned by Zayo and not by a third party. I Personnel: Deployment schedule will be consistent with NTIA rules, and provided to the County. Zayo and County shall each designate l?roject managers to communicate about project status and schedule. Zayo and County shall hold periodic status meetings as mirttui.lly agreed for , the provision of project updates. Estimated Route Miles: Approximately 286 route ~es. Contribution: County shall contribute a total offifteeD perc~nt (15%) of the total Project cost, 30 Anoka County Master Fiber IRU 8.14.10 80 such contribution amount aggregating up to $2,867,698 pursuant to Section 4.1 and SectiQn 4.2 i of the Master Fiber IRU Agreement. i I , County Maintenance Fee: $1 O.OOO/month payable when the County, or any permitted assignee ! or. transferee, places into operation any County Dark Fiber per Section 4 of the Master Fiber IRU Agreement. CPIescalations will not be applied the County Maintenance Fee' under this Service ., Order. ; SerVice Term of County Dark Fibers: , ] This Service Order shall be coterminous with the Master Fiber IRU Agreement. . Special Requirements: County shall be responsible for ,securing in an expeditious manner all , necessary rights to access, occupy, and conduct typical telecommunication operations within each respective building, including but not limited to access agreements, easement, conduit/fiher :1 pathways, access fees, cross-connects beyond the Demarcation Points, coordination afany third 'i party owned location, and, where applicable, necessary space for ZA YO's fiber temiin~tion I panel. I I , I Ratification: This Service Order requested by County shall be governed by the Master Fiber I I IRU Agreement and shall form a single integrated agreement between ZA yo and County. . ' I Except as specifically set forth in ,this Service Order, the Agreement is hereby ratified and I affirmed in all respects and all other terms, covenants and conditions of the Agreement shall remain unchanged and shall continue in full force arid effect. The definition of "Agreement" in r the Agreement is hereby amended to include this Bervice Order, Attachment 1. Attachment 2 and Attachment 3. all attached hereto, are incorporated herein by reference and made a pari of this , Service Order. IN WITNESS WHEREOF and in confirmation' of their consent to the terms and conditions contained in this Service Order #1 and intending to be legally bound hereby, ZA YO I and County have executed this Service Order #1 effective as ofth.e date of execution by the last .. Party; " 'I ~OF ,,-",OU' . Zaro Bandwid,~h, LLC: of ,. (;7/J~ ' ,,_ - tf)A'~ Signature Signature / Delll1is D. Berg, Chair Anoka County Boardof Commissioners Title: ~ " 'f5/I'?-IIr6 Date: r II7/tD ; Date i r ! 31 Anoka County Master Fiber IRU 8.14.10 81 ./' , \ r; Signatu: e Terry L. JO,hnson \ .'. Anoka County Administrator Date #~ftJ N::.Form: ~ Assistant Anoka County Attorney ..... <f>J 17-IIP Date J i i ! I I r I ! i \ .1 .J i I , , , I ! 32 Anoka County Master Fiber IRU 8.14.10 , .. '82. .. ... . ....... ....... ..... ........ ... . . ,... ..... I I I ; EXIllBIT A-ATTACHMENT 1 Core Backbone I T~ ,. I .J 1 BETHEL . LINWOOD TOWNSHIP U:OWTHEN :\", @Cet:lM €l EASTBETll5L HAM LAKE i I i i i i I __ CQ!ll!.RlHG1 t .I _ CO!lE!lIHG~ 1 _ CQRS!llHG3 tl _ cAMBRIDGEe~ENSI9N I ..--,.. OAH; GRQve SUB-LOOP _ RAMSEYOOUNl'f EXTEN~ION ; 33 Anoka County Master Fiber IRU 8.14.10 83 EXHIBIT A-ATTACHMENT 3 Site List .8~! ~~.~o:t..,o:to:t"=' ~ '<l'lq' ~ o:t ..,.,. ~'<l''''' o:r q'''''':f o:t ",*,""o:t ..,....,. o:t o:t <lit' o:t V o:t Q ~ ~~~~~ ~ ~~ ~ ~ ~~ ~~~ ~ ~~~ ~ ~~~ ~~ ~ ~ ~ ~ ~ ~ ~ :j 13l'J:j l'l !;j l'l ~ tl l'l l'l ~ lj 13 tl tl tl ~:j l'l 13 !:l :q!:l!:l l,j l'J i I t iliili ili ili ~ ~ ili ~ ~ ~ ~ ~ ~ ili ~ ili ~ ~ ~ ~ ~ ~ ~ ~ i ~ ~ ffi m i ~ ili , ; ~ g ~ ~ ~ ! ~!l g ~ ~~ ~ ~ 1t 1t it '" ~ g 0; n ~,,~ 1t ~ ! it ~ ~ .b?1lbthlb. dj wth ffi w ~.:. ':'ablb Us ih:Bw ~ mil. lbtl.o I-il lb UJ .:. Ih J. .:. :i~:e2~ ~ :5:i :;;; :i ::2 :i;:::!:::: :lS22 2. :E:!:a:lE 2 ::3:i:::!: 2 :! 2 " M 01 N"" M N 01 - - 01 - _ N _ ~ ~ _ '" ~ ~ "'I';;,,';; ~ '" 'll~ ~ - 11 ~ ~!1- Ii N '" '" Ii " '" - Ii T' IV dI ... ~ _.... - - - - - 'OJ D <:I'" ... ... 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This Service Order is for the installation or utilization of _ strands of dark fiber optic , cable, pUrsuant to the Master Fiber IRU Agr~eme).lt dated ' " between Zayo Bandwidth, LLC ("ZA YO'') and ("County"). i I Scope of Work, including System Route and County Route: ! (Metro description,) I ! ~ Demarcation Points: , Street Address of Demarcation Point 1): Description of building entry and . specific route and requirements. I Street Address of Demarcation Point 2: Description of building entry and specific route and requirements IRU Charge: $ per ~ payable on the County Maintenance Fee: $ , ! Service Term of County Dark Fibers: years from Acceptance Date. ! I Estimated Route Miles: I ,. ;j Special Requirements: County shall be responsible for securing all necessary rights to 1 access, occupy, and con4uct typical telecommunication operations withiueach respective I I building, including but not limited to access agreements, access fees" cross-connects beyond the. Demarcation Points, coordination at any third party owned location, and, I where applicable, necessary space for ZA YO's fiber termination panel in an 'expeditious manner. In the event that County has not provided any of the items in the foregoing sentence in time to allow ZA YO to complete w?rk at any location, ZA YO may continue .1 58 '.~ Anoka Coun1;Y Master Fiber IRU 8.14.10 . ; 89 with the Acceptance Date procedures to the extent possible and invoice for the services i under this Service Order as if all locations were completed. I i i IN Wl1NESS WHEREOF and in confirmation of their consent to the terms and i , conditions contained in this Service Order #1 and intending to be legally bound hereby, ! ., ZA YO and County have executed this Service Order #1. effective. as of the date of execution by the last Party. COUNTY OF ANOKA: Zayo Bandwidth, LLC: Signature . Signature Dennis D. Berg, Chair Anoka County Board of Commissioners Title: Date: ! ,:Date , Signature Terry L. .Johnson ; Anoka County Administrator :1 HI H' , (.. I Date i . Approved as to Form: i Assistant Anoka County Attorney ':j :. Date 59 Anoka County Master Fibe~ IRU 8.14.1 0 , ; 90 -, , EXHIBIT C i NOTICE OF COMPLETION {current date} . i Company Name Procurement & Contracts Administrator Street Address City, State and Zip re: Master Fiber lRU Agreement ("Agreement")-1-1200_ detailing (X) fibers in a segment and/or ring configuration connecting ~ (x) network tie-in points running about _ miles ar.ound the ZAYO loop. {generic i contract description} I I \ . Defll' Sir or Madam; ( This letter is your Notice of Completion (NOC) that the service described in the contract i titled above has been installed and completed. Port assigmnents and test results have been delivered to {customer names of Operations personnel}. i , Please sign below indicating. your acceptance and return this document to the address . noted above. Per terms of the Agreement, if we do not reeeive your acceptance signature i then the default acceptance is assumed and billing will begin on {current date plus 10 I days}. If you should have an operational issue; please contact our NCC at . For billing or other administrative issues; contact ap@zavo.com. Best regards, Accepted by: ; j Name & date , ; 60 ~oka County Master Fibe~ IRU 8.14.10 .l 91 -' ., ., EXHIBIT D i MONITORING AND MAINTENANCE SPECIFICATIONS AND PROCEDURES , 1. GENERAL i This Exhibit describes the policies and procedures that will be utilized to monitor and maintain the ZA YO System. ZA YO shall ensure that the System is maintained .according i . to the Monitoring and Maintenance Specifications and Proc~dures specified herein, 1 through application of commercially reasonable and accepted industrY standards, and iJ:}. j accordance with manufacturers' specifications. The purpose and result of monitoring and ., maintenance shall be to assure (in the case of routine maintenance), or restore (in the case I of non-routine maintenance) the functionality of the ZAYO System.ZAYO ~eserves the right to modify procedures as appropriate to ensure that performance specificlitions ,are achieved. 2. ADMINISTRATION I ZA YO shall maintain a comprehensive database ("Database") of all relevant information associated with the ZA YO System to e)JSure prompt identification and appropriate response to routine and corrective maintenance situations. The Database shall identify and document the ZA YO SystertJ. and all facilities installed in ZA YO System, including but not limited to: County's fiber optic cable type, number and color coding of fiber . I strands, origin and destination of eadh fiber strand, identification of in-use cables, technical requirements and specifications. I 3. ' ZAYO RESOURCES ZA YO will perforni cable and conduit maintenance and repair around the clock, on a twenty-four (24) hour per day, seven (7) days per week basis (24x7). ZA YO shall be available during normal business hours (7:00 a.m.to 5:00 p.m.) and during off-hours (before 7:00 a.m., after 5:00 p.m., weekends and holidays). . ZAYO shall establish a ZAYO System Maintenance Center and assign a dedicated maintenance manager to oversee and coordinate day-to-day maintenance activities. The Maintenance Center shall be equipped to receive ZAYO System alarms twenty-four (24) i hours per day, seven (7) days per week, three-hundred-sixty-five (365) days per year. The maintenance manager shall be responsible for ensuring that preventative, corrective, and I . emergency maintenance activities are carried out in a timely fashion and that maintenance activities are coordinated with County and any of County's users. ZA YO shall provide qualified personnel, office services, vehicles, and all tools and. materials required for the safe and proper performance of maintenance procedures. Specifically, ZA YO shall retain an? maintain all appropriate equipment necessary for routine and preventative maintenance as well as corrective maintenance and emergency . restoration. ZA YO shall have an Optical Time DOlIlain, Reflectomoter (OTDR) and ; 61 Anoka County Master Fiber IRU 8.14.1 0 92 , .) ." oj fusion splicing equipment with valid and current certification, and all other equipment ; shall be in proper working Qrder with current calibration at all times. 4. ROUTINE MAINTENANCE . ZA YO shall perform routine and preventative maintenance of the system, including the following: ' . . ZA YO shall patrol the ZA YO System Route on a regularly scheduled basis. During these patrols, ZAYO will ensure that "Call-Before-You-Dig" (CBYD) right-of-way marker signs are in place ffi!.d undamaged. Damaged andloi missing signs will be replaced. I . ZA YO shall establish membership in the Gopher State One Call Program, 'and ! perform all cable and conduit locate activities required to protect the ZA YO System. I . ZA YO shall use reasonable efforts to ):lave a ZA YO representative attend the annual utility conference, provided that Co~ty provides adequate prior notice. 5. NON-ROUTINE MAINTENANCE ; All maintenance other than Routine Maintenance as described in Section 4 aPove shall be deemed to be Non-Routine Maintenance. ZA YO shall provide telephone number(s) .to the County for the purpose ofreporting Service Affecting Conditions to ZA YO. When reporting a Service Affecting Condition, the County shall provide the following information to ZA YO: i I' . Type/nature of problem I I Location of the problem. i . i I · . .Any other pertinent information that may help in identifying and resolving the :1 problem in an eXl'edient manner and to ensure the appropriate response is initiated. ! When ZA YO identifies or is notified of a problem via ., .j System alarm, County, or Facility Owner notification, ZA YO will initiate repair/response activities as appropriate and necessary for the type of problem being reported. , I ZA YO shall have its first maintenance representative on site within two (2) hours 3fter , the time ZA YO becomes aware of a Service Affecting Condition (whether same occurs within normal business hours or after-hours, weekend OJ: holiday), unless delayed by circumstances beyond its reasonable control. ZAYO will provide effective follow-up information t9 County dn the m~tenance action until the issue has been resolved., In the event that ZAYO dispatches personnel for a fiber outage or other problem caused by County's Equipment or personnel, ZA YO will invoice and County agrees to pay ZA YO .chargtjs for time and travel associated with such dispatch. Payment will be made together 62 , Anoka County Master Fiber IRU 8.14.10 93 , n ::' r~ A ~, . with the current monthly invoice. ~ 6. FIBER OPTIC CABLE REPAIR AND RESTORATION When undertaking repairs of major fiber optic cable failures, ZA YO shall work to restore all traffic as quickly as possible. lInmediately.upob. arriving on the site of the cut, ZA YO will determine the course of action to be taken to restore the cable and/or conduit and begin restoration efforts. ZA'(O shall use reasonable efforts to effect repairs of mlljor failures within six (6) hours after the mainteI}ance representative arrives at the site of the problem. Such repairs may be temporary. Within one (1} business day after completing any temporary repair or restoration, ZA YO . shall commence planning permanent repair. ZA YO shall notify County of its per1I1anent repair plans and implement such repairs within an appropriate time thereafter. ZA YO shall strive to repair "in~use" fibers first and repair those fibers not currently in-use during permanent restoration activities. ZA YO shall perform permanent repair and restoration of the ZA YO System. . Should a cable failure affect multiple Countys, it is understood that the restoration , sequence will occur in a logical order and will not disfavor any Person, and that in-use ! fibers will be restored prior to inactive fibers. . County 'is responsible for notifying ZA YO . J ! which fibers are in-use and which are not in-use. This information should Qe contained in the Conduit System Database, with updates provided by County as necessary. 7. COOPERATION , J Both ZA YO and County shall cooperate :fully to resolve failures of and/or impairments to the ZA YO System in an expedient and efficient manner. Such cooperation shall include, but not be limited to, notification of the other Party after becoming aware of the need for . , either scheduled or unscheduled maintenance activities that may affect County's ability to provide service over the ZA YO System and sharing of information relevant to the operation, maintenance and repair of the ZA YO System. ZA YO shall notify County ten . (1O} days prior to any scheduled Maintenance activity that may affect County's ability to provide service over' the ZA yo System. County shall notify ZA YO as soon as reasonably possible of any request for scheduled Mainten,ance it may. hav\'). In the event that a scheduled Maintenance activity is canceled or delayed, the scheduling PartY shall inform the other Party so that the Maintenan'ce activity may be rescheduled. ZA YO shall notify County as soon as reasonably possible after becoming aware of the need to perform.unscheduled Maintenance that may affect County's ability to provide service. overtheZAYO System. I 8. OTHER ! Unless expressly provided elsewhere in this document, ZA y.o shall not be responsible i ! for maintenance andlor repair of County~' electronic, optronic, and other equipment ! utili?;ed in conjupction with operation of its individual system. ; .. 63, J i Anoka County Master Fiber IRU 8.14.10 i 94 i ;"'\ ! '.';.. , I . .....; I , , ; ! ; EXHIBIT E I ! METROPOLITAN (LOCAL LOOP) NETWORK FmER ACCEPTANCE TESTING PROCEDURES AND STANDARDS The intent of this Exlrlbit is to identify the fiber acceptances testing procedures and (j standards used .within the Zayo's metropolitan networks. Deviations from these specifications may occur if Zayo acquires a portion of the Zayo System from a third party I pursuant to the Agreement. 1. All splices shall be fusion spliced. Mechanical splices are only allowed during temporary restoration and will be replaced with fusion splices. , .. 2. After end-to-end connectivity on the fibers has been completed, bi-directional OTDR ":i span and power meter testing will be completed. Zayo shall perform tests after the I fiber cable is installed and the splicing enclosures have been completed and are in T their fmal resting configuration with the cable vault or hand hole covers closed~ This I ensures that no micro or macro bending problems with the cable or fiber strands will , : contribute to the loss/attenuation measurements. 3. Power meter tests shall be completed to verify. and insure that no fibers have been crossed at any of the splice points within the network. Zayo shall test ,and record ,_ power level readings on all fiber strands in both directions of transmission (bi- I ! directionally) using the 1310 & 1550 run wavelengths. i I 4. All OTDR and power meter tests shall be completed as follows: I a. All OTDR traces shall be taken from both ends of a section (between adjacent I locations) and recorded using the 1310 run & 1550 run wavelength. I Loss/attenuation measurements for each splice point from bQth directions shall .': I ! be taken and recorded. b. The end-to-end loss value as measured with an industry-accepted laser source. and power meter should 4ave an attenuation rating of less than or equal to the following: , (1) At 1310 run: (0.35 dB/km x km of cable) + (number of connectors x 0.50) + (0.15 x number of splices). (2) At 1550 run: (0.25 dB/km x km of , cable) + (number of connectors x 0.50) + (0.15 x number of splices). ,c. Zayo's loss/attenuation objective for each fiber optic splice is 0.15 dB when measured in one direction with an OTDR test set (excluding connector loss, which is typically 0.50 dB per mated CQnnector pair). If after three attempts this parameter is not met, the splice will be marked a;; Out-Of-Spec (OOS) and the Splice will remain provided the average loss/attenuation value of all splices on an individual fiber basis shall not exceed 0.15 dB for the entire ring or subsystem. d. For bi-directional OTDR testing, the distance from Location "A" and Location' "Z" shall be recorded for each splice point. The loss/attenuation at each splice point shall be recorded at both wavelengths (1310 run & 1550 run) ,in ~ch 64 Anoka County Master Fiber TRU 8.14.10 95 l .. ! I ~t... i ;t . I ,'f '. I ! .. . \ direction. Zayo shall then.average the two readings to obtain the final average splice loss/attenuation for each splice point of each fiber strand within the fiber ; , optic cable. e. Each fiber strand color must be recorded along with its buffer tube color or the ribbon color. The laser source transmit power level using the 1310 & 1550 lUll wavelengths will always be recorded together with the receive power level .~~ reading at the rec~iving end of the test. I 5. .OTDR traces will be taken and splice loss measurements recorded. Zayo will store . OTDR traces on electronic media. Loss measurements will be recorded using an i industry-accepted laser source and a power meter. Copies of all data sheets ai:td I , tables as well as electromc files with all traces will be available to Lessee. I ., ., :1 1 6. Following emergency restoral, Zayo personnel shall perform span test documenting i I. end-to-end attenuation measurement of each fiber at 1310 & 1550 lUll wavelengths. ., :~:I Upon permanent repair, new splice loss readings should be no greater than the .1 original splice loss specifications. ! i .i I ., I , 1 I I i I, ! , i I ! I I I i I 1 \ i , :1 ;or I :j 'I I i ; .~ i J ~J ., I 65 ! Anoka County Master Fiber IRU 8.14.10 , 96 @ 1685 CROSSTOWN BOULEVARD N.W, . ANDOVER, MINNESOTA 55304. (763) 755-5100 FAX (763) 755-8923 . WWW,CI.ANDOVER.MN.US To: Mayor and Council Members CC: Jim Dickinson, City Administrator . David D. Berkowitz, Director of Public Works/City Engineer '1)i:iB From: Kameron Kytonen, Natural Resources Technician Subject: Discuss Emerald Ash Borer Draft Management Plan/l0-32 - Engineering Date: March 29, 2011 INTRODUCTION The Emerald Ash Borer (EAB) is a devastating insect that attacks all species of ash trees. It was found in Minneapolis in 2010, and threatens to spread into other parts of Minnesota. Since first being found near Detroit, Michigan in 2002, this insect has killed millions of ash trees in Michigan, Ohio, Indiana and some Canadian provinces. Staffhas drafted an EAB Management Plan for review, and will summarize the main points of the plan at the meeting. Staff will bring this item back to future workshops for additional discussion. DISCUSSION The following are some points of discussion: · The City may need to provide a marshalling yard, which could be used for storing and processing diseased wood. Anoka County may create one for the whole county. EAB spreads primarily thru infected firewood being transported from county to county; · The diseased tree ordinance will need revision to cover EAB; · The City will need to decide if chemical treatments should be used on select ash trees; and · An EAB budget may need to be created to cover costs of management. ACTION REQUESTED The City Council is requested to review the draft EAB Management Plan and provide comments as needed. Respectfully submitted, ) . ~:t= Natural Resources Technician ./' Attach: Draft Emerald Ash Borer Management Plan ./ "EAB Lessons Learned in Michigan and Ohio" handout DRAFT City of Andover Emerald Ash Borer Management PlanlProgram PURPOSE It is in the City of Andover's best interest to have a program in place for managing the Emerald Ash Borer (EAB). Although it has yet to be found in the City as of the printing date of this document, a proactive approach should help spread the costs associated with an eventual EAB outbreak over a manageable time period and limit the detrimental effect on property value, quality of life and the environment. APPLICABILITY This management plan is applicable to all public and private properties within the City. EAB COORDINATOR The Natural Resources Technician (NRT) shall be responsible for implementing this program and seeing that the provisions are carried out. INTRODUCTION EAB (Agrilus planipennis) is an introduced pest that has now been confirmed in fourteen (14) states, including Minnesota, and two (2) Canadian provinces. It was first discovered near Detroit, Michigan in July 2002. Since its initial finding, millions of ash trees have died and it's costed states, municipalities, nurseries, forest industries and property owners millions of dollars. EAB attacks all species of ash trees (Fraxinus spp.) found in Minnesota, which include green ash (Fraxinus pennsylvanica), black ash (Fraxinus nigra) and white ash (Fraxinus americana). This is of great concern because Minnesota is home to more than 900 million ash trees statewide. As ofthe printing date of this management plan, EAB has been confirmed in three (3) Minnesota counties: Hennepin, Ramsey and Houston. While it is impossible to accurately determine when this pest will arrive in Andover, it is inevitable it will arrive if it isn't here already. It is possible that this pest has moved beyond the known infestation sites and has yet to be identified. The adult beetles feed on ash leaves, but do little damage. The larval stage (immature stage) of EAB kills trees. Larvae feed on the inner bark of trees, disrupting its ability to transport water and nutrients up to the canopy. As the number of larvae in a tree increases, less and less water and nutrients reach the canopy, resulting in dieback in the canopy. Initial attacks tend to be in the upper portions of the canopy. By the time visible symptoms are obvious, the population of EAB has grown and likely spread to other ash trees in the area. Signs/symptoms ofEAB that can help detect an infestation include: . Increased woodpecker activity/damage . Bark splitting (vertical slits) . Canopy dieback . D-shaped exit holes created by adult insects as they emerge from the tree . Epicormic branching/shoots near base of tree . Serpentine (s-shaped) larval galleries that are packed with frass DRAFT EDUCATION The City will continue to educate residents and elected officials concerning EAR Tools that can and will be utilized include newsletter articles, segments on QCTV, the website and presentations to residents and various groups/organizations. TRAINING Applicable City staff will be trained by the EAB Coordinator as needed. This will allow staff to effectively identifY the presence of EAB in the City. In addition, this will garner proper planning, responsible removal and disposal and improved overall management. INVENTORY Currently, the City does not have a tree inventory of its public or private urban and community forest. There are many different types of inventories that can be done. Many are cost effective. One can be accomplished based on the desires of the City. Thus, the City may want to consider having a professional consultant perform some sort of inventory, whether it be a complete inventory, parks only, ash only or a sample. This will allow the City to determine what is at stake, help determine which areas should rank as priority management areas and help with overall planning efforts. The NRT has begun a "random" inventory of ash trees on public and private properties. It is a form of ash only inventory. While in the field, existing ash trees are surveyed. It has involved taking weigh points with a GPS unit and collecting general data about the size and condition of the trees. Other pertinent information collected is the number of ash trees in the area and management recommendations. Benefits of an inventory include: . It's difficult to know what's at stake until you know what's out there 0 To help determine the percentage of public and private trees that consist of ash species, which will help clarifY the true impact EAB will have on Andover's urban forest . To give a better budget estimation for maintenance (trimming, removing, planting) . To locate priority areas for re-planting . To forecast what may be involved for enforcement of infected trees on private property . What volume of wood will need proper disposal and utilization? DETECTION AND MONITORING Staff will continue to inspect public and private properties, both on request and during routine inspections about the City. Suspect trees will be carefully analyzed. Sampling mechanisms to be used will be consistent with Minnesota Department of Agriculture (MDA) guidelines and will include but not be limited to visually looking at all parts of the tree, branch removal and bark shaving with a drawknife. Staff from the MDA will be contacted if EAB is suspected or confirmed in a tree. If staff catches an early infection which is limited to a few trees, it may be limit the rate of spread, potentially save more trees and may save the City money in the long run. DRAFT As in the past, the City will volunteer to have purple traps set up in various public and private properties around the City. These are set by staff from the MDA, and attract adult beetles. The beetles land on the traps and are unable to flyaway because of the sticky substance used. ORDINANCE REVISION The City will revise its diseased tree ordinance to include EAB as a threat to the urban and community forest. The ordinance amendment will specify requirements for proper management of EAB infested trees, including but not limited to removal and disposal, transportation of firewood, chemical treatments and enforcement. ASH TREE REMOVAL . Public trees (as authorized by the EAB Coordinator): 0 Any boulevard tree found to be positively infected with EAB will be scheduled for removal 0 Any park tree in a landscape setting infected with EAB will be scheduled for removal 0 Trees in wooded areas in a park that are positively infected with EAB and deemed a safety hazard will be scheduled for removal. All other cases will be looked at on a case by case basis 0 Any stressed tree may be scheduled for removal 0 Any tree may be scheduled for removal, if determined appropriate; reasons may include under powerline, safety hazard, near infection center, etc. . Private trees (as authorized by the EAB Coordinator): 0 Any tree found to be positively infected with EAB, unless property owner shows proof that tree has been properly treated with MDA approved chemical (details on deadlines, disposal options and sanctions for non-compliance will be in the updated diseased tree code) will be required to be removed and properly treated by the property owner. TREE DISPOSAL AND UTILIZATION There are many options for proper disposal of wood positively infected with EAB. Approved methods follow: . Transporting the wood to an approved disposal site in Anoka County . Chipping the wood to dimensions no greater than I" x I" x I" . Burning . De-barking (removing all bark and at least OS' of outer wood) . Treatment (including heat treating, kiln drying, fumigating, seasoning or another method approved by the MDA) These methods will be followed through with by the City and be required for private property owners. Details will be in the updated diseased tree code. DRAFT The NRT will continue to seek creative, cost effective ways to utilize ash trees. Examples may include finding a small scale logger who has a special market for ash or a property owner with a sawmill who makes unique products out of ash. PLANTING Ash will no longer be planted on public properties in the City. Ash are no longer recommended to be planted on private properties and have been removed from the "City of Andover Tree Planting Recommendations" handout. Staff will plant and encourages to be planted other species listed on the above handout. Native species found from common seeds sources are highly recommended. The City will also try and plant a variety of different species, as the more diverse the plantings, the better overall benefit and the less likely damage a potentially new insect or disease outbreak will occur. This is because they tend to target a certain genus or species of trees. CHEMICAL TREATMENTS There are many forms of treatment and types of insecticides that can be used to help save healthy and infected ash trees. However, under the majority of cases, treatments will not be recommended on public property. The main reasons are: . As ofthe printing date of this document, it hasn't been found in Andover yet . Frequency of treatments needed (some are needed annually or every two years) . Overall lack of "high value" trees . High cost Staff will help residents determine whether or not chemical treatments are warranted for private trees. MDA doesn't recommend treatments until an infestation has been found within IS miles of Andover. The EAB Coordinator will provide consultation and help property owners devise treatment plans. Literature will be provided, including the handout "Homeowner Guide to Insecticide Selection, Use and Environmental Protection." Staff will advocate for responsible application. For those chemicals that can be done by a non-licensed person, "do-it-yourself' property owners must read and follow directions so the environment is not compromised. For those chemicals that require professionals, only those that are Certified Pesticide Applicators shall be used. BUDGET The City currently has a Forestry Fund. It may be necessary to create a new category called "EAB Fund" to cover the likely costs attributed to an eventual EAB outbreak. The fund could be started in 2012 Budget with a $5,000 allotment. Each year, an additional $5,000 could be added. The money could be used to fund an inventory, tree removal and disposal costs and tree planting. The City needs to do more research on this and determine where the money would come from and how much should be put in the fund. The NRT will continue to seek grant opportunities, which may help cover some ofthese costs. DRAFT P ARTNERSIDPS WITH OTHER ENTITIES The City has and will continue to work with several other entities. Examples include the MDA, DNR, Minnesota Shade Tree Advisory Committee (MnSTAC) and neighboring communities. The NRT is a board member of MnSTAC and currently chairman of the Forest Health Committee. It is currently working on hosting a discussion on EAB for communities around the state. The City held a meeting with neighboring communities in August 2009, and plans to hold more meetings in the future. This will allow for idea and resource sharing, which will result in stronger, more consistent and more cost effective programs. These partnerships will also help alleviate the potential effect ofEAB regionally. Included local units of govermnent include the Cities of Blaine, Coon Rapids, Ham Lake, Ramsey and Anoka County Parks. SUMMARY It is clear that EAB poses a serious threat to Andover's urban and community forest. The City will implement this EAB Management PlanJProgram to the extent feasible based as the budget permits. The steps outlined above are based on current knowledge of EAB. This management plan is dynamic and subject to revision(s) as new information about EAB becomes available and/or as new treatment options are identified. Furthermore, this plan is also subject to revision should state and/or federal policies necessitate plan updates. 2011 TASKS . Present to/Train City staff; . Deliver "information packet" to applicable PW staff . Send mailing to "Andover Licensed Tree Care Companies" . Meet with neighboring communities (Ramsey, Ham Lake, Blaine, Coon Rapids and Anoka County Parks) . Update ordinance . Continue inventory . Remove stressed ash trees in boulevards and parks . Have booth and/or presentation at Home Show . Establish Budget to be included in the City 2012 Annual Budget CONTACTS EAB Coordinator: Kameron Kytonen, Natural Resources Technician: 763-767-5137 k.kytonen@andoverrnn.gov www.ci.andover.mn.us MDA Arrest the Pest Hotline: 651-20 1-6684 EAR Lessons Learned in Michigan and Ohio by Laura Wyall, Urban Forestl)' Communications Specialist and Richard Rideout, State Urban Forestl)' Coordinator DNR DMsion of Forestry The Wisconsin DNR Urban Forestry staff and two supervisors recently spent 1:\",0 days visiting communities in southern Michigan and northern Ohio to learn tirsthand how commnnities are responding to emerald ash borer infestation, Michigan DNR and Ohio DNR and Extension staff alTanged for the group to meet with representatives of eight communities, each cmploying an assortmcnt of managemcnt options to addrcss staggering trcc mortality and critical wood utilization issues, Several rccurrent themes cmerged as communities shared lessons they have learned, Define roles. Many players are involvcd whcn EAB comes to town, It is critical to agree on specific roles for fcderal, stale and local govemmenl staff and for business, nonprolits, volunteers, etc" to ensure all resources are engaged and to avoid overlap, miscommunication or turf battles, Ordinances or policies de lining authority and responsibility should be in place before EAB hits. Start planning early. Unfortunately most communities, even in Michigan and Ohio, are in denial until an infestation hits locally, When EAB is finally detected, populations often surge and management shifts quickly into crisis mode, Trce rcmovals beeome a major workload, quickly overeoming resources and staff capabilities, Planning before this happens is eritieal. Seeing is believing. Support trom electcd otlieials for this early planning is essential, but very tough to gcl. The morc you engagc eleeted officials through prescntations, sitc visits and bus trips thc more succcssful you'll be. Inventories, even if jnst ofthe ash population, are critical 10 early planning efforts and foreeasting budgets for labor, equipment, sta:lTtraining and restoration, This was universally stressed by every community we talked to, Visual surveys should start at the tops of trees. While tree girdling is currently the best method available for systematic detection surveys, an infestation may still go undetected. Ohio and Michigan communities are finding infestations tirst in the tops of mid-sized trees before any symptoms are visible f\-om the ground, So, in addition to the state's detection surveys, to assure that we find EAB early, it is important tor arborists to be looking for the characteristic D-shaped holc and other signs of EAB during their routine treetop work in ash, Wood disposal must be addressed. Additional planning is needed for wood utilization, Profit is uniikely, but utilization can minimize disposal issues and eliminate or offset disposal costs. Funding will be needed, period. Communities will need to :lind fnnds to cover the huge expense of equipment, removals, disposal and replanting, One comml\l)ity set up a trust fund for donations, Another deferred the purchase ofa Slmillion tire engine for :live years to pay for the cost ofremoving ash, EAB will be a public safety issue that tnllnps even fire protection! The loss of tree canopy \vill also increase other expenses. One comml\l)ity fonnd that their water bills spiked upward 33% due to increased watering of previously shaded la\Vlls and gardens now baking in the sun, Storm water runoff and electricity use tor air conditioning could also increase. Waiting and doing nothing will be more expensive. It costs two to three times more to remove a completely dead ash tree versus a declining but live tree, Waiting until EAB hits before you make a plan to remove, dispose of and replant your ash will leave you with no contractors avai lable, no markets for yoU!' waste wood and no trees to buy and plant. Communities that planned ahead have fimds to replant, Thosc that waited to react do not. The group also visited a Michigan community that is treating public ash trees with systemic insecticides and a cooperative ash research study conducted by The Ohio State University and the City of Toledo, located on a city boulevard, Results ofthese studies and further conclusions drawn from our trip will be shared in :lhture issues, To get your community started planning for EAB, visit our EAR Toolkit Web site at http://dnr,wi,gov/torestrv/utieab/ or contact your regional urban forestry coordinator (see page] 6), To stay CUlTent on EAB, subscribe to the VVisconsin Urban ForestlY Insider e-newslener at ht!n;/L(jI!L~~iRQ:ylB)r~sttyj_\I(l or visit the Wisconsin EAB Web portal at I1Itp:lfnQ(OI?J<t?s.hborer.wi,uov/, /\ EAB Lessons Learned in Michigan and Ohio \:k> Section 2,[0] ..r.."._.~-,-'" @ 1685 CROSSTOWN BOULEVARD N.W, . ANDOVER, MINNESOTA 55304 . (763) 755-5100 FAX (763) 755-8923 . WWW.CI.ANDOVER.MN,US TO: Mayor & Council Members CC: Jim Dickinson, City Administrator FROM: David D. Berkowitz, Director of Public Works/City Engineer SUBJECT: Fence Permitting Discussion - Engineering DATE: March 29, 2011 INTRODUCTION The City Council is requested to discuss the fence ordinance and determine what the intent of the ordinance should be and how it should be properly stated. DISCUSSION As discussed at the January Workshop all new fences are not allowed in drainage and utility easements with public utilities, ponds or wetlands or those needed for access. To install a fence a fence permit is required and at that time allowable fence locations are determined and approved. The intent or goal of the restriction is to ensure the design of storm water runoff system functions properly, provide maintenance access to and around ponding areas, protect wetlands and ensure that fences are not placed over existing underground utilities. At the January Workshop the City Council felt that in urban areas fences should not be allowed in drainage and utility easements in urban areas that meet the intent or goals listed above, but to look at being more flexible in rural areas. Attached are the meeting minutes from the January Workshop. The Public Works Committee met in February to discuss the fence item and after the meeting the attached draft revisions were prepared by staff and the City Attorney. Based on the draft, comments and revisions were received from the Committee Chairman Jacobson and Committee member Trude. They are attached for discussion. The City Attorney will attend the workshop to answer any questions the Council may have. ACTION REOUIRED Staff is requesting direction from the City Council on revisions to the current fence ordinance to provide clarity and flexibility in placement of fences. Respectfully submitted, {J~O.~ David D. Berkowitz Attachments: January Workshop Meeting Minutes~raft Fence Ordinance~Public Works Committee Comments./ Andover City Council Workshop Meeting Minutes -January 25, 2011 Page 7 Mr. Butler suggested notifying the area around a park when and why a park is being pulled and asking what should replace that park. Councilmember Trude recommended Mr. Starr bring forth to the Council a proposal for replacement of the two parks that are scheduled for replacement this year. Mr. Berkowitz summarized the City Council's direction as follows: Staff will revisit the 'park dedication study; the Park and Recreation Commission will come up with a philosophy on how park replacement and renovations for rmal and mban parks are done; a survey by the Park and Recreation Commission will be sent out to the neighborhood; a replacement recommendation from the Park and Recreation will go to the City Council; City Council will approve. FENCE PERMITTING DISCUSSION As directed by the Council Mr. Berkowitz presented examples of pmiicular lots that could be impacted by allowing fences in drainage and utility easements. He provided scenarios of situations where fencing has encroached the drainage utility easements in ponding or wetland areas. He said it is very difficult to get back to the drainage areas for illmntenance. Councilmember Jacobson asked how often Staff needs to use the access to these areas. Brian Kraabel, Utilities Manager, answered it depends on the situation. Councilmember Trude asked what gets cleaned. Mr. Kraabel explained sludge and silt are cleaned to help prevent the ponds and wetlands from being choked out. Mr. Berkowitz further explained once infiltration design criteria is put into place access will be more frequent and encroachments on the easements will be a bigger problem. Fences need to be put outside the wetland areas. Fences on the back of the propeliy restricts the Utility Department's access to work around these ponds. Councilmember Jacobson suggested putting up a gate to allow access, or possibly a split rail fence with a removable section. Mr. Berkowitz responded if that is allowed, the homeowners tend to believe they can use the property right up to the fence. There must be room to bring in equipment. Councilmember Trude said there is confusion because people believe there is a propeliy right, and it is theirs on the deed. Mr. Berkowitz stated the City has rights of the underlying easement. The City is responsible to ensme the storm sewer system functions properly. Andover City Council Workshop Meeting Minutes -January 25, 2011 Page 8 Councilmember Jacobson suggested letting the residents know about the fence ordinance when they come in for a fence permit. Although, some residents may not come in for a permit. Mr. Dickinson explained the beginning of the fence permit. In one area residents were putting in docks and retaining walls in the easement. The City used its easement to dewater and the residents came into Council meeting to ask when the City will fix the problem. Their retaining walls were under water. The City explained they have access and control of the easement. The residents wanted the wetland or drainage pond to look like a lake. Mr. Berkowitz stated the courts do recognize easements. It is recorded as part of the plat. Councilmember Trude suggested making these areas outlots so nothing can be done with them. Mr. Berkowitz commented too much encroachment has been allowed for too many years, and now it's difficult to deal with from a maintenance perspective. It costs too much for the City to have to go iri and replace someone's fence, sod, or irrigation system. Some residents have created no entrarice to some of these ponds. The ordinance may need to be written differently. Discussion took place whether reducing the front setback would be feasible, reducing street width and creating more space for the back yard, and the impact that would have on road maintenance and emergency vehicles. Mr. Berkowitz stated the ordinance should be reworded, but he suggested the City . Attorney work with Staff to help ensure the wording is very clear. Mr. Berkowitz said the landowners must be informed of the ordinance when they buy a piece of property. On new plats where vehicle access is needed, a separate document will be recorded with the property identifying the City's access. ITe Coun,il felt that in lli"b", '"'''' fe""" 'hou!d not be allowed in dntinage ",d utility easements for ponding, wetlands, access for maintenance. There should be flexibility in rural developments. Mr. Dickinson suggested adding this item to the agenda for the next Council Workshop to discuss ordinance language and how to handle fences for rural developments. The Council recessed at 9:15 p.m. The Council reconvened at 9:25 p.m. S'rAf"F.... C:of"! A-Hi) tf',^4~1 ~ '"b.,.....-()~ 0rd~~~<:- l>j I -. S' CHAPTER 7 FENCES AND WALLS SECTION: 12-7-1: Permitted Use 12-7-2: Locations 12-7-3: Fence Height 12-7-4: Performance Standards 12-7-5: Barbed Wire and Electric Fences 12-7-6: Exemptions From Provisions 12-7-1: PERMITTED USE: Fences, walls, hedges and similar barriers (herein referred to as fences) shall be permitted in all yards subject to the provisions of this chapter. A permit is required for the construction of all fences or walls that are located on, in, or near any property line, drainage and utility easement, or wetland in the City of Andover. A permit application shall be submitted for review by the Engineering Department and an application fee shall be paid as outlined in Chapter 1-7-3 of this code prior to the issuance of any permit. (Amend, 12/6/05, Ord, 317) 12-7-2: LOCATION: A_ Fences shall be located entirely on the private property of the individual constructing the fence, Fences may be placed up to the property line_ It is the responsibility of the property owner to determine the location of property lines. Fences may be located in any private yard or along a side or rear property line, except as follows: 1. No fence shall be placed in the public right-of-way, 2. Fences shall not be placed in any utility easement where any under ground utility is present. Fences may be placed within other utility easements so long as they do not interfere in any way with existing under ground or above ground utilities. The existence and location of private utility easements and equipment must be determined by contacting Gopher State One Call. I ---- CHAPTER 7 FENCES AND WALLS SECTION: 12-7-1 : Permitted Use 12-7-2: Locations 12-7-3: Fence Height 12-7-4: Performance Standards 12-7-5: Barbed Wire and Electric Fences 12-7-6: Exemptions From Provisions 12-7-1: PERMITTED USE: Fences, walls, hedges and similar barriers (herein referred to as fences) shall be permitted in all yards subject to the provisions of this chapter. A permit is required for the construction of all fences or walls that are located on, in, or near any property line, drainage and utility easement, or wetland in the City of Andover. A permit application shall be submitted for review by the Engineering Department and an application fee shall be paid as outlined in Chapter 1-7-3 of this code prior to the issuance of any permit. (Amend. 12/6/05, Ord, 317) 12-7-2: LOCATION: A. Fences shall be located entirely on the private property of the individual constructing the fence. Fences may be placed up to the property line. It is the responsibility of the property owner to determine the location of property lines. Fences may be located in any private yard or along a side or rear property line, except as follows: 1. No fence shall be placed in the public right-of-way, ~ Fences shall not be placed in any utility easement where any under ground utility is present. Fences may be placed within other utility easements so long as they do not interfere in any way with existing under ground or above ground utilities. The existence and location of private utility easements and equipment must be determined by contacting Gopher State One Call. '2- I 3. Fences shall not be olaced in oondina or wetland easements. or I any other easements that are necessarY to orovide vehicle access for maintenance of drainaae. oondina or wetland areas. For lots consistina of 2.5 acres or more. the City may authorize the olacement of fencina within the foreaoina areas. I ~,_~,_EEln.cEl!l that are allowed in easements for orooerties 2.5 acres ,..,.,.{ Formatted: Underline, Strikethrough ] or areater shall not be constructed or placed in such a manner so as "'.,.{ Formatted: Underline ) to obstruct the flow of water to or through drainage areas, ponds, or wetlands, or restrict the access to such drainaae. oondina or wetland areas. which ineluElesincludina. but is-not limited to. access from the street or around the--said oond or wetland. Fences shall not be placed in easements tAcit provide 'Iehicle access for the maintenance of drainaQe, pondinQ or wetland areas. I ~ 4, fence shall be constructed so as to enclose, hinder, or restrict access to utility boxes, fire hydrants, or any other above ground utilities, I 2:. &.--Fences on corner lots shall not encroach upon the Clear View Triangle as defined in Section 12-2-2 of this code, B. Any fence placed in violation of this section shall be the liability of the property owner who constructed it. The City, or any other agency having authority to work in a right-of-way or easement area, shall not be liable for repair or replacement of such fences in the event they are moved, damaged, or destroyed by virtue of the lawful use of that area, Any damage caused by the illegal placement of a fence shall be the responsibility of the property owner who constructed it. 12-7-3: FENCE HEIGHT: A In the rear and side yards up to the front fa~ade of the principal structure, fences up to a height of six (6) feet are allowed, (Amended Ord, 386, 8/5/09) B. Fences located closer to the front property line than the principal structure, shall not exceed four (4) feet in height. In the R-1 Single-Family Rural Residential and R-2 Single-Family Estate zoning districts, "ornamental fences", as defined in Section 12-2-2 of this title, of up to six (6) feet in height are permitted in all yards, provided the fence does not encroach upon the Clear View Triangle as defined in Section 12-2-2 of this code, (Amended Ord. 386, 8/5/09) .3 12-7-4: PERFORMANCE STANDARDS: A. Construction and Materials: Every fence shall be constructed in a workmanlike manner. For all fences constructed after the adoption of this title, all posts, supports, and framework shall be placed on the inside of the fence, with the finished side facing the abutting property or street. Fences in all districts shall be constructed of materials widely accepted in the fencing industry. No plywood boards, canvas, plastic sheeting or metal sheeting shall be used for any fence construction, No fence may have boards, planks, or panels larger than twelve (12) inches in width. Chain-link fences shall be constructed in such a manner that the barbed end is at the bottom of the fence, Silt fences shall only be allowed on construction sites or where deemed necessary to prevent soil erosion, Snow fences shall only be allowed between November 1st and April 15th, B. Maintenance: All fences shall be maintained in good condition and vertical position. Any missing, broken, incomplete, or deteriorated sections of fencing material or structural elements shall be replaced with the same quality of material and workmanship. All exterior wood surfaces, other than decay resistant woods, shall be protected from the elements and decay by a protective covering or treatment. If twenty-five percent (25%) of the surface is peeling, cracked, chipped, blistered, or weathered beyond effectiveness, the exterior surface shall be refinished. The entire surface shall be uniformly treated and maintained with the same quality of workmanship. (Amend. 12/6/05, Ord,317) Any fence not in conformance with this subsection shall be declared a nuisance and repaired so as to be in conformance or removed by the property owner. 12-7-5: BARBED WIRE AND ELECTRIC FENCES: A. A security arm for barbed wire to a maximum of eight (8) feet may be permitted by Conditional Use Permit in industrial or business districts. B. Barbed wire and electrical fences shall not be permitted on residential lots of less than two and one half (2.5) acres. L{ 12-7-6: EXEMPTIONS FROM PROVISIONS: Fences that are for the sole purpose of containing farm animals are not subject to the provision of this title, (Ord. 8PPPPPP, 8-20-2002; amd. 2003 Code; amd. Ord. 314, 1.0-4-2005) 5" j:>vJ Co 'M....; +ke.. Ci......i ...W\....."" j' "",-ob<;.<>>, S "P'ro po S~ do re\Ji!.i~S. FENCES AND WALLS 12-7-1 A.2. Fences shall not be placed in underground utility easements. Fences may be placed in other utility easements if they do not interfere with existing utilities. The existence and location of private utility easements and equipment must be determined by contacting Gopher State One Call. 3. Fences in urban areas shall not be placed in ponding or wetland easements without written permission from the City. Any permission must provide for reasonable maintenance access if required. In urban developments, access may be not be required on each lot. 4. Forfence placements on 2.5 acre and larger lots, the city may permit non-restrictive fencing in drainage, wetland or ponding areas as long as they do not restrict the flow of water. Access to ponds, wetlands and other such areas may be required by the City for maintenance purposes. 5. Fences in any area shall not enclose, hinder or restrict access to utility boxes, fire hydrants or other above ground utilities. 6. Fences on corner lots shall not encroach upon the Clear View Triangle as defined in Section 12-2-2 of this code . f:>w co...."".. tke tf\c......l?~... T..........!es Co ""'.....e.....ts Dave Berkowitz ~~ 1- tp From: Julie Trude Sent: Wednesday, March 02, 2011 12:12 PM To: Dave Berkowitz; Don Jacobson Cc: James Dickinson; Kameron Kytonen Subject: RE: Fences TITLE 12 Zoning Regulations.doc Attachments: Fences1.doc Dave & Don, I don't support prohibiting ALL fencing in "easements" to wetlands and ponds blc we know these drainage areas are excessive on older plats and we can't justify taking away every style of fence option on every single lot abutting these drainage areas, wetlands and ponds. We can prohibit fences in the ponds and wetlands. Then with easements we have to look at our goals. Our goal is to prohibit disturbance to water flow and protect access in some locations, not every property adjacent to a pond or wetland. Aren't some of these easements more than 1/2 of the back yard of homes? When there are 12 homes backing up to a pond, is there a need to prevent 12 homes from fencing so we can go in once every 5 years or so and clean out muck? I think we should keep language related to drainage and water flow and I put it back in #1 in purple. I would like to talk to Scott about my concerns on property rights versus government's need to restrict them. Legally: It has to be a fair balance, we restrict rights only to meet gov's interests and in a reasonable way, using the least restrictive methods to meet our goals. Our need: prevent flooding, water flow restrictions that may lead to flooding, ability to maintain a drainage system by cleaning it. Is there any other goal of government we can defend as being important in order to restrict this property right? Too restrictive: no fences. Less restrictive: limit styles of fence so water can get through according to drainage needs [overland water versus infiltration through soils]; require access [define a size of access area]. Perhaps the staff is handling this all internally with each permit. I don't know. Do you look at every pond and decide if some can fence and some cannot based on where a front-end loader, truck or equipment can drive upon to get to the pond? The 2.5 acre language is okay. I don't know if the language, if used, protects drainage areas blc we only list wetlands and ponds. I see a lot of those French drains in my development that collect water in a drainage ditch that feeds into some storm water drains then into a pond. I am not sure what these are viewed as.... Also the neweset Woodland plats, E. of Nightengale, plus their 6th add., have some back yard drainage system---I don't think the language covers these where there is no visible pond. Perhaps we will never clean these back yard ditches out, but we don't want board-on-board fences keeping these systems from collecting the snow melt or rain falls and keeping basements dry. [When I campaigned in Coon Rapids this summer, the addition of 4 in- ground swimming pools on one block was causing one yard excessive back yard flooding up to her deck....not sure they had expected this when the pools were all approved. There was no pond in sight but there was a low area along the back yards and all the pools had fences.] 1 \ Julie From: Dave Berkowitz Sent: Wednesday, March 02, 2011 7:35 AM To: Don Jacobson; Julie Trude Cc: James Dickinson; Kameron Kytonen Subject: Fences TITLE 12 Zoning Regulations.doc Don & Julie, Attached is a draft revision to the fence ordinance. If this looks fine we can take it to Public Hearing at the April 5th City Council meeting. If you both believe it needs to be discussed further with the entire Council I can put it on the March 29th Workshop. Thank You -----Original Message----- From: Rhonda Anderson Sent: Wednesday, March 02, 2011 7:21 AM To: Dave Berkowitz Subject: FW: Fences TITLE 12 Zoning Regulations.doc Rhonda Anderson City of Andover 1685 Crosstown Blvd. NW Andover, MN 55304 (763) 767-5101 r.anderson@andovermn.gov -----Original Message----- From: Dave Berkowitz Sent: Tuesday, March 01, 2011 4:35 PM To: Rhonda Anderson Subject: FW: Fences TITLE 12 Zoning Regulations.doc Revisions from Scott B. Rhonda I noticed the numbers do not show the original and then the new. Please go back and make sure that the old is left in with a strike through and the new is shown. Thank You -----Original Message----- From: Scott Baumgartner [mailto:hawklaw2@aol.com] Sent: Tuesday, March 01, 2011 3:46 PM To: Dave Berkowitz Subject: RE: Fences TITLE 12 Zoning Regulations.doc Dave, Attached, please find a redlined version of Title 12, incorporating some of my proposed changes. Scott -----original Message----- From: Dave Berkowitz [mailto:D.Berkowitz@andovermn.gov] 2 ~ CHAPTER 7 FENCES AND WALLS SECTION: 12-7-1 : Permitted Use 12-7-2: Locations 12-7-3: Fence Height 12-7-4: Performance Standards 12-7-5: Barbed Wire and Electric Fences 12-7-6: Exemptions From Provisions 12-7-1: PERMITTED USE: Fences, walls, hedges and similar barriers (herein referred to as fences) shall be permitted in all yards subject to the provisions of this chapter. A permit is required for the construction of all fences or walls that are located on, in, or near any property line, drainage and utility easement, or wetland in the City of Andover. A permit application shall be submitted for review by the Engineering Department and an application fee shall be paid as outlined in Chapter 1-7-3 of this code prior to the issuance of any permit. (Amend. 12/6/05, Ord. 317) 12-7-2: LOCATION: A. Fences shall be located entirely on the private property of the individual constructing the fence. Fences may be placed up to the properly line, It is the responsibility of the property owner to determine the location of property lines. Fences may be located in any private yard or along a side or rear property line, except as follows: 1. No fence shall be placed in the public right-of-way. 2. Fences shall not be placed in any utility easement where any under ground utility is present. Fences may be placed within other utility easements so long as they do not interfere in any way with existing under ground or above ground utilities. The existence and location of private utility easements and equipment must be determined by contacting Gopher State One Call. ~ Are some of these easements I 3. Fences shall not be olaced in oondina or wetland easements. or excessive? Then we have prop, right anv other easements that are necessary to orovide vehicle issuesJWhat about ditches, back yard I drainage ditches, French drains access for maintenance of drainaae. oondina or wetland areas. leading to ditches, are these covered? For lots consistina of 2.5 acres or more. the City mav authorize the olacement of fencina within the foreaoina areas. Fences Still can have drainage areas that are shall not be constructed or olaced in such a manner so as to excessive and our only concern is the obstruct the flow of water to or throuah drainaae areas. oonds. obstruction of flow, not access.., or wetlands, or disturb natural drainaae oatterns. ~FencEll)that are allowed in easements for orooerties 2.5 acres . ,-' .[ Formatted: Underline, Strikethrough ) or areater shall not be constructed or placed in such a manner so as .."'1 Formatted: Underline ) to obstruct the flow of water to or through drainage areas, ponds, or wetlands, or restrict the access to such drainaae. oondina or wetland areas. whish iRSh:lElesincludina. but is-not limited to. access from the street or around the---said oond or wetland. Fences shall not ee placed in easements that provide 'jehicle acsess for the maintenance of drainage, ponding or wetland areas. I ~ 4,. fence shall be constructed so as to enclose, hinder, or restrict access to utility boxes, fire hydrants, or any other above ground utilities. I 2. &.-Fences on corner lots shall not encroach upon the Clear View Triangle as defined in Section 12-2-2 of this code, B. Any fence placed in violation of this section shall be the liability of the property owner who constructed it. The City, or any other agency having authority to work in a right-of-way or easement area, shall not be liable for repair or replacement of such fences in the event they are moved, damaged, or destroyed by virtue of the lawful use of that area. Any damage caused by the illegal placement of a fence shall be the responsibility of the property owner who constructed it. 12.7.3: FENCE HEIGHT: A. In the rear and side yards up to the front fayade of the principal structure, fences up to a height of six (6) feet are allowed. (Amended Ord. 386, 8/5/09) B. Fences located closer to the front property line than the principal structure, shall not exceed four (4) feet in height. In the R-1 Single-Family Rural Residential and R-2 Single-Family Estate zoning districts, "ornamental fences", as defined in Section 12-2-2 of this title, of up to six (6) feet in height are permitted in all yards, provided the fence does not encroach Lf upon the Clear View Triangle as defined in Section 12-2-2 of this code. (Amended Ord. 386, 8/S/09) 12-7-4: PERFORMANCE STANDARDS: A. Construction and Materials: Every fence shall be constructed in a workmanlike manner. For all fences constructed after the adoption of this title, all posts, supports, and framework shall be placed on the inside of the fence, with the finished side facing the abutting property or street. Fences in all districts shall be constructed of materials widely accepted in the fencing industry, No plywood boards, canvas, plastic sheeting or metal sheeting shall be used for any fence construction. No fence may have boards, planks, or panels larger than twelve (12) inches in width. Chain-link fences shall be constructed in such a manner that the barbed end is at the bottom of the fence. Silt fences shall only be allowed on construction sites or where deemed necessary to prevent soil erosion, Snow fences shall only be allowed between November 1st and April1Sth. B. Maintenance: All fences shall be maintained in good condition and vertical position. Any missing, broken, incomplete, or deteriorated sections of fencing material or structural elements shall be replaced with the same quality of material and workmanship, All exterior wood surfaces, other than decay resistant woods, shall be protected from the elements and decay by a protective covering or treatment. If twenty-five percent (2S%) of the surface is peeling, cracked, chipped, blistered, or weathered beyond effectiveness, the exterior surface shall be refinished. The entire surface shall be uniformly treated and maintained with the same quality of workmanship. (Amend. 12/6/0S, Ord. 317) Any fence not in conformance with this subsection shall be declared a nuisance and repaired so as to be in conformance or removed by the property owner, 12-7-5: BARBED WIRE AND ELECTRIC FENCES: A. A security arm for barbed wire to a maximum of eight (8) feet may be permitted by Conditional Use Permit in industrial or business districts. S' B. Barbed wire and electrical fences shall not be permitted on residential lots of less than two and one half (2,5) acres. 12-7-6: EXEMPTIONS FROM PROVISIONS: Fences that are for the sole purpose of containing farm animals are not subject to the provision of this title. (Ord, 8PPPPPP, 8-20-2002; amd. 2003 Code; amd. Ord, 314, 10-4-2005) (p C1P 1685 CROSSTOWN BOULEVARD N.W. . ANDOVER, MINNESOTA 55304 . (763) 755-5100 FAX (763) 755-8923 . WWW.CI.ANDOVER.MN,US TO: Mayor & Council Members CC: Jim Dickinson, City Administrator FROM: David D. Berkowitz, Director of Public Works/City Engineer SUBJECT: Update/lO-27/Bunker Lake Boulevard NW Reconstruction/CSAH 7 to 38th Avenue - Engineering DATE: March 29. 2011 INTRODUCTION Anoka County Highway Department representatives will be at the workshop to update the Council on the proposed Bunker Lake Boulevard reconstruction project (from 38th Avenue to 7th Ave.) that is scheduled for 2012. DISCUSSION An open house for this project will be held on March 29th from 4:30pm to 6:30pm in the Andover City Council Chambers to give the City Council's from Andover and Anoka and residents an opportunity to see the proposed improvements and ask questions and provide comments. After the open house Jack Corkle (Anoka County Senior Multimodal Transportation Planner) and Jason Orcutt (Anoka County Design Engineer) will update the Council on the current status of the project. ACTION REOUIRED This item is for information and discussion and no action is required at this time. Respectfully submitted, CU....=eJ;) ~ David D. Berkowitz @ 1685 CROSSTOWN BOULEVARD N,W, . ANDOVER, MINNESOTA 55304. (763) 755-5100 FAX (763) 755-8923 . WWW.CI.ANDOVER.MN.US TO: Mayor & Council Members CC: Jim Dickinson, City Administrator FROM: David D. Berkowitz, Director of Public Works/City Engineer SUBJECT: Bunker Lake Boulevard NW Funding ApplicationlHanson Boulevard NW to Jefferson Street - Engineering DATE: March 29. 2011 INTRODUCTION Anoka County Highway Department representatives will be at the workshop to discuss with the City Council the proposed Surface Transportation Policy (STP) Federal funding application for improvements to Bunker Lake Boulevard from Crane Street to Jefferson Street in Ham Lake. DISCUSSION Jack Corkle (Anoka County Senior Multimodal Transportation Planner) and Jason Orcutt (Anoka County Design Engineer) will update the City Council on the STP Funding application. If funding is approved the project would be constructed in 2015-2016. ACTION REQUIRED This item is for information and discussion and no action is required at this time. Respectfully submitted, ~0.~ David D. Berkowitz