HomeMy WebLinkAbout6.i. Dakota Broadband Joint Powers Agreement
EXECUTIVE SUMMARY
City Council Regular Meeting: November 17, 2015
AGENDA ITEM: Dakota Broadband Joint Powers
Agreement
AGENDA SECTION:
Consent
PREPARED BY: Dwight Johnson, City Administrator AGENDA NO. 6.i.
ATTACHMENTS:, Proposed Joint Powers Agreement APPROVED BY: ddj
RECOMMENDED ACTION: Motion to approve the attached Dakota Broadband Joint
Powers Agreement and authorize the Mayor and City Clerk to execute it.
BACKGROUND
On March 11, 2015 Craig Ebeling and Lisa Alfson, representing the Dakota County Community
Development Agency (CDA), made a presentation to the Council regarding establishing a countywide
broadband system. This idea originated with the HiPP group which worked several years ago on potential
joint projects. Last year the cities, county and CDA collaborated on a consultant study to determine the
potential benefits, costs and methods for implementing a countywide system. This year each city in
Dakota County was visited by Mr. Ebeling and Ms. Alfson. Based on generally positive feedback, work
has continued through the summer and fall to draft a joint powers agreement to continue working
together under a formal agreement. The Council reviewed the draft agreement on November 9th and
directed it to be placed on the regular council meeting agenda for action.
DISCUSSION
The draft Joint Powers Agreement (JPA) is intended to allow the Dakota county cities, CDA, and Dakota
County to “establish, operate, maintain and improve the [Broadband] systems” in our county. The County
and cities currently have their own individual fiber optic systems which are not well coordinated or
maintained in some cases. The current system also has some gaps which prevent needed service
redundancy in some cases. The immediate focus is to strengthen the network between public institutional
uses in the county such as city halls, police and fire stations, libraries, county buildings, community centers,
etc. and to provide for common maintenance of the system. This is called the INET and this system will
allow for greater speed and capacity to share information and services between these groups. Each City
will continue to own its own fiber, but will grant usage rights for use by the overall system. Longer term, it
is believed that there will be an ability to leverage the system to provide for major data capacity needs (but
not programming) for businesses which could help the economic development of the area. This is referred
to as CNET.
Since more study is needed to determine the size and scope of the new countywide system and how it
would work, the JPA is structured initially as a low cost “agreement to agree” with no penalty for
withdrawal at the end of the initial phase later in 2016. Rosemount’s fee for 2016 is proposed to be
$3,282.25 and funds have been budgeted in the preliminary 2016 budget for this purpose. The cost is
relatively low because the County and the CDA are paying 2/3 of the cost with the cities dividing the
remaining 1/3 of the cost.
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Following the November 9th work session, the City Attorney reviewed the proposed JPA and found no
issues of concern with it. If approved, the Council would then need to designate one its members to be
the representative on the new JPA board. It is required by state law that the main board be composed of
elected officials. This board would need to meet several times in 2016, but it is presumed that much of the
ongoing work will be supervised by an administrative/technical group created by the elected board, similar
to how the Dakota 911 center operates.
RECOMMENDATION
Staff recommends approval of the Dakota Broadband Joint Powers Agreement.
SLS Draft: 10/30/15
JOINT POWERS AGREEMENT
DAKOTA BROADBAND BOARD
Dated as of December 31, 2015
Table of Contents
1. Statement of Purpose and Powers to be Exercised ............................................................................... 1
2. Manner of Exercising Powers; Creation of Dakota County Broadband Board .................................... 1
3. Defined Terms ...................................................................................................................................... 1
4. Participant ............................................................................................................................................. 3
5. Board ..................................................................................................................................................... 5
6. Systems Plans ........................................................................................................................................ 7
7. Acquisition of Interests in System Components ................................................................................... 8
8. Ownership of System Components ....................................................................................................... 8
9. Expansion of Systems ........................................................................................................................... 9
10. Operating and Maintenance Cost Sharing......................................................................................... 9
11. Financing Backbone Completion Projects ...................................................................................... 10
12. Revenue Generation ........................................................................................................................ 10
13. Establishment of a Relocation Pool; Submission of Capital Plans ................................................. 11
14. Default; Remedies ........................................................................................................................... 11
15. Limitation of Liablity; Indemnification .......................................................................................... 11
16. Termination of Board; Disposition of Assets.................................................................................. 12
17. Amendments ................................................................................................................................... 12
THIS JOINT POWERS AGREEMENT (as amended from time to time, this
“Agreement”) is entered into as of December 31, 2015, by and between the parties described on
Schedule A attached hereto (the “Initial Participants”), pursuant to Minnesota Statutes, Section
471.59.
1. Statement of Purpose and Powers to be Exercised. The purpose of this
Agreement is to provide for the joint exercise of the statutory powers common to the
Participants (defined below), to establish, operate, maintain and improve the Systems
(defined below) for use by the Participants and potentially other users; including, but not
limited to, the power to enter into agreements necessary or convenient to the exercise of
such powers; to establish fees and charges with respect thereto; to acquire, own and
convey real or personal property; to issue bonds or obligations under any law under which
the Participants may independently issue bonds or obligations, and use the proceeds of the
bonds or obligations to carry out the purposes of the law under which the bonds or
obligations are issued; and to take such other actions reasonably necessary to the
establishment, operation, maintenance and improvement of the System (together with
other powers described herein, the “Joint Powers”). Notwithstanding any other provision
of this Agreement, the Board shall not have: any power of eminent domain; any taxing
powers; any power to pledge the full faith or taxing power of any of the Participants for any
purpose whatever; or to issue general obligation indebtedness of any Participant.
2. Manner of Exercising Powers; Creation of Dakota Broadband Board. The Joint
Powers of the Participants will be exercised through a joint powers board, which is hereby
created, to be designated the Dakota Broadband Board (the “Board”), having the powers
and duties described herein. The Board is authorized to exercise the Joint Powers on behalf
of and in cooperation with the Participants as provided herein.
3. Defined Terms. Capitalized terms used, but not otherwise defined, herein
shall have the following meanings:
“Administrative Funding Plan” means the plan to be developed and adopted by the Board
pursuant to paragraph 5.E.ii hereof, identifying the process and cost of the preparation of the
Systems Plans, and providing for the operation of the Board through the date on which the
Systems Plans have been adopted and the deadline for Participants to withdraw pursuant to
paragraph 6.D hereof has passed, generally consistent with the outline of elements and costs
shown in Schedule B.
“Agreement” has the meaning given in the first paragraph of this agreement.
“Backbone” the central portion of the network consisting of redundant optical fiber ring
segments interconnecting diverse communications network elements (switches, routers, etc.),
including connections at the colocation facility or facilities. Generally, the backbone capacity is
greater than the networks connected to it.
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“Board” has the meaning given in section 2 of this Agreement.
“C-Net” means the use of the System on any basis other than by the Participants for their
governmental and institutional purposes
“CDA” means the Dakota County Community Development Agency, and its successors
and assigns.
“I-Net” means the use of the System by the Participants for their governmental and
institutional purposes.
“Initial Participant” has the meaning given in the first paragraph of this Agreement.
“Initial Participation Fee” means, as to Initial Participants, the non-refundable fees
identified on Schedule A hereto next to their respective names, and for other Participants, initial
fees determined by the Board as provided in Section 4.C hereof.
“Joint Powers” has the meaning given in paragraph 1 of this Agreement.
“Operating and Maintenance Costs” means all expenses relating to the operation and
maintenance of facilities owned by the Board or used in connection with the Systems, including
but not limited to, labor, contracted services, energy costs, monitoring costs, system
configuration cost, switch-related costs, relocation costs, break repair costs, marketing costs,
insurance, taxes, fees or similar charges.
“Participant” means the Initial Participants and each other qualified governmental unit
satisfying the requirements of paragraph 4.B hereof to become a Participant, not including any
Participant who has withdrawn from the Board pursuant to paragraph 4.E hereof.
“Participation Fee” means an annual fee paid by each Participant as described in the
Systems Plans or by-laws of the Board, which will include, but not be limited to, a fee (which
shall be an equal amount for each Participant) in exchange for the Participant’s use of the I-Net.
“IRU” or “Indefeasible Rights to Use” means agreements between a Participant and the
Board, on behalf itself and all other Participants, with respect to the use of System Components
in which the Participant has an ownership or other legal interest.
“Supermajority” means a vote of two-thirds of the members of the Board, counted as one
vote per member or on the basis of Weighted Voting, when required.
“Systems” means the telecommunication infrastructure necessary for the Participants to
provide more robust broadband, I-Net and C-Net services within Dakota County, including,
without limitation, fiber optic cables, hand holes, switches and routers and other network
elements.
“Systems Components” means the various necessary or convenient elements of the
Systems, including, without limitation, fiber optic cables, hand holes, switches and routers,
together with contract rights and agreements necessary or convenient in connection with the
operation, maintenance, development and use of such components.
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“Systems Plans” means a plan or plans defining both the physical aspects of the Systems
and the methods for funding or financing the costs associated with the operation, maintenance,
and development of the Systems, to be developed consistent with the requirements of paragraph
6 of this Agreement.
“Weighted Voting” means a vote of the Board in which each member’s vote will be
weighted on the basis to be set forth in the Systems Plans, provided, however, that if any one
member would have a weighted vote which, by itself, would determine the outcome of any vote,
then its weighted vote will be capped as provided in the Systems Plans.
“Withdrawing Participant” means a Participant that has given notice of its intent to
withdraw from the Board pursuant to Paragraph 4, prior to the effective date of such withdrawal.
4. Participant.
A. General. Every Participant shall be a county, city, town, school district, or
other unit of government whose jurisdiction is within Dakota County, and who has the
authority to exercise the Joint Powers under Minnesota Statutes.
B. Initial Participants; Initial Participation Fee. The Initial Participants
shall have the rights and obligations of Participants hereunder upon execution and
delivery of this Agreement and payment, on or before December 31, 2015, to a fiscal
agent appointed for the Board of its respective non-refundable Initial Participation Fee.
The aggregate of the Initial Participation Fees described on Schedule A is intended to be
an amount sufficient to pay the certain costs identified on Schedule B attached hereto.
Such fees have been allocated to the Initial Participants using the formula that was used
for cost sharing for the initial Design Nine study. Accordingly, in addition to the fees
paid by the Initial Participants, the CDA shall contribute $56,921.17 toward the cost of
the Administrative Funding Plan and the Systems Plans.
C. Additional Participants. In addition to the Initial Participants, any other
entity described in subparagraph A above may become a Participant, subject to the prior
approval of the Board, by:
i. executing and delivering to the Board a counterpart signature page
to this Agreement, indicating its acceptance of the terms and conditions hereof;
ii. paying an Initial Participation Fee in an amount determined by the
Board (which fee shall not be lower than Initial Participation Fees paid by
comparably situated Initial Participants); and
iii. satisfying such other conditions mandated by the Board at the time
such entity seeks to become a Participant.
D. Annual Participation Fees. The Board shall establish and collect, and the
Participants shall pay, annual non-refundable Participation Fees, as further described in
the Systems Plans. Withdrawing Participants shall continue to pay Participation Fees due
and payable during any required notice provision under 4.D hereof.
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E. Withdrawal of Participants.
i. Participants may withdraw from participation in the Board without
incurring any financial obligations as provided in 6.D o f this Agreement,
following adoption by the Board of the Systems Plans. Withdrawal by any
Participant after the period described in 6.D will be subject to the following
provisions, as the same may be modified or amplified in the Systems Plans.
ii. A Participant that has not provided any System Components may
withdraw, effective immediately, by providing written notice to the Board. A
Participant that has provided System Components may withdraw by providing not
less than two years advance written notice provided to the Board, and by paying
to the Board a “withdrawal payment” as follows. Such withdrawal payment shall
be determined through a good faith negotiation between the Board and the
Withdrawing Participant. The purpose of the withdrawal payment is to require a
Withdrawing Participant to pay actual and direct expenses incurred by the Board
or another Participant which are reasonably related to the Withdrawing
Participant’s withdrawal from the Board, including, without limitation, equipment
relocation fees, leasing, and permit fees. If the Board and the Withdrawing
Participant are unable to reach an agreement on the amount of the withdrawal
payment, the disagreement shall be settled by binding arbitration administered by
the American Arbitration Association, or in such other manner as is acceptable to
the Board and the Withdrawing Participant. The amount of the withdrawal fee
may be reduced to the extent the Withdrawing Participant and the Board enter
into to agreements which extend the Board’s right to use System Components of
the Withdrawing Participant. The provisions of Section 7.A hereof regarding
termination of IRUs will continue to apply to Withdrawing Participants for the
duration of any IRU.
iii. The withdrawal of a Participant will not, in and of itself, modify
any agreements, IRUs or other contracts between the Withdrawing Participant and
the Board or other Participants. In addition, each Participant who withdraws shall
remain liable for all financial liabilities incurred during the period it was a
Participant, but shall not be liable for any new financial liabilities incurred after
following the date of the delivery of its notice of withdrawal.
iv. Notwithstanding the two-year notice required for withdrawal under
ii above, the Board and the Withdrawing Participant may negotiate a shorter
notice period in exchange for an additional payment by the Withdrawing
Participant, designed to satisfy ongoing financial obligations of the Participant to
the Board.
v. To the extent that IRUs granted by the Withdrawing Participant to
the Board for System Components owned by the Withdrawing Participant
continue beyond withdrawal, the obligations of the Withdrawing Participant to
pay associated Operating and Maintenance Costs will survive such withdrawal.
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5. Board.
A. Members. Each Participant shall be entitled to appoint two members of
the governing body of the Participant as a member and an alternate member to the Board.
The terms of each member and alternative member shall be as established in by-laws to
be adopted by the Board, but in any event, shall terminate at such time as the member or
alternate member ceases to be a member of the governing body of the applicable
Participant. If the CDA elects not to become a Participant, it will have the right to appoint
two members of its [staff or Board of Commissioners] as a non-voting liaison to the
Board and an alternate. The Board may appoint standing and ad hoc committees
including, without limitation, an operations committee, with the powers to be described
in the Board’s bylaws.
B. Governance. As shall be further described in by-laws to be adopted by the
Board:
i. Actions of the Board will be taken by vote of the Board in which
each member of the Board shall have, unless Weighted Voting is required, one,
equal vote. Decisions will be made by a majority vote except where a
Supermajority is required.
ii. A Supermajority and Weighted Voting shall be required: to
approve or revise the Systems Plan and the Systems Funding Plan; to approve
periodic budgets, including required contributions to be made by each Participant
in support of such budgets; and to approve the issuance of any bonds or
obligations of the Board.
C. Purposes. The Board shall: provide the structure for administrative and
fiscal oversight of the System; set appropriate policies for the Board and the System;
maximize the use of resources available to the various Participants for the benefit of the
Systems; and establish and oversee any appropriate advisory committees.
D. Powers. The Board shall have the general powers described in paragraph 1
of this Agreement, including, but not limited the powers to do the following:
i. To negotiate and enter into contracts, including contracts: for the
acquisition of real or personal property and equipment; for employment,
professional services and consultants; with wholesalers, subscribers, users, or
resellers that desire to utilize the Systems;
ii. To acquire, construct, manage, maintain, or operate any interest in
the Systems and any Systems Component;
iii. To apply for and hold any required licenses or permits;
iv. To sue and be sued;
v. To apply for, receive and utilize grants and loans;
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vi. To accept donations;
vii. To issue bonds or obligations as permitted by law, by vote of a
Supermajority of the Board, using Weighted Voting, provided that such
obligations shall not constitute an obligation of any individual Participant;
viii. With the prior approval of a Participant who has the authority to
impose, levy, collect or cause to be collected communication impact or
development fees, to levy such fees in lieu of the Participant;
ix. To promulgate, adopt, and enforce any rules and regulations, as
may be necessary and proper to implement and effectuate the terms, provisions,
and purposes of this Agreement.
E. Additional Powers and Responsibilities. In addition to the foregoing, the
Board shall have the following specific powers and responsibilities, as further described
and developed in the Administrative Funding Plan and the Systems Plans:
i. To approve contracts with commercial vendors regarding
development, operation, marketing, public relations, maintenance and expansion
of the Systems;
ii. To approve an Administrative Funding Plan, which the Board shall
endeavor to do not later than January 31, 2016, and to revise the same from time
to time;
iii. To approve the Systems Plans as soon as possible, with a goal of
completing the same on or before June 15, 2016, and to revise the same from time
to time;
iv. To adopt an annual budget for operation and maintenance of, and
capital improvements to, the System;
v. To develop policies regarding accounting, contracting and
procurement, employment, operations and maintenance, asset replacement;
vi. To adopt bylaws and other rules and regulations as necessary;
vii. To establish fees for Participants and non-Participants to access
and use the Systems in accordance with the duly adopted Systems Plan and
Systems Funding Plan;
viii. To acquire or lease real property as required for operations;
ix. To discharge other duties consistent with the purposes of this
Agreement and/or as required by statute.
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6. Systems Plans. The Systems Plans shall in general provide information
sufficient for Participants to evaluate the System’s capabilities and costs and its potential
benefit to them. They shall provide for the ownership, operation, maintenance,
improvement and use of the Systems and shall describe the methods of funding, and or
financing, the Systems.
A. Content. The Systems Plans shall address the following:
i. The design, construction, operation, marketing, public relations,
maintenance, expansion and lifecycle replacement costs of the Systems and
Systems Components;
ii. Identification of the specific Systems Components presently
owned by the Participants that will become part of the consolidated Systems
including any restrictions on the utilization of these Components;
iii. The terms under which Systems Components presently owned by
Participants will be available for use as part of the Systems;
iv. A valuation for all Systems Components presently owned by
Participants which will be available for use as part of the Systems;
v. User fees for the Systems;
vi. Identification of funding sources; and
vii. Those further matters described in paragraphs 7 through 13 of this
Agreement.
B. Negotiation of Contracts. The Board, as part of the Systems Plan, shall
negotiate but not execute contracts with vendors, Participants and others as necessary to
fully evaluate developmental, marketing, public relations, operational and maintenance
costs of the Systems. None of these contracts shall be finally approved for execution and
delivery by the Board until the Systems Plans are approved by the Board and the Board
makes a determination to implement the Systems Plans.
C. Comment Period; Adoption. Following the preparation of the Systems
Plans, the Board shall designate a period, of not fewer than 90 days, during which
members of the Board and Participants may provide comments to the Board regarding the
proposed Systems Plans. After the comment period has expired, the Board may adopt the
Systems Plans as proposed or with revisions addressing comments received; reject the
Systems Plans or postpone consideration.
D. Withdrawal. Following adoption of the Systems Plans, the Board shall
notify Participants of a date, not fewer than 60 days after the date of the notice, by which
Participants may withdraw from participation in the Board without incurring any
financial obligation beyond the payment of its initial Participation Fee. Participants who
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wish to withdraw shall provide written notice to the Board within such period, and may
withdraw effective immediately.
7. Acquisition of Interests in System Components. As will be further described in
the Systems Plans, the Participants anticipate that the Board and other Participants will
acquire interests in the use of Systems Components as follows.
A. As part of the Systems Plan, the Board will identify Systems Components
as to which Participants will grant to the Board and other Participants IRUs with
qualifiers, each of which will have an initial term of 10 years, with two five-year
renewals, which shall be automatic unless the Board affirmatively decides not to renew.
In connection with, and as a part of the grant of, each IRU, the Participant will grant to
the Board all rights necessary or convenient for the Board to operate the Systems within
the geographic boundaries of the Participant. The preceding sentence is not intended to
grant to the Board prior approval of any permits required to be obtained in connection
with any System Components to be constructed by the Board, provided however that
such permits will not unreasonably be withheld by any Participant.
B. In connection with the grant by any Participant of an IRU to the Board for
the benefit of the Participants as to any Systems Component, the Board will assume
operating and maintenance costs and responsibilities with respect to such Systems
Component.
C. With the prior consent of the Board, Participants may terminate an IRU as
to any Systems Component owned by it with not less than two year’s prior written notice
to the Board. The Board will consent to such termination unless the removal could render
the backbone to be less than carrier class or violate any Board contracts. The Participants
recognize that the two-year notice period is necessary and appropriate in order to permit
the Board to make alternative provisions for the continuance of service. The Board may
waive the two-year notice if it determines, in its sole discretion, that such termination will
not adversely impact the Systems.
8. Ownership of System Components. As will be further described in the Systems
Plans, the Participants expect ownership of System Components to be handled as follows.
A. Each Participant would retain whatever ownership interests it has in
Systems Components, subject to the interests it grants pursuant to IRUs or other
contractual arrangements.
B. The Board recognizes that Participants may have partial ownership
interests in System Components, or may have granted to third parties certain interests in
such assets, which may limit their ability to dedicate or grant IRUs in such Components.
C. It is not anticipated that the Board will have underlying ownership of
System Components, but if deemed appropriate by the Board, it may construct and own
certain System Components.
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9. Expansion of Systems. As will be further described in the Systems Plans, the
expansion of the Systems is expected to be handled as follows.
A. Each Participant will continue to have the ability to undertake and finance
additional System Components to be owned by it, however each additional System
Component shall be constructed consistent with standards established by the Board and
shall require the prior review and approval of the Board, in order to ensure that the
additions to the Systems will be undertaken in a coordinated manner.
B. It is also anticipated that the Board may undertake and finance additional
Systems Components on behalf of Participants, subjects to terms and conditions
acceptable to the Board and such Participants.
C. It is anticipated that Dakota County will expand the Backbone as
necessary to provide I-Net access to Participants without adequate access to the
Backbone. C-Net revenue associated with any such expansion by Dakota County will
inure to the benefit of the County.
D. The Board may provide tools for Participants to expand the Systems. The
Board may also issue bonds or obligations as permitted by law to finance such
expansions, with the approval of a Supermajority of the Board using Weighted Voting.
The Board or Participants may also seek financing through the CDA, which will be
within the complete discretion of the CDA to provide or not.
10. Operating and Maintenance Cost Sharing. As will be further described in the
Systems Plans, the Participants anticipate that Operating and Maintenance Costs would be
separated into their logical parts – for instance locate costs, fixed costs, monitoring costs,
system configuration cost, switch-related costs, relocation costs, break repair costs,
marketing costs, insurance, etc. Each cost category then would be shared by Participants
pro-rata based on distribution parameters appropriate for each category. As an example,
locate costs might be shared based on fiber-miles while marketing costs might be shared
based on an economic development parameter such as acres of commercial industrial
zoned land in the Participant’s jurisdiction, with Dakota County sharing a fixed percentage.
The Systems Plans will also include provisions describing the manner in which capital
assets of the Systems will be replaced and the manner in which costs will be shared.
Payment by Participants of their allocable share of Operating and Maintenance Costs will be in
addition to the annual Participation Fee, although Participation Fees may be used by the Board to
offset a portion of the Operating and Maintenance Costs, as provided in the Systems Plan.
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11. Financing Backbone Completion Projects. As will be further described in the
Systems Plans, the Participants recognize that it is a high priority for Participants to
complete the “backbone” or “core ring” of the System to carrier class standards. The
Participants anticipate that a hierarchy of approaches will be used to fund any projects
necessary to complete the backbone, and that such funding, and that such ap proaches may
involve participation by for profit or nonprofit non-Participants. The anticipated priority of
financing is as follows:
A. First, Dakota County will seek financial assistance to construct the
applicable System Components, in which case the Dakota County would take title to such
System Components funded.
B. Second, the Participant may finance or otherwise fund and construct the
System Components on its own or in partnership with non-Participants and may retain
sole ownership or may share ownership with any such non-Participants.
C. Third, Dakota County may finance or otherwise fund and construct the
System Components on its own or in partnership with non-Participants, and may retain
sole ownership or may share ownership with any such non-Participants.
D. Last, in the event that no Participant determines to construct the necessary
System Components on its own, the Board may finance and construct the System
Components and may retain title thereto. To the extent that the Board constructs and
owns any System Components pursuant to this alternative, any C-Net fees related to such
System Components shall accrue to the Board. To the extent that debt service on any
bond or obligation issued by the Board to construct any System Components exceeds
available C-Net revenues, such bonds or obligations will be paid by the Participants in
accordance with a plan to be approved by the Board using Weighted Voting.
12. Revenue Generation. As will be further described in the Systems Plans, the
Participants expect charges for use of the System to be handled as follows.
A. I-Net Usage and Charges. Each Participant may use the Systems to the
extent available within its boundaries for its own I-Net purposes on an unlimited basis, in
exchange for annual payment of its Participation Fee. Other than through the payment of
the Participation Fee, it is not anticipated that the Board will charge Participants for I-Net
usage of the Systems.
B. C-Net Revenues. The Board will establish and collect charges for use by
non-Participants of the C-Net, including different rates or charges for protected, versus
unprotected, services. Revenues, or net revenues, attributable to such charges will be
applied pursuant to the Systems Plans, which are anticipated to provide for allocation of
such revenues, or net revenues, to the Participant or Participants who own the Systems
Components being used.
C. Backbone Revenues. In connection with preparation of the Systems Plan,
and from time to time thereafter, the Board will make an initial determination of the
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percentages of the Backbone owned by the respective Participants to facilitate
distribution of the C-Net Revenues related to the use of the Backbone.
13. Establishment of a Relocation Pool; Submission of Capital Plans.
A. As further described in the Systems Plans, the Participants intend that the
Board establish, in connection with the first annual budget for the Board, a pool of funds
which will be made available, on terms described in the Systems Plans, to pay
Participants’ costs associated with required relocation of any of their System
Components. Participants for whom such costs are paid would be required to reimburse
the pool, without interest, for costs paid from the pool within one year, provided that if
repayment within one year is unduly burdensome, then with the prior approval of the
Board, the Participant would be permitted to reimburse the pool, with interest at a rate
determined by the Board over a longer period, not exceeding five years.
B. In order to minimize the unexpected need to relocate facilities, each
Participant shall submit its Capital Improvements Plans relating to any System
Components to the Board for review and comment prior to adoption thereof.
14. Default; Remedies. Upon the occurrence of any default hereunder, the Board
and each Participant shall have any and all remedies available to it at law or in equity.
15. Limitation of Liablity; Indemnification.
A. Limitation of Liability. As provided in Minnesota Statutes, Section 471.59,
Subd. 1a, no Participant shall be liable for the acts or omissions of another Participant
participating in the Board, unless it has specifically agreed in writing to be responsible
for the same. For purposes of determining total liability for damages, each Participant and
the Board are considered a single governmental unit and the total liability for all of the
Participants and the Board shall not exceed the limits on governmental liability for a
single governmental unit as specified under Minnesota Statutes, Sections 466.04, Subd. 1,
or as waived or extended by the Board or all Participants under Minnesota Statutes
Sections 466.06; or 471.981. This provision does not protect a Participant or the Board
from liability for its own independent acts or omissions not directly related to the exercise
of the Joint Powers under this Agreement. None of the Board or any Participants shall
have the power hereunder to do any act or thing the effect of which is to create a charge
or lien against the property or revenues of the Board or another Participant, except as
expressly provided in herein or in any of the documents authorized herein.
B. Indemnification. Without limiting the foregoing subparagraph, to the
extent of any liability insurance carried by the Board and available for such purpose, the
Board shall defend, indemnify and hold harmless each Participant from any and all
liability arising from or as a result of: (i) any accident, injury to or death of any person or
loss or damage to property that may be directly or indirectly caused by the acts or
omissions of the Board; (ii) any act of the Board in the observation or performance of any
of its responsibilities, or any failure by the Board to perform any such responsibilities;
and/or (iii) any actions or inactions of Participants taken as a result of their membership
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in the Board. The Board shall not be required to indemnify any Participant against any
Losses that are caused by the negligence or misconduct of such Participant. The Board
shall carry liability insurance in amounts carried by entities engaged in similar
enterprises.
16. Termination of Board; Disposition of Assets. This Agreement may be
terminated, and the Board dissolved, upon the vote a Supermajority of the Board, using
Weighted Voting, and in connection with any such termination and dissolution, the Board
shall adopt a plan providing for the orderly disposition of assets and unwinding of
agreements of the Board. Such plan shall provide that following the disposition of any
assets owned by the Board and the payment of all obligations of the Board, any amounts
remaining shall be distributed to the Participants in proportion to the contributions made
by the respective Participants in place at the time of dissolution.
17. Amendments. This Agreement may be amended, at any time and from time to
time, by a Supermajority of the Board, using Weighted Voting. Notwithstanding the
foregoing, no amendment shall adversely affect the security for any bonds or obligations
issued by the Board and outstanding at the time of the amendment.
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MINNESOTA/2003654.0005/12420934.6
IN WITNESS WHEREOF, each of the Participants has caused this agreement to be executed on its behalf
by its respective authorized officers, all as of the date first above written.
DAKOTA COUNTY, MINNESOTA
By______________________________
Its ______________________________
[Additional Participant Signature Pages to be added.]
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MINNESOTA/2003654.0005/12420934.6
Schedule A
Dakota County Broadband
Initial Membership Fee Computations
Concept
One-third of costs borne by Dakota County Community Development Agency
One-third of costs borne by Dakota County
One-third of costs borne by cities of over 10,000 pro-rata on population
Estimated Costs
$ 148,490.00
Contingency 15%
$ 22,273.50
Total Estimated Step 2 Cost
$ 170,763.50
CDA Share
$ 56,921.17
County Share
$ 56,921.17
City Share
$ 56,921.17
City cost distribution based on % of total 11 city
population
population
% of
population
Apple Valley 49,084 12.94%
$ 7,365.17
Burnsville 60,306 15.90%
$ 9,049.06
Eagan 64,206 16.93%
$ 9,634.26
Farmington 21,086 5.56%
$ 3,164.00
Hastings 22,172 5.84%
$ 3,326.96
Inver Grove
Heights 33,880 8.93%
$ 5,083.77
Lakeville 55,954 14.75%
$ 8,396.03
Mendota Heights 11,071 2.92%
$ 1,661.23
Rosemount 21,874 5.77%
$ 3,282.25
South St Paul 20,160 5.31%
$ 3,025.06
West St Paul 19,549 5.15%
$ 2,933.37
Total Cities >
10,000 379,342 100.00%
$ 56,921.17
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MINNESOTA/2003654.0005/12420934.6
SCHEDULE B
Dakota County Broadband Joint Powers Board
Administrative Funding Plan Elements with Estimated Costs
Step 1
Participants
Costs
Paid by
Others
Meetings Support1 $7,500 CDA estimate
Legal Services2 $10,000 CDA estimate
Preparation of Administrative Funding Plan3 $1,700 CDA estimate
Determination of Initial Participant Fees4 $850 CDA estimate
Subtotal Step 1 $20,050
Step 2
Meeting Support5 $8,000 CDA estimate
Legal Services6 $8,000
Preparation of Systems Plan Inventory, Design, etc: $68,990 Elert 4/17/15 proposal, all options
Balance of Systems Plan work: $15,000 $83,990 Design Nine - assumed split
Preparation of Systems Funding Plan $51,500 Design Nine - assumed split
Additional consulting costs $5,000 Estimate
Contingency $22,274
Subtotal Step 2 $170,764 $8,000
Grand Total Step 1 and Step 2 $170,764 $28,050
Note 1 - Assumes 3 months at $2,500/month
Note 2 - Assumes 50 hours at $200/hour
Note 3 - Assumes 20 hours at $85/hour
Note 4 - Assumes 10 hours at $85/hour
Note 5 - Assumes 4 months at $2,000/month
Note 6 - Assumes 40 hours at $200/hour - Prep of IRU's and other agreements and other consultation