HomeMy WebLinkAbout6.n. Approval of Fiber License Between the City of Rosemount and ArvigEXECUTIVE SUMMARY
City Council Regular Meeting: September 20, 2016
AGENDA ITEM: Approval of Fiber License Between the
City of Rosemount and Arvig
AGENDA SECTION:
Consent
PREPARED BY: Kim Lindquist, Community Development
Director AGENDA NO. 6.n.
ATTACHMENTS: License Agreement APPROVED BY: ddj
RECOMMENDED ACTION: Motion to authorize the Mayor to execute the attached
License Agreement.
SUMMARY
Namura Technologies is requesting that Arvig provide telecommunication services to their business at 15215
Boulder Trail via the City owned fiber optics in the Business Park. This is the fifth business to use the
system and therefore a license must be created to permit private use of the public system.
BACKGROUND
In the summer and fall of 2014, the City installed fiber optic cables in the Business Park right of way. The
fiber would be “dark fiber” and would permit various providers to utilize the system for the building tenants
within the Park. Avrig first provided service to the Akona business in December 2014, Genave Electronics
in May 2015, Vic’s Crane Tower in September 2015, and Namura Technologies. The City Attorney has
prepared the attached license which will permit private use of the system. Given that the City wants to
encourage use of the installed fiber, staff is recommending a $50/month fee be paid to assist in offsetting
maintenance and upkeep of the fiber and building. The license would be revamped if there were additional
users added by the provider.
RECOMMENDATION
Staff recommends the Mayor execute the attached license between the City and Arvig
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LICENSE (DARK FIBER) AGREEMENT
THIS LICENSE AGREEMENT (“Agreement”) is made as of the 19th day of July, 2016 by and
between the CITY OF ROSEMOUNT, a municipal corporation under the laws of the State of Minnesota,
(“City”), whose address is 2875 145th Street West, Rosemount, MN 55068, and Arvig, a Minnesota
Corporation, having its principal address at 150 2nd Street SW, Perham, MN 56573 (“Licensee”).
RECITALS:
WHEREAS, the City has constructed a fiber optic network throughout portions of the City of
Rosemount as shown on Exhibit A attached hereto and made a part hereof by reference (“City Network”);
and
WHEREAS, the City is willing, subject to the terms, covenants and conditions set forth in this
Agreement, to grant to Licensee a license for the operation and use of certain City Dark Fiber in the City
Network to Licensee, and Licensee desires to license subject to the terms, covenants and conditions of this
Agreement, the use of certain City Dark Fiber in the City Network.
NOW THEREFORE, in consideration of the foregoing, and of the promises and covenants
contained in this Agreement, the parties agree as follows:
1. Scope of Dark Fiber License. The City hereby grants to Licensee on an exclusive basis
the right to use the strand or strands of the City Dark Fiber described in Exhibit B attached hereto and
made a part hereof by reference, along the Route Segments described in Exhibit B as the same may be
amended from time to time according to the terms of this Agreement (the “Licensed Fibers”). This
license agreement authorizes Licensee to use the Licensed Fibers in accordance with the terms of this
Agreement to provide fiber service to one customer or account. No additional cust omers or accounts may
be served except by separate license agreement or amendment to this Agreement.
2. Effective Date and Term. This Agreement shall become effective as of the date that
the City executes this Agreement (“Commencement Date”) and shall remain in effect unless and until
terminated in accordance with the termination provisions of this Agreement. The term of this Agreement
(“Term”) shall be for a period of two (2) years from and after the Commencement Date unless terminated
earlier according to the terms of this Agreement.
The Licensed Fibers, identified in Exhibit B, may be changed from time to time in writing signed
by the City and Licensee, as specified in the applicable amended Exhibit B, which shall be attached to this
Agreement. The amended Exhibit, shall have its own term, which term shall commence on the date that
the City executes the applicable amended Exhibit B and end on the Termination Date.
3. Definitions. For purposes of this Agreement, the terms set forth below shall be defined
as follows:
Acceptance Test - The tests conducted on the Licensed Fibers by the Licensee to ensure that the
Licensed Fibers meet or exceed the City Dark Fiber Specifications outlined in Exhibit C.
City Conduit - The City-owned conduit in which the City Dark Fiber is located.
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City Dark Fiber - All Dark Fiber owned by the City whether dedicated for the City's use only or
whether used by the City, Licensee or a third party.
City Fiber Building – The building located at the Well 12 site in which the City Conduit is
connected and the Fiber Equipment rack is located.
Dark Fiber - Unused Fiber through which no light is transmitted.
Fiber Equipment Rack – the equipment rack within the City Fiber Building on which th e Licensee
is allowed to mount their equipment and connect to the Licensed Fibers.
Fiber Acceptance Date - The date of the applicable Notice of Acceptance which evidences that the
Licensed Fibers in the applicable Route Segments as defined in each Exhibit B have passed the
Acceptance Test and have met the conditions of Section 6.
License Fee - The License Fee shall mean the Fiber License Fee as set forth in Section 4(a) of this
Agreement.
Licensed Fibers - shall have the definition set forth in Section 1 of this Agreement.
Licensee Equipment Location - Locations where Licensee's Equipment will be installed within the City
Fiber Building and Fiber Equipment Rack enclosures and Licensee's Equipment will be installed as
outlined in Exhibit "D".
Licensee Premises - That portion of any Licensee's Equipment used to house L icensee's Equipment in
order to use the Licensed Fibers.
Licensee's Equipment - The Licensee's terminals and peripheral equipment or facilities used with or
connected to the Licensed Fibers which may be located on City's property pursuant to a separate
agreement or on Licensee's own land or that of a third party.
Notice of Acceptance - Licensee's written approval that the Licensed Fibers have passed the
Acceptance Test. The Notice of Acceptance shall define the effective date for the Term of the Route
Segment set forth in Exhibit B.
Route Segment - That portion of the City's Conduit containing the Licensed Fibers installed between
the identified Splice Vaults as set forth in Exhibit A.
Splice Vault - The vaults installed by the City in the City Network where the City, the Licensee and
other users of the City Network can splice into the City Conduit and/or the City Dark Fiber.
4. Price and Payment.
(a) Subject to the allowances for interruptions set forth in this Agreement, Licensee shall pay
the City a license fee for the use of the Licensed Fibers provided by the City ("License
Fee") which License Fee shall commence on the Fiber Acceptance Date. The License
Fee payable to the City for the Licensed Fibers shall be Fifty Dollars ($50.00) per
month. The License Fee shall be payable quarterly, in advance, on the first day of each
calendar quarter commencing on the Fiber Acceptance Date for the Route Segment.
Should the Fiber Acceptance Date be any date other than the first day of any calendar
quarter, then that initial quarter’s License Fee and the final quarter’s License Fees shall
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be prorated based on the actual date.
(b) Licensee shall pay all License Fees, by check in the amount set forth on the statement
sent to the Licensee by the City. The Licensee shall pay to the City a late payment fee of
five percent (5%) of the amount of any License Fee payment that is overdue by more
than ten (10) days ("Late Payment Fee").
(c) All payments due from either party to the other under the terms of this Agreement which
are not paid when due shall bear interest from the due date until paid at an interest rate
equal to the lesser of 1-1/2% per month or the maximum lawful rate p ermitted by law.
5. [Intentionally Left Blank]
6. Acceptance Testing and Completion of Licensed Fibers .
(a) Upon Licensee's request, prior to the Licensee's splicing into the applicable City Dark
Fiber, the City shall have the Licensed Fibers tested at the Licensee's sole cost and
expense in accordance with the procedures and standards specified in Exhibit C
("Acceptance Testing"). Licensee shall be responsible for the timely completion of any
work or installation required to place the Licensed Fibers into operation. Licensee's
failure to complete such work shall not be grounds for rejection of a Completion Notice.
City shall give Licensee five (5) business days prior notice of the time and location of the
Acceptance Testing, and Licensee shall have the right, but not the obligation, to be
present to observe the Acceptance Testing. City shall provide Licensee with a copy of
such test results. City shall deliver the Licensed Fibers to Licensee in conformance with
the fiber specifications set forth in Exhibit C.
(b) Upon the successful completion of Acceptance Testing, the City shall provide written
notice to Licensee (a "Completion Notice"). City shall contemporaneously deliver a
copy of the results of the Acceptance Testing and Licensee shall, within fifteen (15) days
of receipt of the Completion Notice, either accept or reject the Completion Notice.
Licensee shall be permitted to reject only if Licensee specifies the failure of the Licensed
Fibers to satisfy the requirements of this Agreement by writ ten notice to City. Licensee's
written acceptance shall constitute the Notice of Acceptance. In the event Licensee
rejects the Completion Notice, City shall promptly, and at no cost to Licensee, remedy
the defect or failure specified in Licensee's notice . Thereafter City shall again conduct
Acceptance Testing and, if successfully completed, provide Licensee a Completion
Notice. The foregoing procedure shall apply again and successively thereafter until City
has remedied all defects or failures specified by Licensee. Any failure by Licensee to
timely reject a Completion Notice, or any use of the Licensed Fibers by Licensee for any
purpose other than testing, shall be deemed to constitute acceptance for purposes of this
Agreement and Licensee shall be deem ed to have delivered a Notice of Acceptance upon
the earlier of (i) such use or (ii) the fifteenth (15 th) day after delivery of the Completion
Notice.
7. Use of Licensed Fibers; Access . Licensee's use of the Licensed Fibers shall be limited
to providing fiber access to one account customer . Licensee shall not use the Licensed Fibers in violation
of this Agreement, any applicable law, rule, regulation or order of any governmental authority having
jurisdiction, or any franchise, license, agreement or certificate related to the City Network, unless the
validity thereof is being contested in good faith and by appropriate proceedings (but only so long as such
proceedings and Licensee's use of the Licensed Fibers does not, in City's reasonable opinion, involve any
risk of the forfeiture, or loss of the City Network or the City of any other license of the City Dark Fiber,
or any part thereof or any interest therein).
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Licensee shall have the right to interconnect the Licensed Fibers to Licensee's network at the
existing Splice Vaults and such other points as are technically feasible and which are approved by the
City in its reasonable discretion. Upon Licensee's request, City shall consult with Licensee regarding the
location of the interconnection points with City during the design, engineering and permitting phases of
any construction by Licensee.
8. Performance and Maintenance . City shall maintain the Licensed Fibers pursuant to
Exhibit E, so that at all times the Licensed Fibers perform in accordance wi th the standards set forth in
Exhibit C. Inspection and maintenance of the Licensed Fibers will be conducted by City o r its
subcontractors upon the request of Licensee unless prior arrangements have been made between City and
Licensee. The Licensee shall be responsible for all cost of the City relating to the inspection and
maintenance of the Licensed Fibers requested by the Licensee and the Licensee shall pay the City for said
cost within thirty (30) days of the City invoicing the Licensee.
9. Ownership and Title. All ownership, rights, title and interest in all the Licensed Fibers
provided by City hereunder shall at all times remain exclusively with the City. All right, title and interest
in the Licensee's Equipment shall at all times remain exclusively that of the Licensee.
10. Liens and Encumbrances. Neither patty, directly or indirectly, shall create or impose
any lien on the property of the other or on the rights or title relating thereto or any interest therein or in
this Agreement.
11. Representations and Covenants Regarding Authorizations .
(a) Licensee hereby represents, warrants and covenants to City as follows:
(i) Licensee is duly organized, validly existing and in good standing und er the laws
of the State of Minnesota and has full power and authority to execute, deliver
and perform the terms of this Agreement.
(ii) Licensee has or will use its best commercial efforts to obtain and maintain all
rights, licenses, governmental regulatory approvals, authorizations, rights -of-
way, and other agreements and permissions necessary for the use of the Licensed
Fibers, or Licensee's Equipment, as well as any other such rights, licenses,
authorizations, rights-of-way, and other agreements, easements, or permissions
necessary for the installation and use of the Lice nsed Fibers. Licensee shall be
solely liable for all costs related thereto.
(iii) Licensee covenants that its use of the Licensed Fibers shall at all times be in
compliance with law and that Licensee has received and is in compliance with all
regulatory authorizations.
(iv) Licensee shall be responsible for and shall pay all taxes or fees, including, but not
limited to, franchise fees imposed by any other governmental agency or authority
as a result of Licensee’s operation or use of the Licensed Fibers pursuant to this
Agreement. The City represents and warrants that with respect to any Licensed
Fibers pursuant to this Agreement the City has obtained any and all necessary
rights of way or other authorizations by whatever name, such that the City is
legally permitted to own, use and license the Licensed Fibers; the City shall grant
Licensee whatever permission is necessary such that the Licensee may benefit
from such authorizations. With respect to any additional authorization require d
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of Licensee to install or operate the Licensed Fibers, Licensee shall, at its own
expense, obtain all municipal street rights and/or property leases that may be
required for the construction or operation of the Licensed Fibers thereof by
Licensee.
(v) During the term of this Agreement, t he City may use or permit the use of the City
Dark Fiber or City Conduit and the telecommunication capacity thereof for any
lawful purpose, subject to the limitations herein. Nothing in this Agreement shall
be construed or interpreted to prohibit the City from licensing the use of the City
Dark Fiber or the City Conduit or providing telecommunications capacity to
others or from installing or permitting others to install additional Dark Fiber in
the City Conduit or telecommunication capacity, including with out limitation,
fiber optic telecommunication capacity, with the right -of-way constituting any
Route Segment or to prohibit the City from operating such telecommunication
capacity (alone or in combination with others) in competition with the Licensee,
provided however, that no such installation or operation shall interfere with
Licensee’s use of the Licensed Fibers and the telecommunication capacity
thereof.
(b) City hereby represents, warrants and covenants to Licensee as follows:
(i) City is duly organized and validly existing under the laws of its State of
Minnesota and has full power and authority to execute, deliver and perform the
terms of this Agreement.
(ii) City has obtained and will maintain all rights, licenses, gove rnmental regulatory
approvals, authorizations, rights-of-way, and other agreements and permissions
necessary for the use of the Licensed Fibers, and the City Network including
such rights, licenses, authorizations, rights -of-way, and other agreements,
easements, or permissions necessary for the installation of the City Network and
use of the Licensed Fibers. City shall be solely liable for all costs related thereto.
12. Compliance with Law . Each party shall perform its respective rights and obligations
hereunder in accordance with all applicable laws, rules and regulations imposed by any gove rnmental
authority.
13. Access to the City Fiber Building and the Licensed Fibers. The City shall provide
Licensee with access to the City Fiber Building and the Licensed Fibers shown on Exhibit B and
described within Section 25 upon the execution of this Agreement by the City and the Licensee.
14. Relocation of the Licensed Fiber . Licensee recognizes that, from time to time, City
may elect or be required to relocate the Licensed Fibers and/or City Conduit, whether such relocation is
for the convenience of City or is a requirement by law or existing contract or by loss of right -of-way the
City shall be solely r esponsible for all costs incurred to relocate the Licensed Fibers except for the cost
related to the Licensee splicing into the new Licensed Fiber. For any other relocation, Licensee shall pay
its proportional share of the cost, defined as the number of L icensed Fibers divided by the total number of
City Dark Fiber and Licensee Dark Fiber in any given Route Segment. City will use commercially
reasonable efforts to effect any relocation in a manner that will not cause any material interruption to
Licensee's use of the Licensed Fibers.
15. Condemnation and Casualty .
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(a) Condemnation. If all or any porti on of the Licensed Fibers are taken for any public or
quasi-public purpose by any lawful power or authority by the exercise of the right of
condemnation or eminent domain, the City and the Licensee shall be entitled to terminate
this Agreement with respect to the Licensed Fibers affected, or if such condemnation
materially affects the intended purpose of the Licensed Fibers, then Licensee may
terminate the Agreement in its entirety. In such event, both parties shall be entitled to
participate in any condemnation proceedings to seek to obtain compensation by separate
awards for the economic value of their respective interests in the City Dark Fiber or the
Licensed Fibers.
(b) Casualty. If all or any portion of the City Dark Fiber, the City Conduit or the Licensed
Fibers are made inoperable and beyond feasible repair due to a casualty or other Force
Majeure Event (as that term is defined in Section 24 below), Licensee shall be entitled to
terminate this Agreement with respect to the applicable Licensed Fibers affected by such
casualty or other event. In such event, both parties shall be entitled to seek to recover the
economic value of their respective interests in the Ci ty Dark Fiber, the City Conduit or
the Licensed Fibers (i) under any insurance policy carried by either party or any third
party, or (ii) in either joint or separate actions, from any third party that may be legally
responsible for causing such casualty.
16. Government Data Practices. The parties must comply with the Minn esota Government
Data Practices Act, Minn. Stat. Ch. 13, as it applies to all data provided by each party under this
Agreement, and as it applies to all data created, collected, received, st ored, used, maintained, or
disseminated by any party under this Agreement. The civil remedies of Minn. Stat. §13.08 apply to the
release of the data referred to in this clause by any p arty.
If any party received a request to release data referred to in this clause that was received by the
patty receiving the request from another party, the patty receiving the request to release the data must
immediately notify the patty from whom the data originated. The originating patty will give the pa tty
receiving the request to release the data instructions concerning the release of the data to the requesting
party before the data is released.
17. Liability and Insurance .
(a) Indemnification by Licensee. Licensee agrees to defend, indemnify and hold harmless
the City and its elected officials, officers, employees, agents, contractors and
representatives, from and against any and all claims, costs, loses, expenses, demands,
actions, or causes of action, inc luding reasonable attorneys’ fees and other costs and
expenses of litigation (collectively “Damages”), that may be asserted against or incurred
by the City or for which the City may be liable in the performance of this Agreement,
except those that solely arise from the gross negligence, or willful misconduct of the
City, or its respective employees, agents or contractors. Licensee shall further defend
and indemnify all claims arising out of the installation, operation, use, maintenance,
repair, or removal of the Licenses Fibers as may be required by this Agreement.
(b) Indemnification by City. City will indemnify and hold harmless Licensee and Licensee’s
affiliates, officers, directors, employees, stockholders, partners and agents of Licensee
from and against any and all Damages arising from any and all claims relating to or
arising out of any breach on the part of City of any obligation or covenants under this
Agreement, or the gross negligence or willful misconduct of City, its employees, agents,
and contractors; provided, however, that nothing herein shall be deemed a waiver by the
City of the limitations on liability set forth in Minnesota Statutes, Chapter 466 ; and the
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City will not be obligated to indemnify Licensee for any amounts in excess of the limits
set forth in Minnesota Statutes, Section 466.04, less any amount the City is required to
pay on behalf of itself, its officers, agents or employees for Damages arising out of the
same occurrence.
(c) Licensee shall obtain and maintain during the term of thi s Agreement, the insurance
coverages set forth in Exhibit F.
(d) Notwithstanding anything to the contrary in this Agreement, in no event will City be
liable to Licensee for punitive, indirect, incidental, special or consequential damages,
including, without l imitation, loss of profits, income or business opportunities.
18. [Intentionally Left Blank].
19. Events of Default. Each of the following events shall constitute an event of default
(whether any such event shall be voluntary or invo luntary or occur by operation of law or pursuant to any
judgment, decree, order, rule or regulation of any court or administrative or governmental body):
(a) The failure of Licensee to pay any License Fee when due or any other payment due
hereunder and the continuation of such failure for thirty (30) days after written notice is
given by City demanding such payment;
(b) If either party fails to observe or performs its obligations under this Agreement and does
not cure such failure within thirty (30) days from its receipt of written notice of breach
without, however, limiting any other rights available to the parties pursuant to any other
provision of this Agreement. If the default may not be reasonably cured within such
thirty (30) day period, either party may request the other party to grant an extension of
the time to cure not to exceed ninety (90) days, consent to such extension not to be
unreasonably withheld.
(c) Except as expressly limited hereby, the City and the Licensee shall have such remedies
for the default of the other party hereto as may be provided at law or equity following
written notice of such default and failure to cure the same within the applicable time
allowed to cure under the terms of this Agreement.
(d) The failure of Licensee to carry and maintain insurance in compliance with all provisions
of this Agreement.
(e) The Licensee shall cease to have any of the licenses, agreement, certificates, concessions,
permits, rights or privileges required for the conduct of its business and operations which
loss is not remedied by the obtaining of a replacement license, agreement, certificate,
concession, permit, right or privilege within sixty (60) days of the loss thereof, if such
loss would have a material adverse effect upon the ability of the Licensee t o perform its
obligations or enjoy its rights hereunder.
(f) Licensee shall admit in writing an inability to pay its debts as such debts become due or
Licensee shall (1) apply for or consent to the appointment of, or the taking of possession
by, a receiver, administrator, custodian, trustee or liquidator of itself or of all or a
substantial part of its property or assets, (2) make a general assignment for the benefit of
its creditors, (3) commence a voluntary case under the U.S. Bankruptcy Code, (4) file a
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petition or otherwise commence a proceeding under any bankruptcy, insolvency
reorganization winding-up, or composition or readjustment of debts or similar law, (5)
fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case under the U.S. Bankruptcy Code, or (6)
take any action for the purpose of effecting any of the foregoing; or a proceeding or case
shall be commenced, without the application or consent of Licensee, in any court of
competent jurisdiction, seeking (1) its liquidation, reorganization, dissolution or winding -
up, or the composition or readjustment of its debts, (2) the appointment of a trustee,
receiver, administrator, custodian, liquidator or the like of Licensee or of a ll or any
substantial part of its assets, or (3) similar relief in respect of any law relating to
bankruptcy, insolvency, reorganization, winding -up, or composition or readjustment of
debts, which proceeding is not dismisses within ninety (90) days thereaf ter.
20. Rights Upon Default.
(a) Upon the occurrence of a defaul t by Licensee, the City may forth with terminate this
Agreement by thirty (30) days written notice to Licensee.
(b) Upon the occurrence of a default by the City, Licensee shall be entitled to terminate this
Agreement or any particular Route Segment by written notice to the City. Unless
otherwise explicitly set forth in this License, this shall constitute Licensee's sole remedy
for the City's default.
(c) The right of either party to terminate a specific Ro ute Segment or this License shall be in
addition to, and not in substitution for, any other rights that a party may have as a result
of a default by the other party. In the exercise of its right of termination as herein
provided, the non-defaulting party may, at its option, elect to terminate this Agreement in
its entirety or only with respect to the particular Route Segment to which the defaulting
party may be in default of its obligations under this Agreement.
21. Remedies. Upon the occurrence and during the continuance of any event of default, the
non-defaulting party may, at its option, declare this Agreement to be in default and may, in addition to
any other remedies provided herein, terminate this Agreement. No remedy is intended to be exclusive, but
each shall be cumulative and in addition to and may be exercised concurrently with any other remedy
available to City or Licensee at law or in equity.
22. Termination.
(a) Except as otherwise provided herein, this Agreement may be terminated, without penalty
or further liability, by either party upon thirty (30) days ’ written notice to the other party
of a default as defined herein (without, however, limiting any other rights available to the
parties pursuant to any other provisions hereof).
(b) Notice of Termination. The patties shall give notice of termination of this Agreement in
accordance with Section 29 of this Agreement. All License Fees paid by Licensee prior to
said termination date shall be retained by the City.
(c) Licensee's Liability for Early Termination . If Licensee terminates this Agreement as to
all or any Licensed Fibers for any reason, the Licensee shall pay to the City as liquidated
damages for early termination, one hundred fifty percent (150%) of the applicable annual
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License Fees for the applicable Licensed Fibers for the year in which Licensee terminates
("Termination Fee"). All License Fees previously paid to the City shall be retained by the
City. The Termination Fee shall be the City's sole remedy for Early Termination and
Licensee shall have no further payment obligations.
(d) Removal of Licensee's Equipment . Upon termination of this Agreement for any reason,
Licensee shall, within ninety (90) days of notice by the City to the Licensee as hereinafter
provided, remove all of Licensee's Equipment.
23. Force Majeure Events . Neither party shall be liable to the other for any failure of
performance under this Agreement due to causes beyond its control, including but not limited to: acts of
God, fire, flood or other catastrophes; any law, order, regulation, direction, action or request of the United
States Government, or of any other government, including state and local governments having or
claiming jurisdiction over such party, or of any department, agency, commission, bureau, corporation or
other instrumentality of any one or more of these federal, state or local governments, or of any civil or
military authority; national emergencies; insurrections; riots; wars; or strikes, lock outs, work stoppages
or other labor difficulties (collectively, "FORCE MAJEURE EVENTS ").
24. Rights and Obligations of Licensee. In addition to the rights and obligations of
Licensee set forth elsewhere in this Agreement, Licensee shall:
(a) have full and complete control, responsibility and liability for the signals distributed over
the fiber optic components of the Licensed Fibers licensed by Licensee or for its benefit;
(b) have full and complete control, responsibility and liability for the purchase, installation,
construction and maintenance of the Licensee's Equipment;
(c) have full and complete control, responsibility and liability for operating and maintaining
any operating authority from any federal, state or local governmental body or agency that
relates to the activities of Licensee under this Agreement, including Licensee's license of
channel capacity on the Licensed Fibers.
25. Access and Security.
(a) Licensee and Licensee's designee shall have the right to visit any facilities of the City
over, under, on or upon or in which the Licensed Fibers are located, upon reasonable
prior oral or written notice to the City (considered to be 5 business days’ notice for a
non-service affecting request and eight (8) hours or less notice for a service-affecting
request) provided that the City may require that a representative of the City accompany
any representative of Licensee or of any Licensee designee making a visit. Such
visitation right shall include the right to inspect the Licensed Fibers and to review
performance or service data, and other documents used in conjunction with this License.
Employees and agents of Licensee or of a Licensee designee shall, while on the premises
of the City, comply with all rules and regulations including, without limitation,
security/safety requirements and, where required by government regulations, receipt of
satisfactory governmental clearances. The City shall have the right to notify Licensee that
certain Licensee or Licensee designated employees are excluded if, in the reasonable
judgment of the City, the exclusion of su ch employees is necessary for the proper
security and maintenance of the City's facilities.
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(b) The City agrees to allow Licensee direct ingress and egress to Licensee's premises at such
times as may be required for Licensee to perform any appropriate testing, maintenance
and repair. The City may require that a representative of the City accompany any
representatives of Licensee on such visits to the City property otherwise outside the
Licensee's premises. Employees and agents of Licensee or of a Licensee designee shall,
while on the premises of the City, comply with all rules and regulations including,
without limitation, security/safety requirements and, where required by government
regulations, receipt of satisfactory governmental clearances. The City shall have the right
to notify Licensee that certain Licensee or Licensee designated employees are excluded
if, in the reasonable judgment of the City, the exclusion of such employees is necessary
for the proper security and maintenance of the City's facilities.
(c) Notwithstanding the provisions of this Section, each party acknowledges that the
operational efficiency of the other depends on the continuous availability of its trained
personnel and, accordingly, both parties will act cooperatively to resolve any situations
which may arise that threaten the security, operations or maintenance of either party's
facilities prior to excluding any personnel.
26. Assignment. Licensee may not assign, transfer, delegate or in any other manner dispose
of, any of its rights, privileges or obligations under this Agreement without the express written consent of
City.
27. Dispute Resolution Procedures.
(a) The City and Licensee shall attempt in good faith to resolve any disputes that may arise
under this Agreement. In the event that the City and Licensee are unable to resolve any
such dispute within thirty (30) days of the date on which the dispute arises, then either
party may submit to the other no tice (the "Mediation Notice") that the parties shall
mediate such dispute pursuant to this Section. Within ten (10) business days after a
written request by either party, the parties shall agree in good faith upon a mediator. The
disputing parties shall attempt in good faith to resolve their dispute in accordance with
the procedures and timetable established by the mediator. If a resolution of the dispute is
not reached by the 30th day after the appointment of the mediator, or such later date as
may be agreed to by the parties, the mediator shall promptly provide the disputing parties
with a written, confidential, non -binding recommendation on resolution of the dispute,
including the mediator's assessment of the merits of the principal positions being
advanced by each of the disputing parties. At a time and place specified by the mediator
after delivery of the foregoing recommendation, the disputing parties shall meet in a good
faith attempt to resolve the dispute in light of the mediator's recommendation . Each
disputing party may, but is not required to be represented at the meeting by a person with
written authority from the City Council or Licensee's Board to settle the dispute, along
with such other persons as each disputing party shall deem appropria te. If the disputing
parties me unable to resolve the dispute at or in connection with the meeting, then: (1)
any disputing party may commence such judicial proceedings as may be appropriate; and
(2) the recommendation of the mediator shall have no furthe r force or effect, and shall
not be admissible for any purpose, in any subsequent judicial proceeding. The costs of
the time, expenses, and other charges of the mediator and of the mediation process shall
be borne by the parties to the dispute, with each side in a mediated matter bearing one-
half of such costs. Each party shall bear its own costs and attorneys' fees incurred in
connection with any mediation under this Agreement.
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453340v2 RS215-4
(b) Unless otherwise agreed in writing or prohibited by applicable law, the parti es shall
continue to provide service, honor all other commitments under this Agreement and
continue to make payments in accordance with this Agreement during the course of any
dispute resolution and during the pendency of any action at law or in equity rel ating
hereto.
28. Forum for Mediation or Litigation. In the event that mediation or litigation is required
in order to resolve any dispute or disagreement connected with this Agreement, it is agreed by and
between the parties hereto that venue and jurisdict ion for any such mediation or litigation shall be in
Dakota County, Minnesota. Unless otherwise provided by law, any and all litigation between the parties
hereto arising out of this Agreement shall be instituted and maintained in a court of competent jur isdiction
in Dakota County, Minnesota. Any cause of action arising by virtue of the laws of the United States shall
be instituted in a court of competent jurisdiction in the State of Minnesota.
29. Miscellaneous.
(a) Counterparts. This Agreement may be executed in counterparts each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument, and in pleading or proving any provision of this Agreement, it shall not be
necessary to produce more than one complete set of such counterparts.
(b) Captions; Gender. Article and section headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or interpretation of
this Agreement. Whenever used herein the singular number shall include the plural, the
plural shall include the singular, and the use of any gender shall include all genders.
(c) Governing Law and Binding Effect. This Agreement shall be construed and enforced in
accordance with, and the validity and performance hereof shall be governed by the laws
of the State of Minnesota. This Agreement shall bind and inure to the benefit of each of
the patties and their successors and permitted assigns.
(d) Waivers and Amendments. This Agreement may not be amended nor shall any waiver,
change, modification, consent or discharge be effected, except by an instrument in
writing adopted, in the case of an amendment, by each patty and, in the case of a waiver,
consent or discharge, by the party against whom enforcement of such instrument is
sought. Any consent by either party to, or waiver of, a breach by the other party shall not
constitute a waiver or consent to any subsequent or different breach. If either party shall
fail to enforce a breach of this Agreement by the other party, such failure to enforce shall
not be considered a consent to or a waiver of said breach or any subsequent breach for
any purpose whatsoever.
(e) Relationship Not a Partnership or an Agency. The relationship between Licensee and
City shall not be that of partners or agents for one another and nothing contained in this
Agreement shall be deemed to constitute a partnership, joint venture or agency agreement
between them.,
(f) Notices. All notices, requests, demands, statements, reports and other communications
under this Agreement shall be in writing and deemed to be duly delivered, if delivered in
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453340v2 RS215-4
person, by overnight courier or by certified or registered mail:
If to City: City of Rosemount
2875 145th Street West
Rosemount, MN 55068
Attn: Kim Lindquist,
Community Development Director
With a copy to: Rosemount City Attorney
Kennedy & Graven
200 South 6th Street, Suite 470
Minneapolis, MN 55402
If to Licensee: Arvig
150 2nd Street SW
Perham, MN 56573
Either party hereto may change its mailing address by giving notice to the other pursuant
to the provisions of this paragraph.
(g) Disclaimers. There are no agreements, warranties or representations, express or implied
either in fact or by operation of law, statutory or otherwise, including warranties of
merchantability and fitness for a particular purpose or use, except those expressly set
forth herein.
(h) Entire Agreement. This Agreement, including the exhibits, schedules and annexes
hereto, which are hereby incorporated by reference and made a part of this Agreement as
if they were fully set forth herein, constitutes the entire agreement between City and
Licensee with respect to the subject matter hereof and supersedes all prior agreements
and understandings between them as to such subject matter, and there are no restrictions,
agreements, arrangements or undertaking, oral or written, between City and Licensee
relating to the transactions contemplated hereby which are not fully expressed or referred
to herein.
(i) Severability. If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule or law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect so long as
the economic or legal substance of the transactions contemplated hereby is not affected in
any manner adverse to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the greatest extent possible.
IN WITNESS WHEREOF , and intending to be legally bound, the parties have executed this
Agreement on the dates indicated below.
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453340v2 RS215-4
CITY OF ROSEMOUNT
Dated: BY:
Name: William Droste
Title: Mayor
Dated: BY:
Name: Clarissa Hadler
Title: City Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this ____ day of ________________, by
William Droste and by Clarissa Hadler, the Mayor and City Clerk, respectively, of the City of
Rosemount, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the
authority granted by its City Council.
Notary Public
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453340v2 RS215-4
LICENSEE:
Date: BY:
Name:
Title:
STATE OF MINNESOTA )
) ss.
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this ____ day of ________________, by
__________________________, the _______________________, of ___________________________,
a __________________________________, on behalf of __________________________________.
Notary Public
LICENSEE:
Date: BY:
Name:
Title:
STATE OF MINNESOTA )
) ss.
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this ____ day of ________________, by
__________________________, the _______________________, of ___________________________,
a __________________________________, on behalf of __________________________________.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
CITY OF ROSEMOUNT
2875 145th Street West
Rosemount, MN 55068
Telephone: (651) 423-4411
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453340v2 RS215-4
EXHIBIT A
City Network
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453340v2 RS215-4
EXHIBIT B
Designation of Licensed Route Segments and Licensed Fiber Stands
The East Side Yellow and Purple strands from the Dakota County CSAH 42 Handhole to and from Building #6
(City Fiber Building at the Well 12 Site: 15212 Boulder Avenue). These strands will be used by Arvig to provide
service to MRCI Worksource located at 15191 Boulder Court, Rosemount, MN.
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453340v2 RS215-4
EXHIBIT C
City 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 City Network. Deviations from these specifications may occur if City acquires a portion of
the City Network 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 within three (3) business days, with fusion splices.
2. Fibers shall be terminated with Ultra SC-PC connectors (typical return loss of 0.50 dB).
3. After end-to-end connectivity on the fibers has been completed, bi-directional OTDR span
and power meter testing will be completed. City 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.
4. 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. City shall test and record power level readings on
all fiber strands in both directions of transmission (bi-directionally) using the 1310 & 1550
nm wavelengths.
5. 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 & 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) +
(0.05 x number of splices).
(2) At 1550 nm: (0.25 dB/km x km of cable)+ (number of connectors x 0.50) +
(0.05 x number of splices).
c. City's loss/attenuation objective for each fiber optic splice is 0.05 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 0.10 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. City 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 11111
wavelengths will always be recorded together with the receive power level reading at
the receiving end of the test.
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453340v2 RS215-4
6. OTDR traces will be taken and splice loss measurements recorded. City will store OTDR
traces on electronic media.· Loss measurements will be recorded using an industry accepted
laser source and a power meter. Copies of all data sheets and tables and one set of diskettes
with all traces will be available to Licensee.
7. Following emergency restoral, City personnel shall perform span test documenting end to
end attenuation measurement of each fiber and will be completed in both directions at 1310
& 1550 nm wavelengths. Upon permanent repair, new splice loss readings should be no
greater than the original splice loss specifications.
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EXHIBIT D
City Fiber Building and Location on the Fiber Equipment Rack
The City Fiber Building is Located at the site of the City’s Well 12: 15212 Boulder Avenue.
The License Agreement allows the Licensee to install their equipment in Slots 34 and 35 of the Fiber
Equipment Rack.
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EXHIBIT E
Maintenance Specifications
1. Planned Network Maintenance Activity.
A. Timing. Except as set forth in the following sentence, City shall perform all maintenance
between 0001-0600 local time, Monday through Friday, inclusive, that will have a disruptive impact on the
continuity or performance level of the Licensed Fibers. However, the preceding sentence does not apply to
restoration of continuity to a severed or partially severed Licensed Fibers, restoration of dysfunctional
power and ancillary support equipment, or collection of any potential jeopardy conditions.
B. Notice. City shall provide Licensee with telephone, facsimile, or written notice of all non-
emergency planned network maintenance no later than seven (7) business days prior to performing
maintenance that, in its reasonable opinion, has a substantial likelihood of affecting Licensee's traffic. If
City's planned activity is canceled or delayed, City shall promptly notify Licensee and shall comply with
the provisions of the previous sentence to reschedule any
delayed activity.
2. Miscellaneous.
A. Standard of Care; Cooperation. In performing its services hereunder, City shall take
workmanlike care and make commercially reasonable efforts to prevent impairment to the signal continuity
and performance of the Licensed Fibers. In addition, City shall reasonably cooperate with Licensee in
sharing information and analyzing the disturbances regarding the cable and/or fiber facilities.
B. Licensee's Equipment. Nothing contained herein shall make City responsible for the
Licensee's Equipment.
C. Escalation List. City shall, at Licensee's request, provide Licensee an operations
escalation list for use in reporting and seeking redress of exceptions noted in City's performance of routine
maintenance and non-routine maintenance.
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EXHIBIT F
Insurance Coverages