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HomeMy WebLinkAboutA3. Interlocal with School District 71 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: David Fine, Economic Development Specialist SUBJECT: Interlocal Agreement with Bozeman School District #7 for the Procurement of Dark Fiber for the use of the Schools MEETING DATE: August 24, 2015 AGENDA ITEM TYPE: Action RECOMMENDATION: Authorize the City Manager to sign the Interlocal Agreement between the City of Bozeman and Bozeman School District #7 for the procurement of long-term dark fiber leases by the City for the use of the Schools. SUGGESTED MOTION: “I move to authorize the City Manager to sign the Interlocal Agreement between the City of Bozeman and Bozeman School District #7 for the procurement of long-term dark fiber leases by the City for the use of the Schools.” BACKGROUND: The City and Bozeman Public Schools have been collaborating to find ways to procure faster, more reliable and more affordable broadband services. The Schools and the City share an interest in securing a long-term agreement to lease dark fiber while maintaining City and School control over their own connections to the dark fiber network. The Schools and the City are members of the Broadband Steering Committee, which was endorsed by City Commission Resolution 4434 in 2013. The culmination of the Broadband Steering Committee’s efforts, the Bozeman Fiber Master Plan and Feasibility Study (the “Master Plan”), was adopted by the Commission pursuant to Resolution 4576 in January 2015. The Master Plan recommended partnerships with local schools in order to “lower telecommunications costs for all partners.” It further suggested that, “The K-12 school system is an essential partner because it is among the largest users of broadband connections.” The proposed interlocal agreement represents the results of the City and the Schools’ efforts to work together to secure fast, reliable, and affordable broadband for both entities for the long term at a fixed price that represents a savings over what the City and Schools are currently 2 paying. By partnering to purchase dark fiber from a community open-access network as envisioned by the Bozeman Fiber Master Plan, both entities benefit from the cost savings and efficiencies cooperative purchasing provides. The Bozeman School District #7 Board of Trustees approved the proposed Interlocal Agreement on August 10, 2015 with a unanimous 7-0 vote. UNRESOLVED ISSUES: If this Interlocal Agreement is approved, the City will negotiate an agreement to lease dark fiber for the sites listed in Exhibit A, which include those sites identified by both the City and BSD 7. The terms of the lease agreement will not be finalized until sometime after engineering of the broadband network has been completed. ALTERNATIVES: As determined by the Commission. FISCAL EFFECTS: The School District agrees to pay fees directly to the City during the term of this agreement upon receipt of an invoice provided by the City. Fees may be paid up-front for the entire ten (10) year term, or fees may be invoiced by the City on an annual basis with payment for the following year payable in advance. The cooperative purchasing of a long-term lease provides for cost savings and procurement efficiencies for both entities. The maximum price per month, per location of $556 is an 11% savings over what the City currently pays for its 100Mbps wide area network, with the ability, initially, to provide at least ten times more speed than we receive under our current network contract. Attachment: 1. Interlocal Agreement between the City of Bozeman and Bozeman School District #7 Hyperlinks: January 26, 2015 City Commission Packet Material – Adoption of the Bozeman Fiber Master Plan and Feasibility Study Report prepared on August 17, 2015 After recording return to: Bozeman City Clerk PO Box 121 Bozeman, MT 59771 Interlocal Agreement between Bozeman School District 7 and the City of Bozeman for Dark Fiber Services p. 1 of 6 INTERLOCAL AGREEMENT CITY OF BOZEMAN – BOZEMAN SCHOOL DISTRICT #7 THIS AGREEMENT is made and entered into this 24th day of August, 2015, between the City of Bozeman, a Municipal Corporation of the state of Montana, with principal offices at P.O. Box 1230, Bozeman, Montana, 59771-1230 (hereinafter referred to as “the City”), and Bozeman School District #7, a Political Subdivision of the State of Montana, with principal offices at 404 West Main Street, Bozeman MT 59715 (hereinafter referred to as “the Schools” and together with the City “the Parties”). WHEREAS, the City and the Schools are separate legal entities that have individual rights and duties as outlined in Montana Code Annotated; and WHEREAS, the City and the Schools currently independently contract for the provision of local transport lit fiber optic services; and WHEREAS, the City and the Schools support the creation of an open-access community fiber optic network to support public sector telecommunications needs, bridge service gaps, and provide access to advanced telecommunications capabilities to enable the private sector to use shared infrastructure to better deliver broadband services; and WHEREAS, the City and the Schools believe that leveraging their existing local transport expenditures by aggregating demand for access to dark fiber from an open access community fiber optic network will enable the City and the Schools to procure significantly improved services at an overall cost that is substantially similar to current overall expenditures; and WHEREAS, the City and the Schools believe that stable, long-term access to dark fiber assets is important for the provision of critical public services, including, but not limited to public safety communications and applications; and WHEREAS, the City and the Schools desire to cooperate for the purpose of aggregating demand for and procuring stable, long-term access to dark fiber for City and Schools use through the leasing of, or acquiring indefeasible rights to use (IRU) such dark fiber; and WHEREAS, the Schools are authorized to delegate purchasing authority to the City; and WHEREAS, the City and the Schools have the authority to enter into this agreement for the administrative activities described herein pursuant to Sections 7-11-101 through 7-11-108, MCA. Interlocal Agreement between Bozeman School District 7 and the City of Bozeman for Dark Fiber Services p. 2 of 6 NOW, THEREFORE, the City and the Schools agree as follows: I. PURPOSE OF INTERLOCAL AGREEMENT. The purpose of this Interlocal Agreement is to establish an administrative process by which the City and the Schools cooperate for the purpose of aggregating demand to lease dark fiber or acquiring indefeasible rights to use (IRU) dark fiber. II. PROCUREMENT OF SERVICES a. The Schools delegate to the City the authority to act on behalf of the Schools to negotiate and enter into contracts for leasing dark fiber, or acquiring indefeasible rights to use (IRU) dark fiber. Acquiring low-cost options for stable, long-term access to dark fiber facilities shall be a major focus of these negotiations. b. The City shall periodically consult, on a reasonably frequent basis, with authorized representatives of the Schools’ technical and administrative staffs to inform them of ongoing negotiations and discuss the needs of the City and the Schools. For purposes of this Agreement, the Schools’ authorized representatives are: Steve Johnson, Deputy Superintendent of Operations, and Brad Somers, Technology Services Supervisor. c. The negotiated price per month, per location served under this contract (“Monthly Access Fees”) may not exceed $556, without a Resolution of Approval by the Schools. The Schools will not pay the City for fees other than the Monthly Access Fees and initial connection fees as applicable. In the event the City receives any discounts on Monthly Access Fees from the provider, those discounts will be passed on to the Schools on a per location basis. d. The physical locations to be reached by fiber optic facilities under this Agreement are listed in Exhibit A, attached hereto and incorporated herein by this reference. Initial connection fees for each location served by this network may not exceed $2,500 per location without a Resolution of Approval by the Schools. The parties’ Authorized Representatives may by mutual agreement in writing amend Exhibit A from time to time to add new locations during the term of this Agreement. Each Schools site shown on Exhibit A will receive a pair of fiber strands in a ring configuration. For sites that are on laterals off of the main network rings, a collapsed ring will be established utilizing two pair in each required lateral. e. It is the intent of the parties, that subject to the conditions and limitations contained herein, the City may enter into agreements for the benefit of the Parties to provide the described telecommunications services and obtain access to dark fiber through lease agreements or IRUs, and in doing so, legally bind the Schools to pay money to the City for the services procured under such agreements, provided such agreements are consistent with the terms herein. Interlocal Agreement between Bozeman School District 7 and the City of Bozeman for Dark Fiber Services p. 3 of 6 f. The Parties do not intend the City to procure fiber maintenance services for the Schools or to be subject to maintenance obligations on behalf of the Schools. It is the intent of the Parties that maintenance agreements will be separately entered into with the selected provider of the dark fiber lease or IRU and that such agreement will include any applicable maintenance fees. g. The City and the Schools may enter into a separate agreement(s) to implement any lease or IRU obtained pursuant to this Agreement as applicable. h. The Schools agrees to pay fees directly to the City during the term of this Agreement upon receipt of an invoice provided by the City. Fees may be paid up-front for the entire ten (10) year term, or fees may be invoiced by the City on an annual basis with payment for the following year payable in advance. III. DURATION. The term of this Agreement will be for ten (10) years, unless earlier terminated in accordance with the terms of this Agreement. IV. TERMINATION. This Agreement may be terminated (a) upon mutual consent of the parties, and (b) upon breach of this Agreement by either Party, thirty (30) days after notice of the breach by the non-breaching Party, if the breach is not cured by the effective date of termination. If the breach cannot reasonably be completed within thirty days, this Agreement will not terminate if the breaching party commences the cure and with reasonable diligence pursues the cure to completion. Notwithstanding the foregoing, the City may terminate this Agreement thirty (30) days after written notice to the Schools if the City does not receive written assurances from the provider by March 1, 2016 that the provider will be able to deliver access to dark fiber for the fees permitted in Section II of this Agreement by July 1, 2016, or if the City does not receive further written assurances from the provider after March 1, 2016 of satisfactory progress toward the July 1, 2016 delivery date. Upon termination of this Agreement for any reason, any property interest acquired by the City in performance of this Agreement shall be disposed of by mutual agreement of the Parties. V. SEPARATE LEGAL ENTITY/ADMINISTRATION. There shall be no separate legal entity created as a consequence of this Agreement. Administration of this Agreement shall be the responsibility of the Bozeman City Manager, or their designee, and the Superintendent of the Bozeman School District #7, or their designee. VI. NON-WAIVER. Waiver by any party of strict performance or any provision of this Agreement shall not be a waiver of or prejudice the party's rights to require strict performance of the same provision in the future or of any other provisions. VII. LIMITATION OF LIABILITY. The Schools agrees that City shall have no liability for any error or omission or negligence on the part of the provider for Interlocal Agreement between Bozeman School District 7 and the City of Bozeman for Dark Fiber Services p. 4 of 6 provider’s failure to perform under a dark fiber lease or IRU obtained pursuant to this Agreement. VIII. TIME OF ESSENCE. It is mutually agreed that time is of the essence in the performance of all covenants and conditions to be kept and performed under the terms of this Agreement. IX. HEADINGS. The section headings contained herein are for convenience and reference and are not intended to define or limit the scope of any provision of this Agreement. X. NOTICES. All notices required under this Agreement shall be deemed properly served if delivered in writing, personally or sent by certified or registered mail to the last address previously furnished by the parties hereto. A copy of all notices will be sent to the legal counsel for each Party. Until hereafter changed by the parties by notice in writing, notices shall be sent to the City Manager, City of Bozeman, PO Box 1230, Bozeman, Montana 59771-1230 and to the Superintendent, Bozeman School District #7, at 404 West Main Street, Bozeman MT 59715. The date of mailing shall be deemed the date of such notice and service thereof. XI. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the Parties. No alterations, modifications, or additions to this Agreement shall be binding unless reduced to writing and signed by the parties to be charged herewith. No covenant, term or addition to this Agreement shall be deemed waived by either party unless such waiver shall be reduced to writing and signed by the Parties. XII. AMENDMENTS. The terms and conditions of this Agreement may not be modified or amended except by an instrument in writing executed by each of the Parties. No oral modification shall be enforceable. XIII. SEVERABILITY. The provisions of this Agreement shall be deemed independent and severable, and the invalidity, partial invalidity, or unenforceability of any one provision or portion thereof shall not affect the validity or enforceability of any other provision herein. XIV. EFFECTIVE DATE. This Agreement shall be effective after approval by the Parties’ respective governing bodies. It is the intent that said Agreement shall be effective on the date stated in the first paragraph of this Agreement. XV. NONDISCRIMINATION. The Parties will not discriminate in the performance of this Agreement on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability. Interlocal Agreement between Bozeman School District 7 and the City of Bozeman for Dark Fiber Services p. 5 of 6 XVI. RECORDATION. This Agreement shall be filed with the Gallatin County Clerk and Recorder and Montana Secretary of State as required by Section 7-11-107, MCA with all costs to be shared equally by the parties. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. ****END OF AGREEMENT EXCEPT FOR SIGNATURE PAGE**** CITY OF BOZEMAN BOZEMAN SCHOOL DISTRICT #7 BOARD OF TRUSTEES By Its: City Manager By Its: Chair Approved as to form: City Attorney ATTEST: Mike Waterman, District Court Clerk Interlocal Agreement between Bozeman School District 7 and the City of Bozeman for Dark Fiber Services p. 6 of 6 EXHIBIT A Initial Schools Sites Bozeman Public Schools 1. Bozeman High School 205 North 11th Ave 2. Chief Joseph Middle School 4255 Kimberwicke (Collapsed Ring) 3. Sacajawea Middle School 3525 South 3rd Ave. (Collapsed Ring) 4. Emily Dickinson Elementary School 2435 Annie Street 5. Hawthorne Elementary School 114 North Rouse 6. Hyalite Elementary School 3600 West Babcock 7. Irving Elementary School 611 South 8th 8. Longfellow Elementary School 516 South Tracy 9. Meadowlark Elementary School 4415 Durston Road 10. Morning Star Elementary School 830 Arnold Street (Collapsed Ring) 11. Whittier Elementary School 511 North 5th 12. Willson Building 404 West Main Street