Loading...
2.8. ERMUSR 12-13-2016 Elk River Municipal Utilities UTILITIES COMMISSION MEETING TO: FROM: Elk River Municipal Utilities Commission Michelle Canterbury—Executive Administrative John Dietz—Chair Assistant Al Nadeau—Vice Chair Daryl Thompson—Trustee MEETING DATE: AGENDA ITEM NUMBER: December 13, 2016 2.8 SUBJECT: Data Safekeeping and Access Agreement—WH Security, LLC BACKGROUND: At the October 11, 2016 meeting, the Commission approved a draft of the Data Safekeeping and Access Agreement between Elk River Municipal Utilities and Wright-Hennepin Cooperative Electric Association, and authorized the General Manager to finalize and execute the agreement to the satisfaction of the Chair, General Manager and Commission Attorney. DISCUSSION: After review of the draft agreement, WH Security, LLC requested a few minor changes be made. ERMU's legal counsel had the opportunity to review the proposed changes and was acceptable to them and the General Manager proceeding forward with the execution of the agreement. ACTION: Staff recommends the Elk River Municipal Utilities Commission receive the executed Data Safekeeping and Access Agreement by and between Elk River Municipal Utilities and WH Security, LLC. ATTACHMENTS: • Executed Data Safekeeping and Access Agreement ,.r POWERED BY Page 1 of 1 NATURE Reliable Public Power Provider POWEREO To 5 =u v 55 DATA SAFEKEEPING AND ACCESS AGREEMENT This Data Safekeeping and Access Agreement ("Agreement") is made and entered into this 10th day of November, 2016 by and between Elk River Municipal Utility and WH Security, LLC (collectively the "Parties"). RECITALS WHEREAS, Elk River Municipal Utilities owned and operated a security service; and WHEREAS, WH Security, LLC acquired the Elk River Municipal Utilities' security service assets; and WHEREAS, it is necessary for Elk River Municipal Utilities to provide historical customer and service data developed during Elk River Municipal Utilities' ownership and operation of the security service (the "Data") to WH Security, LLC in order for WH Security, LLC to provide effective security service to customers; and WHEREAS, WH Security, LLC will be responsible for safeguarding and maintaining the Data; and WHEREAS,the Parties intend to insure the Data is maintained in compliance with the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13; and WHEREAS,the Parties intend to insure the Data is maintained in compliance with the Minnesota Official Records Act, Minnesota Statutes, Section 15.17; and WHEREAS,the Parties intend to insure the Data is maintained in compliance with the Minnesota Government Records Act, Minnesota Statutes, Section 138.17 and Elk River Municipal Utilities records Retention Schedule. NOW, THEREFORE, it is mutually agreed as follows: 1. Purpose. The purpose of this Agreement is to ensure that the Data is maintained by WH Security, LLC in compliance with the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13; Minnesota Official Records Act, Minnesota Statutes Section 15.17; and Minnesota Government Records Act, Minnesota Statutes, Section 138.17; and Elk River Municipal Utilities records Retention Schedule, all as specified in the following Section 2. 2. Terms and Conditions. a. Elk River Municipal Utilities shall transfer the Data to WH Security, LLC. 56 b. WH Security, LLC shall safeguard and maintain the Data in compliance with applicable provisions of the Minnesota Government Data Practices Act (the "MGDPA"), Minnesota Statutes, Chapter 13. c. WH Security, LLC shall safeguard and maintain the Data in compliance with applicable provisions of Minnesota Statutes, Sections 15.17 and 138.17 and the Elk River Municipal Utilities record Retention Schedule, which Retention Schedule is identified on Exhibit A hereto. d. WH Security, LLC shall permit authorized personnel of the Elk River Municipal Utilities access to the Data upon request. 3. Term. This Agreement shall be effective on the date hereof and shall continue, unless terminated in accordance with the terms of this Agreement. Elk River Municipal Utilities may terminate this Agreement for convenience at any time. Termination shall be effective upon 30 days written notice to WH Security, LLC. WH Security, LLC may terminate this Agreement for convenience at any time. Termination shall be effective on 30 days written notice to Elk River Municipal Utilities. The Parties may voluntarily teiniinate this Agreement at any time by mutual agreement. Upon termination of this Agreement, WH Security, LLC shall promptly return all of the Data it maintains at the time of termination of the Agreement to Elk River Municipal Utilities. 4. Indemnification. To the fullest extent permitted by law, WH Security, LLC agrees to defend, indemnify, and hold-harmless Elk River Municipal Utilities and its employees, officials, and agents from and against all claims, actions, damages, losses, and expenses, including reasonable attorney fees, arising out of WH Security, LLC's negligence or performance or failure to perform its obligations under this Agreement. WH Security, LLC's indemnification obligation shall apply to its subcontractors, or anyone directly or indirectly employed or hired by WH Security, LLC, or anyone for whose acts WH Security, LLC may be liable. WH Security, LLC agrees this indemnity obligation shall survive the completion or termination of this Agreement. 5. Dispute Resolution. The Parties shall cooperate and use their best efforts to ensure that the various provisions of the Agreement are fulfilled. The Parties agree to act in good faith to undertake resolution of disputes in an equitable and timely manner and in accordance with the provisions of this Agreement. If disputes cannot be resolved informally by the Parties, the following procedures shall be used: 57 A. Whenever there is a failure between the Parties to resolve a dispute on their own, the Parties shall first attempt to mediate the dispute. The Parties shall agree upon a mediator, or if they cannot agree, shall obtain a list of court-approved mediators from the Sherburne County District Court Administrator and select a mediator by alternatively striking names until one remains. The Elk River Municipal Utilities shall strike the first name, followed by WH Security, LLC, and shall continue in that order until one name remains. B. If the dispute is not resolved within thirty (30) days after the end of mediation proceedings, the Parties may pursue any legal remedy. 6. Entire Agreement. This Agreement supersedes any prior or contemporaneous representations or agreements, whether written or oral, between the Parties and contains the entire agreement. 7. Assignment. WH Security, LLC may not assign this Agreement to any other person unless written consent it obtained by the City. 8. Amendments. Any modification or amendment to this Agreement shall require a written agreement signed by both parties. 9. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Minnesota. All proceedings related to this Agreement shall be venued in Sherburne County, Minnesota. 10. Government Data. WH Security, LLC agrees to abide by the applicable provisions of the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, and all other applicable state or federal laws, rules, regulations, or orders pertaining to privacy and confidentiality. 11. Waiver. The waiver by either party of any breach or failure to comply with any provision of this Agreement by the other party shall not be construed as or constitute a continuing waiver of such provision or a waiver of any other breach of or failure to comply with any other provision of this Agreement. 12. Notices. All notices and other communications pursuant to this Agreement must be in writing and must be given by registered or certified mail, postage prepaid, or delivered by hand at the address set forth below: Notice to Elk River Municipal Utilities: P.O. Box 430 13069 Orono Parkway, Elk River, MN 55330-0430 Notice to WH Security, LLC: Attn: COO PO Box 330 6800 Electric Drive Rockford, MN 55373-0330 13. Force Majeure.Neither Party shall be liable to the other or deemed in default under this Agreement if and to the extent that Party's performance is prevented by reason of force majeure. "Force majeure"includes war, an act of terrorism, fire, earthquake, flood, and other circumstances, which are beyond the control and without the fault or negligence of the Party affected and which by the exercise of reasonable diligence the Party affected was unable to prevent. 14. Savings clause. If any court finds any portion of this Agreement to be contrary to law, invalid, or unenforceable, the remainder of the Agreement will remain in full force and effect. 15. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original, and which taken together shall be deemed to be one and the same document. IN WITNESS WHEREOF, the Parties, have caused this Agreement to be approved on the date above. Elk River Municipal Utilities By. Its C.9t vt r uA to/10 5e r WH Security, LLC By: Ii016tOji_ArytiD Its roc) 5A EXHIBIT A Document Retention Schedule Description General Records Retention Schedule for Minnesota Cities dated July, 2013 ( a copy of which has been provided to and will be retained by WH Security, LLC) 60