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4.6. SR 11-04-2019 EGty1� ,.,�� Request for Action River To Item Number Mayor and City Council 4.6 Agenda Section Meeting Date Prepared by Consent November 4, 2019 Bob Pearson,IT Manager Item Description Reviewed by Fiber Agreement with the City of Rogers and Elk Lori Ziemer, Finance Director River School District Reviewed by Cal Portner, City Administrator Action Requested Approve,by motion, a Fiber Agreement with the City of Rogers to provide data storage and the Elk River School District to provide fiber connectivity. Background/Discussion Minnesota BCA and the League of Minnesota Cities strongly encourage cities to store data backups at an off-site location. Our current backup location is the Public Maintenance Facility located approximately three miles away from our data center. Distance is your ally when selecting a backup location especially if the location is fiber connected. The City of Rogers data center is approximately ten miles away and is served by a different energy provider. Staff believes a better backup location to store Elk River data would be the City of Rogers data center and partnering with them would benefit both cities. The ISD 728 has offered to provide the fiber connection between the two cities and the City of Rogers would provide space in their data center for Elk River to install data storage equipment. The City of Elk River,in return,would provide space in our data center for Rogers to install their data storage equipment. City data will be located in a secure location and all data will be encrypted to ensure that each city will be able to access their own data. Staff recommends partnering with the City of Rogers in hosting our data backups. The attorney for the City of Rogers created an agreement for the cities of Elk River and Rogers to provide storage space. The agreement also shares details for the ISD 728 to provide the fiber connection Financial Impact N/A Attachments ■ Fiber Agreement The Elk River Vision A PehoMing community 2a itb revolutionary and spirited resourcefulness, exceptional POWERED By service, and community engagement that encourages and inspires prosperity INAWRE1 Fiber Agreement City of Rogers Elk River School District City of Elk River This Agreement is entered into this day of , , between the City of Rogers, Independent School District No. 728 (“Elk River School District ”), and the City of Elk River, all being governmental units of the State of Minnesota. WHEREAS, City of Rogers and City of Elk River wish to locate equipment in the other party’s data center, and wish to establish fiber connections between their respective data centers, and; WHEREAS, the Elk River School District will provide fiber optic cables between existing city-owned fiber connected to each city’s data center, and; WHEREAS, the Elk River School District is willing to allow the cities to use two (2) fibers in such bundle for the foregoing purposes, and; WHEREAS, the Elk River School District fiber will be interconnected to City of Rogers fiber at the Rogers High School and to City of Elk River fiber located at the Elk River data center and; WHEREAS, the parties represent that they have complied with all applicable bidding and contracting laws in relation to construction of the fiber facilities referred to in this Agreement and are in a position, and have authority to provide access to their respective fiber optic networks as provided herein. WHEREAS, all parties agree that the Agreement will not be effective until it is approved by the governing body of each Party. NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Responsibilities of City of Rogers: a. The City of Rogers will provide all necessary fiber patch cables for the Fiber interconnections between the City of Rogers, City of Elk River, and Elk River School District. b. The City of Rogers will reserve 6U of rack space at City of Rogers Data center for possible use by the City of Elk River. The rack space will be in a secure environment that meets BCA standards. 2. Responsibilities of the Elk River School District: a. The Elk River School District will provide to City of Rogers and City of Elk River, during the term of this Agreement, the use of two (2) fiber strands each between the Rogers High School and the City of Elk River data center. b. The Elk River School District will allow the cities’ data traffic to transit through the Elk River School District fiber system at the physical layer only. That is, fiber optic cables transporting the traffic will be physically housed in hand holes, ducts, conduits, patch panels, and similar physical layer infrastructure owned and / or controlled by Elk River School District, but at no time will Ethernet frames, IP packets, ATM cells, or similar upper layer protocols be transported directly between the cities and The Elk River School District. 3. Responsibilities of the City of Elk River: a. The City of Elk River will provide to City of Rogers, during the term of this Agreement, the use of two (2) fiber strands from the Elk River School District fiber interconnection to the City of Elk River data center. b. The City of Elk River will allow the City of Rogers traffic to transit through its fiber system at the physical layer only. That is, fiber optic cables transporting the traffic will be physically housed in hand holes, ducts, conduits, patch panels, and similar physical layer infrastructure owned and / or controlled by City of Elk River, but at no time will Ethernet frames, IP packets, ATM cells, or similar upper layer protocols be transported directly between the City of Rogers and City of Elk River. c. City of Elk River will reserve 6U of rack space at City data center for hosting network equipment and data. The rack space will be in a secure environment that meets BCA standards. 4. Cost Allocation: a. Each party shall be responsible, at its own cost, for its own connectivity and access to the Internet or other services. b. Each party shall be responsible, at its own cost, for the cost of locates, relocates, and moving its respective fiber infrastructure. c. Each party shall be responsible, at its own cost, for repairing any breakage or maintenance of fiber for its respective fiber infrastructure. 5. Right to Access: a. The City of Rogers, the Elk River School District, and the City of Elk River and their respective authorized designees, may access any parties’ fiber optic facilities for the purpose described in this Agreement, subject to all necessary governmental approvals. Each Party must provide the other Party with seven days’ notice prior to such access, except in the case of emergencies. In an emergency, each Party may respond as necessary and must provide notice to the other party within two hours of action taken. Each party agrees to make arrangements to have their termination facilities available to maintenance personnel on a twenty-four hour, seven day a week basis. 6. Term: a. The term of the Agreement shall be for twenty (20) years and shall be automatically renewed in four-year increments unless terminated under section 6 hereof. 7. Termination: a. This agreement may be terminated by any Party at the end of the initial term or any extension thereof by giving 180 days written notice prior to the termination. Any party may terminate this Agreement for material breach 90 days after given written notice to the breaching Party describing in reasonable detail the nature, scope and extent of the breach if the noticed Party has not remedied the breach by that time. b. Notwithstanding the above, the use of the agreed upon fibers by City of Rogers, The Elk River School District, and City of Elk River shall survive the termination of this agreement and each organization shall continue to provide access to and maintain their fiber network for the term of the agreement and any renewal thereof and shall cooperate fully with each other to allow the continual operations of the fiber networks. Additionally, the Parties mutually agree to execute a successor agreement within a reasonable time that addresses the changed financial environment. 8. Authorized Representatives: a. Each Party shall designate a representative for purposes of administration of this Agreement (the “Authorized Representative”). Each Authorized Representative shall have authority for acceptance of services and shall be the point of contact under this Agreement. A party changing the designation of its Authorized Representatives shall notify the other Party pursuant to the notice provision of this Agreement. The following are the Authorized Representative: i. City of Rogers: City Administrator 1. Technical inquiries will be made to IS Director ii. The Elk River School District Authorized Representative: Executive Director of Business 1. Technical inquiries will be made to Manager of Technology iii. City of Elk River: City Administrator 1. Technical inquiries will be made to the IT Manager 9. Assignment: a. Except as specifically provide herein, the Parties shall not assign, transfer, or delegate any rights or obligations under this Agreement either directly or indirectly by any means, by operation of law or otherwise without the prior written consent of the other Parties, which consent shall be unreasonably withheld. 10. Amendments: a. This Agreement contains all the terms agreed to by the Parties and any promise or communications of any type not reflected in the Agreement are null and void. Any amendments to this Agreement shall be in writing and shall be approved by the governing Board of each party. b. Future alterations to any shared portions of the fiber network will be reviewed by all parties before any alterations occur. 11. Governing Law: a. This Agreement shall be governed by the laws of the State of Minnesota. 12. Notices: a. All notices and other communications required or permitted hereunder shall be given in writing and shall be: a) personally delivered; b) sent by telecopier, facsimile transmission or other electronic means of transmitting written documents; or sent to the Parties at their respective addresses indicted here by registered or certified U.S. mail, return receipt requested and postage prepaid, or by private overnight mail courier service. b. If personally delivered, such communication shall be deemed delivered upon actual receipt; if electronically transmitted, such communications shall be deemed delivered the next business day after transmission; if sent by overnight courier, such communication shall be deemed delivered upon receipt; and if sent by U.S. mail, such communications shall be deemed delivered as of the date of delivery indicted on the receipt issued by the relevant postal service. The Parties to this Agreement may change their address for the purpose of this Agreement by giving notice thereof in accordance with this section. 13. Force majeure: a. The Parties understand that acts of God, acts of civil or military authority, government regulations, embargoes, epidemics, war, terrorist acts, riots, fires, explosions, earthquakes, floods or other unusually severe weather conditions or other environmental disturbances or other circumstances not under the control of the Parties (“Force majeure”) may delay performance as set forth in this Agreement. In the event a Force Majeure event materially limits one or all of the Parties’ ability to perform under this Agreement such limitations shall not be considered a breach of the terms of this Agreement. 14. Liability: a. Each party shall be responsible for any loss, damage or injury to any person or property arising out of such party’s breach its obligations under this Agreement. Each party agrees to defend and indemnify the other party and its officers, employees and agents for any claims arising from its breach or failure to perform its obligation under this Agreement. Each party waives any claim for lost services, lost profits, indirect, consequential or special damages. Nothing in this Agreement shall constitute a waiver or limitation of any immunity or limitation on liability to which a party may be entitled to under applicable law including Minnesota Statutes, Chapter 466 or otherwise. 15. Insurance: a. Each party shall purchase liability insurance in an amount equal to or greater than the maximum liability applicable to municipalities set forth in Minnesota Statutes, Section 466.04, subd. 1, as amended. This requirement may be met through membership in a self-insurance pool. Each party shall name the other party as an additional insured to the extent necessary to meet its obligations under this Agreement 16. Dispute Resolution a. If the City of Rogers, the Elk River School District, and the City of Elk River cannot agree on any matter arising out of this Agreement, after a reasonable period of good faith negotiations, they agree to engage a qualified third party to mediate the disagreement, and share the cost of the mediator on an equal basis. The Parties will work in good faith with the mediator to find an acceptable solution and must reduce any settlement to writing. Any such agreement must be incorporated into and made a part of this Agreement. If a mediated agreement cannot be reached each Party has available to it all rights in law or equity. 17. Miscellaneous a. The failure of a Party to give notice of default, or to enforce or insist upon compliance with any of the terms or conditions of this Agreement, the waiver of any term or condition of this Agreement, or the granting of any extension of time for performance, shall not constitute the permanent waiver of any term or condition of this Agreement, and this Agreement and each of its provisions shall remain at all times in full force and effective until modified by the Parties in writing. b. This Agreement sets forth the entire understanding of the Parties. c. This Agreement shall be binding and inure to the benefit of the Parties hereto and their respective successors and assigns for its appointed authorized representative from Section 7. d. Each Party warrants and represents that it is duly authorized to execute this Agreement. e. The headings of this Agreement are inserted for convenience only and shall not constitute a part hereof. f. The Parties specifically recognize that this Agreement is entered into solely for the benefit of the Parties, and that any agreements with other third parties not acknowledged in this Agreement, to transport traffic by means of the Parties’ fiber facilities, is subject to approval by the City of Rogers, Elk River School District, and City of Elk River. IN WITNESS WHEREOF, the officers indicated below of the City of Rogers, the Elk River School District, and City of Elk River has signed this Agreement by authority of their respective governing bodies. CITY OF ROGERS By Mayor By Clerk ELK RIVER SCHOOL DISTRICT By Chair By Clerk CITY OF ELK RIVER By Mayor By Clerk