4.3 SR 12-18-2023Request for Action
To Item Number
Ma Tor and CinT Council 4.3
Agenda Section Meeting Date Prepared by
Consent December 18, 2023 Cal Pormer, Cit�T Administrator
Item Description Reviewed by
Arvig Broadband Access Grant Extension —
First Amendment Reviewed by
Action Requested
Approve, byT motion, the first amendment to the Broadband Access Grant Agreement with Tekstar d/b/a Arvig.
Background/Discussion
The Cit�T of Elk River and Sherburne Count�T entered into an agreement with Tekstar, d/b/a Arvig in April of
2022 to parmer on funding of federal American Rescue Plan Act (ARPA) funds to extend broadband services to
certain areas of the community `vhich qualified due to being unserved or underserved. The work `vas to be
completed by December 31, 2023.
The 2023 project area in noYtheast Elk River was hindered in development due to SherbuYne Countyr's CSAH 33
improvement project. Due to factoYs beyond their control, Arvig has asked the cit�r and countyr for an extension
of the contract to allow a completion date to 90 dayTs following the completion of Sherburne CountyT's work.
The Sherburne CountyT Board of Commissioners has approved a similar amendment to the agreement.
Financial Impact
N/A
Mission/Policy/Goal
Elk River Mission Statement
Attachments
■ Broadband Access Grant Program Agreement
■ First Amendment to the Broadband Access Grant Program Agreement
The Elk River Vision
A 2a�elcolning co�nlnunity 2a�ith T evolutiona� y and spizzted T esou� cefulness, exceptional
se�vice, and coln�nunity engagelnent that encou�ages and ins�iz•es pTo�pe�zty.
rowEREo ar
�I'1 ����
Up�iited.• August 2020
Agreement 2022-09
Broadband Access Grant Prvgram
Agreement
���
This Broadband Access Grant Progtam Agxeement (the "Gxant Agreement") is made and entezed into
this 4�' day of Apri12022 (the "Effective Date'7 by and between the Citp of Elk River, a political
subdivision of the State of Minnesota (the "City'�,13�065 Oron� Parkwap, Elk Rive� Minnesota 55330,
and Tekstar Conununications, Inc., d/b/a/ Arvig,150 2nd St. SW, Perh�m, Minnesota 56573 (the
"Gtaatee").
WHEREAS, to mitigate the economic disttess and disparities iri access to necessary
services caused or exacerbated by COVID-19, Congress passed the American Rescue Plan Act
(ARPA), to provide fvnding to shate and local govexnments to aid in the recovcry from the
pandemic.
WHEREAS, guidance issued by the federal government provides that ARPA funding
intends to cavex a variety of costs incutred by local governments in respondi.ng to and :nitigating
the effects ofCOVID-19, including investments to expand access to broadband infrastructure.
WHEREAS, ehe Citp has estabkshed the City of EIk River Broadband Access Grant
Program (the "Grant Pxogxam"), to provide grant funding to hroadband pxoviders to fuxther the
City's goal of universal bxoadband access.
WHEREAS, pursuant to the Grant Ptogram, grant recipients must comply with certain
terms and conditior� to ensure that broadband projects that receive assistance from the Grant
Prog,ram provide broadbatxd access that is xeliable and affordable, at acceptablc speeds and sexves
the long-term public interest
WHEREAS, the GxanY Pragram also requires grant recipients to comply with the Uaiform
Administradve Requirements, Cost Principles, and Audit Requirements for fedexal awards as
pxovided in 2 C.F.R. Paxt 200 (the "Utufornn Requuxements").
WHEREAS, Grantee has applied for a grant award for a broadband praject (the "Grant
Application") and has been selected by the city for gtant funding, subject to cotnpliance with the
Graz�t Progxam and this Grant Agreement.
WHEREAS, the City has detexmiued that Grantee has the characteristics of � beneficiary
of federal AR.PA funds and those certain aspects of the grant award might also be eonsidered a
"subaward" of federal ARPA funds, anci the County acr.ordingly intends to adopt those portions of
the Uniform Re,quirements applicable to beneficiaries and subawards as appropriate for the Grant
provided herein.
WHEREAS, cextain informadon required by the Uni%rm Requirements afie tn be included
as part o£ the graut fundingis provided on Exhibit" A attached to this Agxeement.
NOW TH�REFORE, The City and Grantee agree as follvws:
1. TERM ANi) AMOLTI�TT [�►F GR.ANT.
1.1 Effective Date i. 'This Gt�nt Agre�ment shall be effei�aive as of the Effeciive
Date aad shall expire on Decembe� 31, 2023, or when all obligations a�e fulfilled to the satisfaction of
the City, whichevex oc�s fixst, untess eatlier terininated pursuant to t�us Grant Agreemet�t
1.2 Grant Amo►ant. The total amount of the Grant is $301,305 (the "Grant Funds"). In no
event shall the City be obligated to reimburse Grantee fox eligible expenses that exceed the amount of
the Grant Fuuds, nor shall the City be ob3iged to make payineats putsuant #o this Gxant Agreement
from funds other than those xeceived by the Citp from the federal award identified on Exhibit B.
2. GRANTEE'S DUTIES AND RESPONSIBILITIES.
2.1 Installatior� of Broadband It�t7rovements. Grantee will construct and install a fiber
optic broadband network that will provide last-mile fiber to properties located witbin tlze pxo}ect
area map� attached as part of Exhibit C. Specifieally, Gxantee will a�quire, construct, install
bmadbaad infrast�ucture and provide access to bxoadband service to appxoximatelp 247 passing's in
the ptoject areas at speeds and at retail pxices as stated in the Grant Application, attached as
Exhibit C(the "Grant Project"). The broadband infrastructure shall have the capability ta scale to
speeds of at least 100 megabits per second dournload and 100 megabits per second upload
2.2 �,ontract Provisio�xs and P�yment of Contractors. Grantee must ir►clude in any
cor�txact and sub-grant, in addition to p�ovisians that define a souud a.nd complete agreement, such
prvvisions rhat require contractots and sub-grantees to comply with all applicable staxe and federal
laws. Grantee must ensute that all contractors and subconttactors performing work covered by tlus
grant z+eoeive }�y for satisfacturily completed �voxk. Grantee shall pay wages at or above the City's
muumum livable wage standards fot labot used in the installatioa of the project infi�asttucture. For
purposes of this requitement, the minimum wage standards shall be an hourlp wage ati nr above fhe
livingwage established by MIT far Sherbutne City (�t�ps�!l��vin��ge.mitedu/counties/27141.)
2.3 Time for Com�letion. Grantee sha11 complet� the Gxant Project witbia ihe time ftames
specified on Exlubit C.
2.4 Com�liance with Grant A�reement and Ap..,�licable X.��. Grantee shall fully comply
with thc terms of this Gxant Agreement and Gxant PYogr•am. Gxantee acktsowledges that the g,�ant
funds are subject to the Uniform Administrative Requitements, Cost Prindples, and Audit
Requirements for fedexal awards as provided in 2 C.F.R Part 200, and shall fully complywiththe
Special Conditions attached he.�eto as Exhibit$.
2.5 Dut�c� Make Conduit Available to Othex Pxo�vzders. No later than 10 peats aftet the
EifecCive Date, Grantee must make anp conduit installed within the public right of -wap as part of
the Grant Project available to other broadband providers through lease, license, or othex
Yeasonable terms to be detennined by the Grantee. This provisio�, shall surnive termination or
expiration of this Grant Agteement
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3. GR�INTEE'S CERTIFICA NS.
Grantee makes the follawing representations and certi�cations and understands that its
representations and cextiflcation in this Grant Agreement and the Grant Application are matetial
tequitements of the Grant award:
(a) Grantee has the full right and power to enter and pe�form this Grant Agreement.
(b) Gtantee has secured all necessary funds to camplete the Grat�t Project,
(c) To the best of Gtantee s knowledge and based on accessible infotmation, Grantee certifies that
thexe are no existing agreements or plans for Grantee or anp other providex to provide broadband
service to the Grant Project area.
(d) Except for the contributing grant funds £rom the City of Elk River as refeteneed in section 4.4 of
this Grant Agreement, Grantee has not a.n,d will not receive any ot�er awa:rd of state or federal
funds in connection with the Grunt Project
4. PROJECT BUDGET AND PAYMENT OF GRANT FUNDS.
4.1 ud et Grantee shall complete the Grant Project in accordanee with the Grant
Project budget attached as Exhibit D(the "Budget"). The Budget does not include an allocation
of Grant Funds £or reimbursement for any indirect costs. Any amettdments to the Budget tnust be
appxoved iti writing bq both the citp and the Grantee. The total estitnated amouxit of the Grant
Project is $2,009,197.00. .All costs and expenses exceeding the amount of the Grant Fuads shall be
the tesponsibility of the Grantee.
4.2 a 1x7�en of Funds. The City agrees to reimburse Grantee for costs actually incurred
and paid, or to be incurred or paid, by Grantee in accoxdance with the Budget in an arnount not to
exceed the tatal amount of the Gxant Funds. Grat�tee may submit to the City itemized requests for
payments of Grant Funds in advaace of purchasing material, equipment, and labor,provided that
such puxchases are cox�sistent with the Budget and will be incurred within a reasonable time
following papme�t. Requests fox payment will include documenta.tion from the Grantee
demonstrating that all procurements for which payment is requested have been ox will be made in
accordance with this Grant Agreement, along with any other infoxmation and documentation
requested by the City to ensuxe compliance with this Grant Agreement Payment will be made
upon submission bp Grantee of a pzaperlp executed request for payment, along with all supporting
invoices, hills, time sheets, and oth�x documents necessaxy to justify the payment
4.3 Lisnitations o� x�enditutes• Grantee shall not be reimbursed or othexnvise
compeusated for any expenditures incurred prior to the E£fective Date or followibg the earIier of the
expiratio�n ot tetmination of this Agreetnent. The City shall only xeirnburse Gzantee for
documented eacpenses incuYted and expended in accordance with all applicable requixements for the
expenditure of funds payable under this Graut Agreernent.
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4.4 Re uirement to Re 3oxt Potenti ll= Du lic tive Fundin . The City acknowledges it
will be contributing grant £unds to the Grant Project as identified in the City's Resolution No. 22-5.
If Grantee receives any other awaxd of fedexal, state, or local fiands during the petiod of
performance for this Gtant awatd, Grantee must determine whether the funds from such other
source a�re eligible for use in one or more of the items ide.ntified iri the Budget. If so, Gxantee
must prompfly notify the city in writing of the potential duplica.tion. The city will deterinine, in
consulta.tian with Grantee, whether any modification of the Budget or anp change in scope of the
Grant Project is necessary to eliminate iaappropriate duplication of £unding.
5. AUTHURIZED REPRESENTATIVES.
Cal Pormer, City Administtatot, shall serve as the AuthoYized Representative of the City and as
the liaison with Grantee. The City will inform Grantee of any changes to its Authorized
RepresenYative at any �ime during the term of this Gxant Agteement The Authorized
Representative has the responsibility to morritor Grantee's performauce. Gtantee shall submit
reports, iuvoices and other materials prepared pursuant to this Agxeement tv the City's
Authorized Representative, by mailing or delivering them ta: Cal Portncr, City Aciministrator,
230G5 Oxono Parkway, Elk Rivet, MN 55330, C��o�merC�.elkrivermn.�xov.
The Gtantee's Authorized Representative is David S. Schornack, Director af Business
Dev�elopment and Sales,150 2°a St. SW Petham, MN 5G573, david.schomack�atvig.com.
Grantee's Authorized Repxesenta,tive shall be responsible for ensuring Grantee's compliance with
the textns of this Grant Agreement. If the Gxa�tee's Authorized Representative changes at anp tune
during the term ofthis Grant Agreement, Grantee must itn�nediateiy notify the City.
6. REMEDIES POR NONCOMPLIANCE; TERMINATION.
G.1 Te�atian k�yr Ci���. Ifthe City determix�es that Grantee has failed to complq �with
an.y t�n, condition ar requirement of this Grant Agreement, t�e Citq map, in its discxetinn,
suspend ox termuxate this Grar,t Agreement or esercise any other remedy far �no�compliance as
pxovided far in 2 CFR 200.339. Failute to compiy with any requirem�nt of this Grant Agteement
includes butis not iimited to the following:
(a) Failuxe to comply with any of t]ie rules, regulations ox provisions referred to herein, ox such statutes,
xegulations, guidelines xelating ta the use of the Grant Fnnds as may become applicable at any time.
(b) Failure, fot any xeason, of Grantee to fiiifill in a timely and pxoper mattnex iCs abligatians iunder this
Grant Agteement
(c) Ineffective or impropet use of Grant Futids; or
(d) Submissian bp Gxantee to the City of any reports, audits or other documentation that axe incorrect
ox imcomplete in any material respect.
�
The City will prompdy noti.fy Grantee in writing of its determination and the reasons fox the
texmir�,ati.on tagether with the date on which the tem�itiation shall take effect. Upon termination, the
Citp retains the xight to recover any impxopex expenditutes from Gzantee and Grantee shall return
to the City any improper expenditures no later than thirt.y {34) days after the date o�termination.
6.2 Termii�ation for Convenience. Pursuane to 2 CFR 20Q Appendix II (B), this Gxant
Agreement may also be Cernninated for convesuence by either the City or Grantee, in whole or in
part, by setting £orth the reasons for such ter�unatio�, the effective date, and, in the case of partial
termination, the partion to be terminated. If, in the case of a pattial termirsation, the citq
detertnines that the remair�ing portion o£ the Grant award will not accomplish the purpose for
which the awaxd was made; the city may terminate the award ir� its entirety. In the evex�t this Grant
AgYeement is terminated by Grantee for convenience prior to completion of the Grant Proyect,
Grantee shall pxompdy return to the City all Grant Funds received by Grat�tee.
7. RELATIONSHTP BE'�'WEENTHEPARTIES.
7.1 nde enden r� txactor. Nothing in this Agreement shall be construed as creating
the relationship of co-partners, jaint ventures, or an association, aor shall Grantee, its emplopees,
xepresentatives, or contractors be considered employees, agents, ar representatives of the City. Alt
personnel of Grantee or other persons engaged in the performance of the Grant Project will not
have a relaiaonship with the city and will not be considered amployees of the caty. Such persannel
or other persons shall not be entitled to any comperisadon, rights, ar benefits of any kind from the
Ciry, including, without limitation, Workers Compensation, medical care, disability, severance pay
and retirement benefits.
7.2 N enc . The City will not assume or accept any agreement, representadott,
commitmesit, at warranty made by Grantee, nor shall the City be Qbligated for damages to any
pexson or organization for personal injuries or property datnage dixecdy or indirectly arising out of
Gxatitee's conduct or caused bp Grantee's negligence, willfui act, ar failure to act.
$. INDEMNIFICA'I'IU.�i.
The Grantee must indemnify, save, and hold the City, its vfficers, agents, and emplopees harmless
fram any claims or causes of action, including attorney's fees incurxed by the City, arising from the
petformance of tl�is Grant Agreement by the Gratitee ox the Gra.ntee's ageats, cantractors, ar
employees. This clause will not be construed to bar any legal remedies the Grantee ma.y have £or
the City's failuxe to fulfiil its obligations under this Grant Agreement
9. GOVERNMENT DATA PRACTICES.
The Grantee aud the City must comply with the M#nnesnta Govexnment Data Ptactices Act,
Minn. Sta� Ch. 13, as it applies to all data created, colleeted, xeceived, maint�ined, or disseminated
uttder this Grant Agteement. If Grantee receives a xequest to release data xeferred to in this
sectian, Gxantee must immediately notifq the city. The City will give Grantee instructions
concex�ing the release of the data to the requesting party before data is teleased. The Grantee's
response to the request sha11 camply with applicable law.
10. AUDIT.
Graz�tec shall maintain complete and accurate xecords vsrith respect to pexfotmance of the
Grant Project and costs incurted putsuant to this Grant Agxeement for a period of at least six
(6) years aftex the terminatio� af this Agrecment. Pursuant to Minn. Stat. § 16C.05, Subd. 5.
Gxantee shall allow the City ar other persons, ox agencies authorized by the City access to the
re'cords of �rantee at reasonab�e houts, including all books, records, docume,nta, atid
accounting procedures and practices of Grantee xelevant to the subject matter of the
Agreeincnt, fox purposes of audit.
11. SURVIVAL OF TERMS.
The provisions of this Grant Ag�reement which, bq their terms, impose obligations that are
continuing in nature and which must susvive in oxder to give effect to their meaning will
survive the expitatian or termiiiation of this Agreement, including, without lirizita.tion, the
following clauses: Sections 2.5 (Duty to Make Conduit Avaitable to Other Providers), 6
(relating to remedies for noncompliance); S(Indetnnification); 10 (Audit);12.3 (Govetning
Law; Jurisdictioa; Venue); and the Special Conditions identified on Exhibit B.
i2. GENERAL PROVISIONS.
12.1 _Entir.e A reement: Amendments; Conflicts. This G�ant Agreement (irirludiix.g the
exhibits attached hereto) constitutes the entire agteement arid understanding of the parties with
respect to the subject matter hereof and supersedes all prior and contemporar�eous agreements,
documet�ts, and proposals, oral or wtitten, betweett the parties with xespect thereto. The terms
and conditions of th.e exhihits are integral parts of this Agreement and axe fully incorporated
herein by this reference. Anp amendment or modification to this Agreement shall not be valid
unless such amendment or modificatior� �i) is in writing aad signed bp authorized
representatives of both parties and (u) references this Agreeme�t Notwithstaading the
Eoxegoirig, the City map, in its discretion, atnend this Grant Agreement if �eyuired to con£orm
with rederal or State reguiations and guidelines, and avaitable fiinding amounts.
12.2 Com}�]'ssnce with A�a�licable Law. Grantee agrees to comply with applicable
fedexal, sta.te, and local laws or orclitiances, and applicable rules, xegulatione, and standards
established by any agency of such governmet�tal units, which are isa effect as of Grantee s
performance of the Grant Projec�
2 2.3 Governin� I,aw; � diction; Venue. This Grant Agreement shall be governed by
the laws of the State of Minnesota, withaut regatd to its conflict of laws rules. For purposes of
conflict xesolution related to or arising out of tlus Agreement, the parties expresslp agree that
venue shall be exclusively in the State af Minnesota, City of Elk Rivex. The parties hereby
expressly consent tn the exclusive pexsonal authority of the federal and staCe c�urts located in
the State of Minnesota., regardless of the citizenship or residency of either party at the tim.e of
the commcncement of any legal proceeding.
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12.4 Debarment Gzantee certifies that it is not ptohibited from do:ing business with
either the federal government or the State of Minnesota because of any c3ebarment or suspension
proceedings. Grantee' s certification is a material representation up�n which rhe County's
approval of this Agreement is based. Grantee shall pxovide immediate written notice to the City's
autharized representative if at any time Gxantee learns that this cextification is erro�neous ar
becomes erroneous due to changed eircumstances,
12.� Ec�ual E�tn�loyment O�ortunitv. Tn connection with the execution of this
Agreement, Grantee agtees that it will comply with Minn. Stat � 363 A.08, tv not discrlminate
against anp employee or applica.nt for employment because of ra.ce, color, creed, religion, �national
original, sex, marital status, status regarding public assistance, membership or activity in a local
commissian, disability, sexual orientation, or age, Gza�ntee and all its subcontractoxs will take
affirmative actions to ensure that applicat�ts are etnployed, and that during etnpiopment,
employees axe treated withont regard to Eactors stated in Mirin. Stat. § 363A.08. Such actions shall
include, but �not limited to, the followirig: hiring, tenure, compensation, texms, upgrading,
conditions, facilities, or privileges of ernployment
i 2.6 Worker's Caxnaensation. Grantee certifies that it is compliant v�►ith Minn. Stat. ,� 1
76.181, subd. 2, pertaining tn workers' compensation insurance coverage. The Grantee's
emploqees and agents will not be considered City enr�ployees. At�y claims that nnay a�zae under the
Minnesota Workers' Compensation Act on behalf o£ these emplopees and anp rlaims made by
any third partq resulting because of any act oz amission on the part of these ernployees are in no
way the City's obligation orresponsibility.
12.7 Conflict of Interest Grantee a£firms that, to the best of Grantee's knowledge,
Grantee's a�nvoIvement in this Grant Agreement does not result in a conflict of interest with any
paxry or entity, which may be affected by the terms of this Agreement. Grantee agrees that,
should any conflict or potential conflict of intex�est become known to Grantee, it will immediately
notify the city of the conflict ar potenrial conflict, specifying the patt of this Agteement giving
rise to the conflict or potential conflict, and will advise the city whether Grantee vvill or will not
resign. f�am the othex engagement or representation.
12.8 Assi �nta�ent and Dele ation. Neithex garty shall assign its rights ox delegate its
duties under this Grant Agreement without receiving the prior written consent of the other party.
12.9 Successors in Interest Th:e provisians of this Grant Agxeement shall be binding upon
and inure to the benefit of the parties and theix pe=mitted successors and assigns.
12.10 Severabilitv. If any portion of this Grant Agreement shall be held to be invalid, such
invalidity shall not affect the validity of the remaindex of this Agreement.
12.11 Execution. This Agreement xnay be executed in one or more counterparts, each of
which shall be deemed an ariginal and to tonstitute the same i»strument. Electronic copies of this
Agreement, including without limitation, those rtansmitted by facsimile or scanned to an image file,
shall be cbnsidered originals.
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IN WiTNESS WHERE(JF, the parties hexeto have executed this Agreement to be effective
as of the Effective Date set forth above.
CITY OF ELK RNER
1M� of
Title �
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Date
TEKSTAR COMMUNICATIONS
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Print Name
First Amendment to Broadband Access Grant Program
Agreement
This First Amendment to Broadband Access Grant Program Agreement (the "Amendment") is
effective this 7�' day of December 2023, (the "Effective Date") and is intended to modify that
certain Broadband Access Grant Program Agreement dated April 4�', 2022, by and between the
City of Elk River, a political subdivision of the State of Minnesota (the "City"), 13065 Orono
Parkway, Elk River, Minnesota 55330, and Tekstar Communications, Inc., d/b/a Arvig, 150 2"a
St. SW, Perham, Minnesota 56573 (the "Grantee").
The GrantAgreement section 1.1 is amended as follows:
The Grant Agreement shall now expire 90 days following the completion of Sherburne County's
CSAH 33 (205�' Ave NW) project, or when all obligations are fulfilled to the satisfaction of the
City, whichever occurs first, unless earlier terminated pursuant to the Grant Agreement.
Except as set forth in this amendment, the Grant Agreement is unaffected and shall continue in
full force and effect in accordance with its terms.
In wimess whereof, the parties hereto have executed this Amendment to be effective as of the
Effective Date set forth above.
City of Elk River
Tekstar Communications, Inc.
By: By:
John J. Dietz
Print Name
Mayor
Title
Date
Print Name
Title
Date
By:
Tina Allard
Print Name
Ciry Clerk
Title
Date