HomeMy WebLinkAboutItem 06.aa
Date: Item No.
Dakota County Broadband Joint Powers Agreement
Proposed Action
Staff recommends adoption of the following motion: Move to accept and enter into a joint
powers agreement for the formation of the Dakota County Broadband Board.
Overview
The City of Lakeville IS Staff has been involved with Dakota County and cities within Dakota
County on the Dakota County Broadband initiative. In forming a consortium, the cities and
county could effectively leverage existing and future fiber optic network assets to benefit all
members. Information was provided at the July 21, 2017 City Council work session for review
and discussion. IS Staff was directed by council to move forward on this initiative. A formal Joint
Powers Agreement (JPA) has been created and is being presented for the City of Lakeville to
become a member of the consortium. All Dakota County cities (with the exception of Eagan) are
adopting this agreement, and Dakota County and the Dakota County CDA have approved it as
well.
The four key goals for forming the consortium and entering the JPA are:
• Create and manage a high performance institutional network (I-Net) amongst the JPA
members.
• Provide management of fiber and conduit lease agreements and indefeasible rights of use
(IRU) between members.
• Use the I-Net to enable pursuit of lower cost price agreements for variety of services
including Internet access.
• Create a commercial network infrastructure (C-Net) in Dakota County to enhance
economic development within the county.
Upon acceptance of the JPA, the consortium will be organized and implemented in January 2018
and will be governed by a board made up of members of the accepting entities.
Primary Issues to Consider
Does entering the JPA benefit the City of Lakeville?
Entering the JPA provides several key benefits to the City of Lakeville:
• Costs for maintaining the City’s fiber optic network and fiber optic network lease fees
with Dakota County would be included in the annual fee.
December 18, 2017
• The City fiber optic network would gain redundancy to City buildings and the Internet
from multiple access points on the I-Net.
• The City could potentially receive a share of the revenue generated by the C-Net.
Supporting Information
• Dakota County Broadband Board JPA - v20 11-30-17 Final
• Overview of the JPA
Financial Impact: $25,773 – 1 Time Capital Investment, $ 31,000 est. Annual Membership Fee
Budgeted: Y☒ N☐ Source: General Fund
Related Documents: (CIP, ERP, etc.):
Envision Lakeville Community Values: Good Value for Public Services
Report Completed by: Ralph Vetter, I.S. Manager
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OVERVIEW OF THE JPA – 11-20-17
Goals of the JPA
• Create a high performance institutional network (I-Net) for efficient management of physical
network assets owned among the members (e.g. telecom conduit, fiber cable, handholes, cabinets,
network equipment).
• Provide improved management of fiber and conduit lease agreements and IRUs.
• Use the I-Net to enable more efficient and lower cost price agreements for a variety of IP-based
services, including Internet, network services, and other services that could benefit from shared
member purchases.
• Create a commercial network infrastructure (C-Net) in Dakota County to enhance business
attraction, business retention and jobs creation. The C-Net will provide wholesale access to private
sector service providers to deliver a variety of services to business, commercial and residential
customers. The JPA will not be a retail provider of services to businesses and residents in Dakota County.
Cost Sharing
Implementation of the concept will include three kinds of costs:
• One-time capital costs for the I-Net,
• One-time capital costs for the C-Net and
• Operational costs.
Prospective members will need to know what the proposed costs are for them. The following chart
shows the cost sharing, based on the principals articulated in the Plan.
One-Time Capital Costs for the I-Net
It is proposed that the city members bear the cost of providing and installing their switches and the
accompanying optics as well as any costs relating to furnishing an appropriate location for the
equipment at their sites. They will also bear their proportionate share of splicing and other construction
related costs. They must also bear the costs of any lateral fiber cable necessary to reach their site (no
municipal member would be required to install more than 2,000 feet of fiber optic cable). Dakota
County would fund the costs of lateral fiber optic cable installations of more than 2,000 feet and would
also fund the costs related to the core nodes necessary to run the I-Net.
One-Time Capital Costs for the C-Net
The Plan proposes that the Dakota County Community Development Agency (CDA) fund this one-time C-
Net cost. This is seen as a continuation of the CDA’s ongoing role in fostering economic development in
the County.
Operational Costs
The Plan proposes to share operational costs based on a series of distribution parameters. The general
rule governing these parameters is that members who own larger portions of the infrastructure that will
be operated and managed on their behalf will bear a proportionately larger share of the operational
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OVERVIEW OF THE JPA – 11-20-17
costs. Considerable effort has been expended to inventory existing assets to provide a basis for this
sharing. More work remains. The chart reflects assets whose details have been confirmed by as-built
records and physical inspection. This is most of the system but additions to the inventory will be made
throughout this calendar year. It is also important to remember that members, especially the municipal
members, will be adding to the system as time passes—adding to their share of the assets managed by
the consortium. Thus, this cost sharing chart will be updated each year, modifying the members’ relative
costs sharing based on changes that have occurred during the year.
Revenue Sharing
There has been consensus from the earliest discussions on this concept that the primary goals of the
effort are to enhance governmental operations through the I-Net and to foster economic development
through the C-Net. “Profit” has never been the primary consideration. Nevertheless, revenue will be
generated from the operations of the C-Net. Prospective members need to understand how they might
share in that revenue if and when it is generated. The Plan proposes that revenue be shared based on
three concepts – a portion would be retained by individual city members who sponsor the C-Net
implementation within their city limits – 45%. A larger share will go to those members who have
provided and will be providing the infrastructure necessary to make the I-Net and C-Net functional –
50%. This infrastructure share will in turn be shared based on the portion of the infrastructure provided
by each member.
Finally, the plan proposes a 5% share of any C-Net revenue to be dedicated to a “pool” to be shared by
all members in proportion to their population. The reasoning there is that by the time the I-Net and C-
Net are mobilized all members will be providing some portion of the infrastructure and that the county-
wide nature of the consortium provides a value in and of itself.
The amount of overall C-Net revenue that may be available and the timing for when that revenue will
begin are very difficult to predict. The report authors believe that revenue clearly will be generated at
some point. In order to DEMONSTRATE how these principals might play out, example revenues for the
various members were assumed to show what percentage of the overall revenues would accrue to the
various members based on those assumption. That exercise is the genesis of the Revenue Sharing
column in the chart. Please bear in mind that the numbers and percentages will vary based on the
revenues that are ultimately generated.
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OVERVIEW OF THE JPA – 11-20-17
Note 1 - The revenues shown are based on a series of assumptions regarding C-Net revenues in each
member’s territory. The numbers are intended only to demonstrate how the revenues may be shared.
C-Net expansions in the municipalities will directly affect their shares.
Member I- Net "Gap" Project Operational Costs EXAMPLE Revenue C-Net "Gap"
Capital Costs Sharing - 2 Capital Costs
$%$%$%$%
Apple Valley 27,566$ 1.7%27,584$ 5.1%29,644$ 8.1%-$ 0.0%
Burnsville 112,267$ 6.8%82,079$ 15.1%76,663$ 21.0%-$ 0.0%
Dakota County 1,151,544$ 69.8%333,215$ 61.3%143,250$ 39.2%-$ 0.0%
Eagan -$ 0.0%-$ 0.0%-$ 0.0%-$ 0.0%
Farmington 34,941$ 2.1%7,635$ 1.4%11,960$ 3.3%-$ 0.0%
Hastings 25,773$ 1.6%17,197$ 3.2%15,482$ 4.2%-$ 0.0%
Inver Grove Heights 93,682$ 5.7%9,308$ 1.7%12,391$ 3.4%-$ 0.0%
Lakeville 25,773$ 1.6%31,000$ 5.7%30,878$ 8.5%-$ 0.0%
Mendota Heights 93,682$ 5.7%7,277$ 1.3%11,623$ 3.2%-$ 0.0%
Rosemount 30,290$ 1.8%8,094$ 1.5%11,987$ 3.3%-$ 0.0%
South St. Paul 28,150$ 1.7%9,068$ 1.7%10,155$ 2.8%-$ 0.0%
West St. Paul 25,773$ 1.6%11,343$ 2.1%10,967$ 3.0%-$ 0.0%
Dakota County CDA-1 -$ 0.0%-$ 0.0%-$ 0.0%339,178$ 100.0%
Total 1,649,441$ 100.0%543,800$ 100.0%365,000$ 100.0%339,178$ 100.0%
JOINT POWERS AGREEMENT
DAKOTA BROADBAND BOARD
November 30, 2017
Table of Contents
1. Statement of Purpose and Powers to be Exercised ............................................................................... 1
2. Manner of Exercising Powers; Creation of Dakota County Broadband Board .................................... 1
3. Defined Terms ...................................................................................................................................... 1
4. Participant ............................................................................................................................................. 3
5. Board ..................................................................................................................................................... 4
6. Acquisition of Interests in System Components ................................................................................... 7
7. Ownership of System Components ....................................................................................................... 7
8. Expansion of System ............................................................................................................................. 8
9. Operating and Maintenance Cost Sharing......................................................................................... 8
10. Financing Initial I-Net and Initial C-Net Capital Improvements ..................................................... 8
11 Revenue Generation .......................................................................................................................... 9
12. Establishment of a Relocation Pool; Submission of Capital Plans ................................................... 9
13 Default; Remedies ........................................................................................................................... 10
14. Limitation of Liablity; Indemnification .......................................................................................... 10
15. Termination of Board; Disposition of Assets.................................................................................. 11
16. Amendments ................................................................................................................................... 11
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THIS JOINT POWERS AGREEMENT (as amended from time to time, this “Agreement”)
is entered into as of ___________ (Effective Date), by and between the parties described on
Schedule A attached hereto (the “Initial Participants”), pursuant to Minnesota Statutes, Section
471.59.
1. Statement of Purpose and Powers to be Exercised. The purpose of this Agreement
is to provide for the joint exercise of the statutory powers common to the Participants (defined
below), pursuant to Minn. Stat. § 471.59, to establish, operate, maintain and improve the System
(defined below) for use by the Participants and potentially other users including, but not limited
to: the power to enter into agreements necessary or convenient to the exercise of such powers; to
establish fees and charges with respect thereto; to acquire, own and convey real or personal
property; to issue bonds or obligations under any law under which the Participants may
independently issue bonds or obligations, and use the proceeds of the bonds or obligations to carry
out the purposes for which the bonds or obligations are issued; and to take such other actions
reasonably necessary to the establishment, operation, maintenance and improvement of the System
(together with other powers described herein, the “Joint Powers”). Notwithstanding any other
provision of this Agreement, the joint powers organization created by this Agreement shall not
have: any power of eminent domain; any taxing powers; any power to pledge the full faith or
taxing power of any of the Participants for any purpose whatever; or to issue general obligation
indebtedness of any Participant.
2. Manner of Exercising Powers; Creation of Dakota Broadband Board. The Joint
Powers of the Participants will be exercised through a joint powers board, which is hereby created,
to be designated the Dakota Broadband Board (the “Board”), having the powers and duties
described herein. The Board is authorized to exercise the Joint Powers on behalf of and in
cooperation with the Participants as provided herein.
3. Defined Terms. Capitalized terms used herein shall have the following meanings:
“Access Fee” means an annual fee paid by each Participant as described in the System Plan
or bylaws of the Board, which will include, but not be limited to, a fee (which shall be an equal
amount for each Participant) in exchange for the Participant’s use of the I-Net.
“Access the System” or “Accessing the System” means that a Participant has at least one
System Component that is connected to elements owned by other Participants and is relying on
the Board to operate and maintain the System Component(s) on its behalf.
“Agreement” has the meaning given in Section 1 of this agreement.
“Annual Participation Fees” means all payments made to the Board by Participants
including but not limited to Access Fees, the Basic Membership Fees and Operations and
Maintenance Fees.
“Backbone” the central portion of the network consisting of redundant optical fiber ring
segments interconnecting diverse communications network elements (switches, routers, etc.),
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including connections at the colocation facility or facilities. Generally, the backbone capacity is
greater than the networks connected to it.
“Basic Membership Fee” means an annual fee paid by a Participant regardless of whether
or not it accesses any part of the System.
“Board” has the meaning given in Section 2 of this Agreement.
“C-Net” means the use of the System on any basis other than by the Participants for
governmental purposes.
“CDA” means the Dakota County Community Development Agency and its successors
and assigns.
“Drops” means the fiber optic cable and associated equipment necessary to serve individual
retail customers. Drops typically begin at a handhole and terminate in the building of the retail
customer.
“I-Net” means the use of the System by the Participants for governmental purposes.
“IRU” or “Indefeasible Right to Use” means agreements between a Participant and the
Board, on behalf of itself and all other Participants, with respect to the use of System Components
in which the Participant has an ownership or other legal interest.
“Initial Participant” has the meaning given in the Preamble of this Agreement.
“Joint Powers” has the meaning given in Section 1 of this Agreement.
“Lateral” means a fiber optic cable that is not part of the Backbone but instead extends
fiber optic access into areas away from the Backbone.
“Operating and Maintenance Costs” means all expenses relating to the operation and
maintenance of facilities controlled by the Board or used in connection with the System, including
but not limited to, labor, contracted services, energy costs, monitoring costs, system configuration
cost, switch-related costs, relocation costs, break repair costs, marketing costs, insurance, taxes,
fees or similar charges.
“Participant” means the Initial Participants to the Agreement and each other qualified
governmental unit satisfying the requirements of Section 4.B after the Effective Date of this
Agreement, but excluding any governmental unit that has withdrawn from the Board pursuant to
Section 4.D hereof.
“Supermajority” means a vote of two-thirds of the members of the Board, counted as one
vote per member or on the basis of Weighted Voting, when required.
“System” means the telecommunication infrastructure necessary for the Participants to
collectively provide more robust broadband, I-Net and C-Net services within Dakota County,
including, without limitation, System Components and other network elements together with
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contract rights and agreements necessary or convenient in connection with t he operation,
maintenance, development and use of such components.
“System Components” means the various necessary or convenient elements of the System,
including, without limitation, fiber optic cables, hand holes, switches and routers.
“System Plan” means the plan defining both the physical aspects of the I-Net and C-Net
System and the methods for funding or financing the costs associated with the operation,
maintenance, and development of the System, as more fully described in Section 18 of this
Agreement.
“Weighted Voting” means a vote of the Board in which each member’s vote is weighted
by the proportion that the Operations and Maintenance costs allocated to the Participant the
member represents bears to the total Operations and Maintenance cost during the year in which
the vote is taken; provided, however that no prevailing vote will pass without the support of at
least three members.
“Withdrawing Participant” means a Participant that has given notice of its intent to
withdraw from the Board pursuant to Section 4.D.
4. Participant.
A. General. A county, city, town, school district, or other local unit of
government whose jurisdiction is within Dakota County, and who has the authority to
exercise the Joint Powers under Minnesota Statutes may be a Participant.
B. Additional Participants. In addition to the Initial Participants, any
government entity described in Section 4.A is eligible to be a Participant, subject to the
prior approval of the Board, by:
i. executing and delivering to the Board a counterpart signature page
to this Agreement, indicating its acceptance of the terms and conditions hereof;
ii. satisfying such other conditions mandated by the Board at the time
as a condition to becoming a Participant.
C. Annual Participation Fees. The Board shall establish and collect, and the
Participants shall pay non-refundable Annual Participation Fees. Withdrawing Participants
shall continue to pay Annual Participation Fees due and payable during any required notice
period under Section 4.D hereof. The Board shall not impose the Basic Membership Fee
on the CDA unless the CDA is a Participant and is accessing the System.
D. Withdrawal of Participants.
i. A Participant that has not provided any System Components may
withdraw, effective immediately, by providing written notice to the Chair of the
Board.
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ii. A Participant that has provided System Components may withdraw
by providing not less than eighteen months advance written notice to the Chair of
the Board, and by paying to the Board a “withdrawal payment .” The withdrawal
payment shall be determined through a good faith negotiation between the Board
and the Withdrawing Participant. The purpose of the withdrawal payment is to
require a Withdrawing Participant to pay actual and direct expenses incurred by the
Board or another Participant which are reasonably related to the Withdrawing
Participant’s withdrawal including, without limitation, System Components
relocation costs, leasing costs, and permit fees. If the Board and the Withdrawing
Participant are unable to reach an agreement on the amount of the withdrawal
payment, the disagreement shall be settled by binding arbitration, or in such other
manner as is acceptable to the Board and the Withdrawing Participant. The amount
of the withdrawal payment may be reduced to the extent the Withdrawing
Participant and the Board enter into agreements which extend the Board’s right to
use System Components owned or controlled by the Withdrawing Participant. The
provisions of Section 6.C hereof regarding termination of IRUs will continue to
apply to Withdrawing Participants for the duration of any IRU.
iii. The withdrawal of a Participant will not, in and of itself, modify any
IRUs or similar agreements executed by the Withdrawing Participant related to the
use by the Board or other Participants of System components owned by the
Withdrawing Participant. The term and termination of such IRUs and similar
agreements are governed by the provisions in each individual IRU or similar
agreement. In addition, each Withdrawing Participant shall remain liable for all
financial liabilities incurred during the period it was a Participant, but shall not be
liable for any new financial liabilities incurred after the date of delivery of its notice
of withdrawal.
iv. Notwithstanding the eighteen month notice required for withdrawal
under Section 4.D.ii above, the Board and the Withdrawing Participant may
negotiate a shorter notice period in exchange for an additional payment by the
Withdrawing Participant, designed to satisfy ongoing financial obligations of the
Withdrawing Participant to the Board.
v. To the extent that IRUs granted by the Withdrawing Participant to
the Board for System Components owned by the Withdrawing Participant continue
beyond the withdrawal date, the obligations of the Withdrawing Participant to pay
associated Operating and Maintenance Costs for such IRUs will survive
withdrawal.
5. Board.
A. Creation. A joint powers board, known as the Dakota Broadband Board, is
hereby established for the purposes contained herein with the powers and duties set forth
in this Agreement.
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B. Members. Each Participant that is accessing the System is entitled to
appoint two members of its governing body as a member and an alternate member to the
Board. The terms of each member and alternative member shall be as established in by-
laws to be adopted by the Board, but in any event, shall terminate at such time as the
member or alternate member ceases to be a member of the governing body of the applicable
Participant.
C. Committees. The Board may appoint standing and ad hoc committees
including, without limitation, an operations committee, with the powers to be described in
the Board’s bylaws.
D. Governance-Voting. As shall be required in bylaws to be adopted by the
Board:
i. Actions of the Board will be taken by vote of the Board in which
each member of the Board shall have one equal vote unless Weighted Voting is
required. Decisions will be made by a majority of the votes cast except where a
Supermajority is required.
ii. Weighted Voting is required: to approve or revise the System Plan;
to approve periodic budgets, including required contributions to be made by each
Participant in support of such budgets; to employ any personnel of the Board; and
to approve the issuance of any bonds or debt obligations of the Board. In the case
of the issuance of debt, an affirmative vote of two-thirds Supermajority of the votes
cast is required.
iii. When weighted voting is required, the weight of each
Participant’s vote is determined by the Participant’s proportional contribution
to the total annual Operations and Maintenance costs of the Board in the year
the vote is taken, multiplied by one hundred. In no event shall the total of the
weighted votes be in excess of, or less than, one hundred (100). However, no
prevailing vote will pass without the support of at least three Participants.
E. Governance-Officers. At its first meeting, and its first regular meeting of
each subsequent year, the Board shall elect a Chair and Vice Chair from among the
members designated by the governing bodies of the Participants. The Chair and Vice Chair
shall be elected by the Board for one year terms. The Chair shall preside at all meetings of
the Board and shall perform other duties and functions as may be determined by the Board.
The Vice Chair shall preside over and act for the Board during the absence of the Chair.
F. Purposes. The Board shall: provide the structure for administrative and
fiscal oversight of the System; set appropriate policies for the Board and the System;
maximize the use of resources available to the various Participants for the benefit of the
System; and establish and oversee any appropriate committees.
G. Powers. The Board shall have the general powers described in Section 1 of
this Agreement, including the powers to do the following:
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i. To negotiate and enter into contracts, including contracts: for the
acquisition of real or personal property and equipment; employment of Board
personnel, professional services and consultants; with wholesalers or resellers that
desire to utilize the System;
ii. To acquire, construct, manage, maintain, or operate any interest in
the System and any System Components;
iii. To apply for and hold any required licenses or permits;
iv. To sue and be sued;
v. To apply for, receive and utilize grants and loans;
vi. To accept donations;
vii. To issue bonds or debt obligations as permitted by law, by vote of a
Supermajority of the Board, using Weighted Voting, provided that such obligations
shall not constitute an obligation of any individual Participant;
viii. To promulgate, adopt, and enforce any rules and regulations, as may
be necessary and proper to implement and effectuate the terms, provisions, and
purposes of this Agreement.
H. Additional Powers and Responsibilities. In addition to the foregoing, the
Board shall have the following specific powers and responsibilities, as further described
and developed in the System Plan:
i. To approve contracts with commercial vendors regarding
development, operation, marketing, public relations, maintenance and expansion of
the System;
ii. To adopt an annual budget for operation and maintenance of, and
capital improvements to, the System;
iii. To develop policies regarding accounting, contracting and
procurement, employment, operations and maintenance, and asset replacement.
The Participants expectation is that one or more of the Participants may provide
financial accounting and or human resources services for the Board.
iv. To establish processes for setting the fees for Participants and non-
Participants to access and use the System in accordance with the duly adopted
System Plan and to administer the processes for setting fees that apply uniformly
or equitably to all Participants;
v. To acquire or lease real property as required for operations;
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vi. To discharge other duties consistent with the purposes of this
Agreement or as required by law.
I. System Plan. A System Plan has been developed by the Participants in
coordination with an outside consultant, Design Nine Broadband Planners, and titled
“C-Net/I-Net Systems and Business Plan v7.” The System Plan is fully incorporated
into this Agreement by reference. The Board will formally adopt the System Plan at
its first organizational meeting and may thereafter amend the System Plan from time
to time as it deems appropriate. If there are any conflicts between the terms of this
Agreement and the terms of the System Plan, the terms in this Agreement shall
prevail. The vote to approve or modify the System Plan shall be by Weighted Voting.
6. Acquisition of Interests in System Components. The Board will acquire interests
in the use of System Components as follows.
A. Participants will identify System Components for which they will grant to
the Board IRUs with any qualifications or conditions, each of which will have an initial
term of 10 years, with two five-year renewals which shall be automatic unless the Board
affirmatively decides not to renew, by giving ninety (90) days’ notice to the Participant
prior to termination. In connection with, and as a part of the grant of each IRU, the
Participant will grant to the Board all rights necessary or convenient for the Board to
operate the System within the geographic boundaries of the Participant. The preceding
sentence is not intended to grant to the Board prior approval of any permits required to be
obtained in connection with any System Components to be constructed by the Board,
provided however that such permits will not unreasonably be withheld by any Participant.
B. In connection with the grant by any Participant of an IRU to the Board for
the benefit of the Participants as to any System Components, the Board will assume
operating and maintenance costs and responsibilities with respect to such System
Component.
C. With the prior consent of the Board, Participants may terminate an IRU as
to any System Components owned by it with not less than two year’s prior written notice
to the Board. The Board will consent to such termination unless the removal will render
the Backbone to be less than carrier class or violate any Board contracts. The Participants
recognize that the two-year notice period is necessary and appropriate to permit the Board
to make alternative provisions for the continuance of service. The Board may waive the
two-year notice if it determines, in its sole discretion, that early termination will not
adversely impact the System.
7. Ownership of System Components.
A. Each Participant retains the ownership interests it has in System
Components, subject to the interests it grants to other Participants or the Board pursuant to
IRUs or other contractual arrangements.
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B. The Board recognizes that Participants may have partial ownership interests
in System Components, or may have granted to third parties certain interests in such assets,
which may limit the Participants’ ability to dedicate or grant IRUs in such System
Components.
C. The Participants’ intent is that the Board will not own System Components
unless in a specific situation the Board determines that it will construct and own certain
System Components.
8. Expansion of System
A. Each Participant retains the authority to undertake and finance additional
System Components to be owned by it, however each additional System Component that
will be designated for operation and maintenance by the Board shall be constructed
consistent with standards established by the Board and shall require prior review and
approval as determined by the Board, in order to ensure that additions to the System will
be undertaken in a coordinated manner. A decision to expand the System Components
owned by a Participant remains with each Participant.
B. Each Participant must evaluate the financial viability for new System
Components and System expansions. The Board will not participate in the cost of
expansions to be owned by a Participant. The costs for new Laterals and Drops will be
borne by individual Participants.
C. The Board may provide tools for Participants to expand the System by the
addition of Laterals or Drops in accordance with the System Plan. This assistance would
be in the form of technical assistance in implementation of the projects. The Dakota County
Community Development Agency may provide financing assistance to Participants but
will not participate in paying such costs.
9. Operating and Maintenance Cost Sharing. As is further described in the System
Plan, Operating and Maintenance Costs will be separated into their logical parts. Responsibility
for each cost category then will be shared by Participants based on distribution parameters
appropriate for each category as determined by the Board.
Payment by Participants of their allocated share of Operating and Maintenance Costs will be in
addition to the annual Access Fee. The Board shall use the Access Fees and Basic Membership
Fees to offset a portion of the Operating and Maintenance Costs, as provided in the System Plan.
10. Financing Initial I-Net and Initial C-Net Capital Improvements. The following cost
sharing provisions apply ONLY to the Initial Capital Projects. They do NOT apply to System
expansions as described in Section 8. As is further described in the System Plan, Initial Capital
Project costs will be shared as follows:
A. Initial I-Net Capital Improvements Costs. All municipal Participants and
the CDA will pay for their own switches and their associated optics along with the fit-up
costs relating to placement of the switches. Municipal Participants and the CDA will also
pay for their own Drops and Laterals along with all associated splicing and other incidental
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costs, except that no municipal Participant or the CDA will be required to extend more than
two thousand (2,000) feet of fiber optic cable to reach its primary access point. Each
Municipal Participant will also contribute the same amount of funds as other Municipal
Participants, with the equal share amount to be determined by the Board, to create an initial
break/fix fund balance. Dakota County will pay for all other Laterals necessary to provide
adequate access to the System for all Participants along with splicing and other costs
associated with constructing the other Laterals. Dakota County will also pay for all costs
related to the creation of the core nodes.
B. Initial C-Net Capital Improvement Costs. The CDA will pay for all costs
relating to the Initial C-Net Capital Improvements as described in the System Plan.
11. Revenue Generation. As is further described in the System Plan, charges for use
of the System will be imposed as follows.
A. I-Net Usage and Charges. Each Participant may use the System to the extent
available within its boundaries for its own I-Net purposes on an unlimited basis, in
exchange for annual payment of its Access Fee. Other than through the payment of the
Access Fee, the Board shall not charge Participants for I-Net usage of the System.
B. C-Net Revenues. As further described in the System Plan, the Board will
establish and collect charges for use of the C-Net, including different rates or charges
for protected, versus unprotected, services. An amount equal to fifty per cent (50%)
of revenue generated by C-Net usage will go the Participant in whose geographic
limits the revenue is generated. An amount equal to forty five percent (45%) of
revenue generated will be distributed pro rata to the Participants based on value of
System assets provided by the Participants. An amount equal to 3.33% will be
distributed pro rata to non-county members only based on their population. An amount
equal to 1.67% will be distributed to Dakota County.
12. Establishment of a Relocation Fund; Submission of Capital Plans.
A. As further described in the System Plan, in the event of unanticipated need
to relocate System fiber optic cable and associated structures and equipment, the CDA, at
its option, may establish a fund which can be accessed by Participants for temporary
construction financing on terms determined by the CDA. If the CDA creates a relocation
fund, the Participants accessing relocation funds will repay the CDA beginning in the
Participant’s next budget year. The intent of this fund is to provide temporary construction
financing to be repaid in the next budget year. However, in the case of hardship, the CDA
Board at its sole discretion may authorize a multi-year repayment plan. All fund
repayments will include interest at a rate to be established by the CDA Board.
B. In order to minimize the unexpected need to relocate facilities, each
Participant shall submit its Capital Improvements Plans relating to any System
Components to the Board for review and comment prior to adoption thereof.
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13. Default; Remedies. Upon the occurrence of any default hereunder, the Board and
each Participant shall have any and all remedies available to it at law or in equity.
14. Liability; Indemnification.
A. Responsibility for Own Acts and Omissions. No Participant shall be liable
for the acts or omissions of another Participant, unless it has specifically agreed in writing
to be responsible for the same. Each Participant acknowledges and agrees that it is insured
or self-insured consistent with the limits established in Minnesota State Statutes. Each
Participant agrees to promptly notify all Participants if it becomes aware of any potential
Board related claims or facts that are likely to give rise to such claims. Neither the Board
nor any Participant shall have the power to do any act or thing the effect of which is to
create a charge or lien against the property or revenues of the Board or another Participant,
except as expressly provided herein or in any of the documents authorized herein.
B. No Waiver. Notwithstanding the foregoing, the terms of this Agreement are
not to be construed as, nor operate as, waivers of a Participant’s statutory or common law
immunities or limitations on liability, including by not limited to, Minnesota Statutes
Chapter 466. Further, the Participants’ obligations set forth in this Agreement are expressly
limited by the provisions of Minnesota Statutes Chapter 466 and Minnesota Statutes
section 471.59, and any other applicable law or regulation providing limitations, defenses
or immunities to the Participants and the Board. For purposes of determining total liability
for tort damages, each Participant and the Board are considered a single governmental unit
and the total liability for all of the Participants and the Board shall not exceed the limits on
governmental liability for a single governmental unit as specified under Minnesota Statutes
Section 466.04, Subd. 1, or as waived or extended by the Board or all Participants under
Minnesota Statutes Sections 466.06 or 471.981.
C. Indemnification. The Board shall be considered a separate and distinct
government joint powers entity to which the Participants have transferred all
responsibility and control for actions taken pursuant to this Agreement. The Board
shall comply with all laws and rules that govern a public entity in the State of
Minnesota and shall be entitled to the protections of Minnesota Statutes Chapter 466.
Without limiting the application of Section 14.A, to the extent of any liability
insurance carried by the Board and available for such purpose, the Board shall defend,
indemnify and hold harmless each Participant from any and all liability arising from
or as a result of: (i) any accident, injury to or death of any person or loss or damage
to property that may be directly or indirectly caused by the acts or omissions of the
Board; (ii) any act of the Board in the observation or performance of any of its
responsibilities, or any failure by the Board to perform any such responsibilitie s;
and/or (iii) any actions or inactions of Participants taken as a result of their
membership on the Board. Nothing in this Agreement shall be construed to provide
liability coverage or indemnification to an officer, employee, or volunteer of any
Participant for any act or omission for which the officer, employee, or volunteer is
guilty of malfeasance in office, willful neglect of duty, or bad faith. The Board shall
carry insurance which provides for coverage equal to or greater than commercial general
liability insurance in the amount of at least two million ($2,000,000) dollars. If the
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Board employs any personnel, it shall also provide for worker’s compensation
benefits in the amount consistent with state statutes.
D. Uninsured Liability. If the Board incurs liability that is in excess of the
insurance obtained by the Board, or incurs liability that is outside the coverage of
such insurance, the liability shall be distributed among the Participants on the basis
of each Participant’s proportional contribution to the total Operations and
Maintenance costs of the Board in the year in which the action or inaction giving rise to
the liability is occurred.
15. Termination of Board; Disposition of Assets. This Agreement may be terminated,
and the Board dissolved, upon the vote of a Supermajority of the Board using Weighted Voting.
Prior to voting to terminate this Agreement, the Board shall adopt a plan providing for the orderly
disposition of assets and unwinding of agreements of the Board. Such plan shall provide th at
following the disposition of any assets owned by the Board and the payment of all obligations of
the Board, any funds remaining shall be distributed to the Participants who have not previously
withdrawn in proportion to the total of all contributions made by the remaining Participants in
place at the time of dissolution.
16. Amendments. This Agreement may be amended at any time and from time to time
by agreement of all Participants who are members of the Board. Notwithstanding the foregoing,
no amendment shall adversely affect the security for any bonds or debt obligations issued by the
Board and outstanding at the time of the amendment.
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IN WITNESS WHEREOF, each of the Participants has caused this agreement to be executed on
its behalf by its respective authorized officers, all as of the date first above written.
DAKOTA COUNTY, MINNESOTA
By______________________________
Its ______________________________
Approved as to form
________________________________
Assistant County Attorney Date
[Additional Participant Signature Pages to be added.]
JPA – Dakota Broadband Board v209 – 11-30-2017
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CITY OF APPLE VALLEY
Date: By: __________________________
Mary Hamann-Roland, Mayor
Attest:
Date: By: ______________________
Pamela Gackstetter, Clerk
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CITY OF BURNSVILLE
Date: By: __________________________
Elizabeth Kautz, Mayor
Attest:
Date: By: ______________________
Macheal Collins, Clerk
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CITY OF FARMINGTON
Date: By: __________________________
Todd Larson, Mayor
Attest:
Date: By: ______________________
David McKnight, City Administrator
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CITY OF HASTINGS
Date: By: __________________________
Paul Hicks, Mayor
Attest:
Date: By: ______________________
Melanie Mesko Lee, City Administrator
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CITY OF INVER GROVE HEIGHTS
Date: By: __________________________
George Tourville, Mayor
Attest:
Date: By: ______________________
Joe Lynch, City Administrator
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CITY OF LAKEVILLE
Date: By: __________________________
Douglas P. Anderson, Mayor
Attest:
Date: By: ______________________
Justin Miller, City Administrator
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CITY OF MENDOTA HEIGHTS
Date: By: __________________________
Neil Garlock, Mayor
Attest:
Date: By: ______________________
Lorri Smith, Clerk
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CITY OF ROSEMOUNT
Date: By: __________________________
Bill Droste, Mayor
Attest:
Date: By: ______________________
Clarissa Hadler, Clerk
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CITY OF SOUTH ST. PAUL
Date: By: __________________________
James Francis, Mayor
Attest:
Date: By: ______________________
Christy Wilcox, Clerk
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CITY OF WEST ST. PAUL
Date: By:___________________________
Jenny Halverson, Mayor
Attest:
Date: By: ______________________
Chantal Doriott, Clerk
DAKOTA COUNTY DEVELOPMENT AGENCY
Date: ____________________________ By: _______________________________
Attest:
Date: _____________________________ By: ________________________________
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Schedule A
Initial Dakota Broadband Participants
City of Apple Valley
City of Burnsville
City of Farmington
City of Hastings
City of Inver Grove Heights
City of Lakeville
City of Mendota Heights
City of Rosemount
City of South St. Paul
City of West St. Paul
County of Dakota
Dakota County Community Development Agency