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HomeMy WebLinkAbout03.09.20 Work Session Packet CITY OF Meeting Location: FARMI NGTON Farmington City Hall i 430 Third Street Farmington, MN 55024 CITY COUNCIL WORK SESSION MEETING AGENDA March 9, 2020 6:00 PM 1. CALL TO ORDER 2. APPROVE AGENDA 3. DISCUSSION ITEMS (a) Saint Paul Area Association of Realtors Presentation (20 Minutes) (b) Concept Plan Related to the Highay 3 Corridor Plan (30 Minutes) (c) Siting,Timing and Feasibility Study of a New Water Tower(45 Minutes) 4. CITY ADMINISTRATOR UPDATE (a) I ndefeasable Right to Use Agreement with Dakota Broadband Board (5 Minutes) 5. ADJOURN CITY OF 0430 Third St., Farmington, MN 55024 FARM I N GTO N © 651-280-6800 ® FarmingtonMN.gov TO: Mayor, Councilmembers and City Administrator FROM: David McKnight, City Administrator SUBJECT: Saint Paul Area Association of Realtors Presentation (20 Minutes) DATE: March 9, 2020 INTRODUCTION The Saint Paul Area Association of Realtors has asked to make a presentation to the city council. This will be a general presentation about the state of home ownership, property sales, etc. in Farmington. DISCUSSION NA BUDGET IMPACT NA ACTION REQUESTED Hear the presentation that is provided and ask any questions you may have on this issue. ATTACHMENTS: Type Description D Cover Memo January 2020 SPAAR Report Local Market Update -- January 2020 A RESEARCH TOOL PROVIDED BY THE SAINT PAUL AREA ASSOCIATION OE REAL-1011S(± spaar + 73.9% - 15.2% + 7.9% Change in Change in Change in FarmingtonNew Listings Closed Sales Median Sales Price January Year to Date 2019 2020 +/— 2019 2020 +/— New Listings 23 40 +73.9% 23 40 +73.9% Closed Sales 33 28 -15.2% 33 28 -15.2% Median Sales Price` $244,725 $264,090 +7.9% $244,725 $264,090 +7.9% Average Sales Price` $252,874 $278,128 +10.0% ! $252,874 $278,128 +10.0% Price Per Square Foot* $130 $149 +14.3% $130 $149 +14.3% Percent of Original List Price Received` 97.2% 98.7% +1.5% 97.2% 98.7% +1.5% Days on Market Until SaleI 50 61 +22.0% 50 61 +22.0% Inventory of Homes for Sale 44 44 0.0% -- -- -- Months Supply of Inventory 1.0 0.9 -10.0% •Does not account for seller concessions.I Activity for one month can sometimes look extreme due to small sample size. January ■2019 12020 Year to Date •2019 12020 40 40 33 _ ...., 28 33 23 28 23 I I I +73.9% -15.2% r +73.9% -15.2% '-- New Listings Closed Sales New Listings Closed Sales Change in Median Sales Price from Prior Year(6-Month Average)** 16-County Twin Cities Region • +40% Farmington ...i. +30% +209'° ° / \ A, +10% Vex ?U fj e 1r' .A �.�.,. ., 1, -10% A -20% -30% 1-2008 1-2009 1-2010 1-2011 1-2012 1-2013 1-2014 1-2015 1-2016 1-2017 1-2018 1-2019 1-2020 "Each dot represents the change in median sales price from the prior year using a 6-month weighted average. This means that each of the 6 months used in a dot are proportioned according to their share of sales during that period. Current as of February 10,2020.All data from NodhslarMLS.I Powered by Sbavingl"ime. CITY OF 0430 Third St., Farmington, MN 55024 FARM I N GTO N © 651-280-6800 �MIIW®vl`,� O FarmingtonMN.gov TO: Mayor, Councilmembers and City Administrator FROM: Katy Gehler, Public Works Director&Tony Wippler, Planning Manger SUBJECT: Concept Plan Related to the Highay 3 Corridor Plan (30 Minutes) DATE: March 9, 2020 INTRODUCTION Staff has been working with a potential applicant on a propsed redevelopment project along the Highway 3 corridor. The concept incorporates improvements to promote greater safety for access in the area and aligns with the Highway 3 Corridor Plan completed in 2019 and the TH3 Access Management Study completed in 2004. DISCUSSION Staff will review the concept plan and seek feedback from the city council on the potential improvements. This feedback will shape further discussions with the developer on a potential application. BUDGET IMPACT Staff will review costs related to the potential improvements that could be incorporated in the CI P process later this year. ACTION REQUESTED Listen to the presentation and provide feedback on the concept plan. CITY OF 0430 Third St., Farmington, MN 55024 FARMINGTON © 651-280-6800 ®It ® FarmingtonMN.gov TO: Mayor, Councilmembers and City Administrator FROM: Katy Gehler, Public Works Director/City Engineer SUBJECT: Siting,Timing and Feasibility Study of a New Water Tower(45 Minutes) DATE: March 9, 2020 INTRODUCTION Please see the attached work session memo. DISCUSSION N/A BUDGET IMPACT N/A ACTION REQUESTED Listen to the presentation and provide feedback on the next steps of the process. ATTACHMENTS: Type Description D Cover Memo Work Session Memo D Backup Material Daisy Knoll Pictures CITY OF 0430 Third St., Farmington, MN 55024 FARMINCTON © 651-280-6800 FarmingtonMN.gov TO: Mayor, Councilmembers and City Administrator FROM: Katy Gehler, Public Works Director/City Engineer SUBJECT: Discussion Related to the Siting and Feasibility Study of a New Water Tower DATE: March 9,2020 INTRODUCTION In line with the 2018 Water Plan submitted to the DNR, a new water tower was programmed for construction in 2020/2021. A Siting and Feasibility study was completed to consider location,options and costs of the new tower. In addition to the siting study, the Council expressed interest in revisiting the needs related to storage that was outlined in the Water Plan completed in 2018. As part of the Comprehensive Plan development, a potential water sales partnership with Empire Township was discussed such that the City would provide water to areas that the Township currently can not. Empire is also completing a similar parallel study to determine the cost efficiencies of their options to service land at higher elevations. Staff will review the needs and outcomes of the study at the work session. Background information is provided in the Discussion section below. DISCUSSION A. Underlying Rules and Guidelines The City of Farmington is considered a Public Water Supplier and as such must follow the rules and regulations set forth by the state. The Department of Health and Department of Natural Resources oversee Public Water Suppliers to ensure they are meeting drinking water standards and are planning and building their systems to ensure an adequate public water supply. This includes source, storage and distribution. All public water suppliers in Minnesota that operate a public water distribution system, serve more than 1,000 people and/or all cities in the seven-county metropolitan area, must have a water supply plan approved by the Department of Natural Resources(DNR). Municipal water supplies must submit a water plan to the DNR every 10-years addressing population estimates, corresponding water demands and capital improvements to support those water demands. The 10-State Standards are used in the industry as the guidelines to determine supply, storage, and distribution needs which are then reported to the state. The 10-State Standards were created in the 1950s by a board representing ten upper Midwest states. The board,that primarily consists of representatives from state regulatory agencies, meets on a regular basis, reviews new technologies and manages updates to the standards.The standards are intended to serve as a guide in the design and preparation of plans and specifications for public water supply systems based on proven technology, and to suggest limiting values for items upon which an evaluation of such plans and specifications may be made by the reviewing authority, and to establish, as far as practicable, uniformity of practice. B. Storage Recommendations The principal purpose of storage is to equalize pumping rates over the variable demands throughout the day, provide balance between seasonal demands and to provide water for emergency fire service. To determine the recommended minimum storage volume three components are considered; average demands and pressure equalization,fire demands, and emergency reserve (i.e. equipment failure). The recommended storage volume is the equalization volume plus the larger of the volume for fire or emergency reserve. Storage for equalization is recommended to be 25 percent of the maximum daily demand. Storage for fire protection is based on the Insurance Services Office (ISO) Public Protection Classification grading for insurance purposes.The amount used for this category depends on zoning with a standard for residential areas being 3,500 gpm for 4 hours.Storage for emergency use is recommended to be equal to 60 percent of average daily demand. Current and future water demands are considered. Historical Water Demands Water use is associated with population more than any other factor. Once a per capita demand is established,it is possible to predict future water demands.The per capita demand is typically determined based on historical data over the last 10-years omitting extremely high or low demands as they can skew the data and make future projections unrealistic. The table below shows the historical population and water demand for the City of Farmington from 2007 to 2019. The 5-year average was based on the data from 2007-2016 as used in the 2018 Water Plan. From 2007 to 2016,the City of Farmington saw a fairly steady growth with a total 22.8 percent increase in population.The per capita demand averages 88 gallons per capita per day(gpcd)when looking at the 5-year average. While there are larger fluctuations in maximum day demands from year to year due more to weather,the average day demands remain relatively consistent. The 2018 Water Plan (noted that the 5-year average day demand is 1.93 million gallons per day(MGD)while the 5-year Maximum day demand is 5.32 MGD. Historical Population and Water Demands Average Average Daily Maximum Peaking Estimated % Daily Demand per Daily Factor(Max. Service Population Demand Capita Demand Day/Avg. Year Population Growth (MGD) (gpcpd) (MGD) Day) 2007 18,589 2.21 119 6.55 3 2008 18,735 0.79% 2.16 115 5.79 2.7 2009 18,959 1.20% 2.12 112 4.7 2.2 2010 21,086 11.22% 1.86 88 4 2.2 2011 21,369 1.34% 1.94 91 5.11 2.6 2012 21,792 1.98% 2.2 101 6.57 3 2013 22,051 1.19% 1.97 89 6.04 3.1 2014 22,386 1.52% 1.86 83 5.21 2.8 2015 22,451 0.29% 1.75 78 4.44 2.5 2016 22,821 1.65% 1.86 82 4.37 2.3 2017 23,191 1.62% 1.91 83 4.85 2.5 2018 23,560 1.59% 1.73 74 4.44 2.6 2019 23,930 1.57% 1.76 74 4.10 2.3 Daily Demand Trends 7 6 3 1 0 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 --r;, Average Daily Demand(MGD) Maximum Daily Demand(MGD) -;r Peaking Factor(Max.Day/Avg.Day) Population and Demand 150 - e. 30,000 100 - --_ 20,000 50 10,000 0 0 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 Average Daily Demand per Capita(gpcpd) -d4-Estimated Service Population Projected Population and Water Demands Population projections are based on the those provied with the City's Comprehensive Plan through 2040. Historic water use (average and maximum daily demands) and population projections can be utilized to make future water projections. Public water supplies should also consider changing trends in demands associated with the commercial, industrial, and institutional (C/I/I) sectors. Historically, the City of Farmington does not have a large industrial or commercial water demand and does not anticipate a significant change. Future water projections are shown in the table below. Projected Water Demands Projected Average Daily Maximum Daily Year Population Demand (MGD)' Demand (MGD)2 2020 24,300 2.14 5.77 2025 26,300 2.31 6.25 2030 28,300 2.49 6.72 2035 30,400 2.68 7.22 2040 32,500 2.86 7.72 'Assumes an average daily usage of 88 gpcpd, per the 2017 Water Supply Plan and Table 2.1 2Assumes a peaking factor of 2.7,per Table 2.1 Recommended Storage Volume Based on the standards for determining storage volumes, the table below summarizes the existing and future systems needs. Storage Requirements Existing System Volume Future System Volume Category Recommendations(MG) Recommendations (MG) Equalization (25%of maximum daily demand) 1.33 1.93 Fire Protection (3,500 gpm for 4 hours) 0.84 0.84 Other Emergencies (60%of average daily demand) 1.16 1.72 Recommended Storage Volume 2.49 3.65 The City of Farmington has two storage tanks; a 1.5 MG elevated storage tank at the municipal campus and a 0.67 MG standpipe in Daisy Knoll Park.While the total storage capacity of these two tanks combined is 2.27 MG,the effective storage capacity is 1.79 MG. This is due to the elevation ranges that the water system operates, therefore only the upper portion of the standpipe can be considered for meeting the storage requirement. In addition to the storage needs, the tank in Daisy Knoll Park has served its useful life, has deteriorated significantly and been identified for removal.There are several pictures attached of the current condition. Below is a summary of Farmington's existing storage tanks. Daisy Knoll Elevated Total Storage Standpipe Tower Capacity(MG) 0.67 1.50 2.17 Effective Summer Capacity(MG) 0.29 1.50 1.79 Effective Winter Capacity(MG) 0.00 1.50 1.50 Year Constructed 1973 1998 - High Water Level(HWL) 1,117.33 1,117.33 - Support Type Ground Elevated - Based on existing and future water storage needs, it was recommended that a 2.5 million gallon tank be considered. C. Water Storage Sites Potential Storage Sites Possible sites for a new storage tank were evaluated based on elevation, proximity of trunk watermain, current water demand centers and planned areas of development. Major areas examined included the site of the existing Daisy Knoll standpipe and within the NE portion of Farmington along the Farmington and Empire Township border. Of these areas,the standpipe site and an area within the NE portion of Farmington along TH3 were deemed the most viable,due to elevation considerations. Each of these sites was also considered in regards to the potential connection and partnership with Empire Township. Staff will review the results of the water distribution modeling that was completed as well as review other considerations that are part of site selection. Storage Alternatives There are multiple types of storage tanks,the main types of tanks are elevated storage towers and ground storage tanks. Booster pumps may be required for ground storage tanks depending on the local elevation of the ground storage tank in comparison to the elevation of the area that it serves. Farmington currently has a standpipe which is a type of ground storage tank. There are multiple types of elevated storage tanks including multi-legged ellipsoidal,water spheroid, hydropillar, and composite.Water spheroid, hydropillar, and composite towers are still commonly used, but multi-legged towers have largely been avoided in recent years. Water spheroid towers are constructed of all steel, have a single pillar which supports the storage structure, and contains the access ladder and water pipe.The storage portion of the tower is roughly spherical in shape and does not provide a constant volume of water per foot due to its shape.These towers are typically more expensive than other types because of the requirement of bending the steel on two axes to achieve the spheroid shape.The tower material needs to be specially coated on the interior and exterior and will need regular maintenance and recoating.This maintenance cost can be higher than composite tanks. Hydropillar towers are also an all-steel construction with a single pillar support.The difference between hydropillar and spheroid-shaped towers is in the shape of the storage structure.A hydropillar-shaped storage structure has the body of the storage portion shaped like a cylinder with a conical-shaped top and bottom.This shape allows for less multi-axis bending of the steel but can use a little more steel than the spheroid-shaped tower,which raises the cost slightly. Other than the cost differences,the advantages and disadvantages are similar to those of a spheroid-shaped tower. Composite towers have a steel storage structure atop a concrete pillar.The single pillar construction is still present, but the pillar is built using a slip-form concrete pouring method and the steel storage structure placed on top. Because of the rising costs of steel,this type of tower is the most economical option.The concrete portion of the structure does not need to be coated and therefore, maintenance costs can be reduced.The main disadvantage of this type of tower over the others is that the concrete pillar has a much wider base and diameter; however,with this wider base also comes flexibility to house more equipment as desired and an option for a second floor if needed. D. Tower Costs Costs depend on the size, height, and type of elevated tank chosen. All of the costs presented are based on a 2020 bid and should be adjusted should the project be delayed. The cost of the 2.5 MG elevated storage tank plus site work and utilities installations range from$3.7- 4.9 million for composite and hydropillar type tanks,while spheroids were not available in the 2.5 MG size.The table below shows the estimated construction costs for the three types of elevated storage tanks with 2.5 MG capacity. The cost comparison of elevated storage tanks shows that composite towers are the most cost effective. Elevated Storage Tank Cost Estimate Item Hydropillar Composite Spheroid(1) Site Work and Utilities $250,000 $250,000 N/A Tower1�1 $4,150,000 $3,900,000 N/A Subtotal $4,400,000 $4,150,000 N/A Opinion of Probable Cost $3.9-$4.9 Million $3.7-$4.6 Million N/A (1)Spheroids are not available in 2.5 MG (2)Tower costs are for overflow elevation of 90' The cost for a 2.5 MG ground storage tank,site work, booster pumps and building range from $2.6-3.3 million. Costs include a booster station building and booster pumps to provide pressure to the water exiting the tank with equivalent pressure to the HWL of the system. Ground Storage Tank Cost Estimate Item 2.5 MG Tank Tank Site Work and Utilities $250,000 Concrete $1,410,000 Booster Station Building, Equipment,and Site Work $1,300,000 Subtotal $2,960,000 Opinion of Probable Cost $2.6-$3.3 Million While ground storage tanks have the lowest up front capital cost,they have more operation and maintenance costs due to the need for a booster station to pump the water at pressure into the distribution system. They are also susceptible to equipment failures,where an elevated tank"floats" on the system. Opinion of Probable Cost The table below provides a summary of the estimated costs for the four alternatives.The first two columns note alternatives for the City of Farmington at the two tower locations.The last two columns note alternatives as a collaboration with Empire Township.An elevated composite tank was recommended due to the lower O&M costs associated with the composite compared to the booster station pumps associated with the ground storage tank. Opinion of Probable Cost Alt Tank Alt Tank Alt Tank Alt Tank Location No.1 Location No.2 Location No.1 Location No.2 Item Farmington Farmington w/Empire w/Empire Only Only Township Township Mobilization,Bonds,and Insurance $220,000 $245,000 $240,000 $260,000 Tank(Site Work, Utilities,and Tank Construction)(1) $4,150,000 $4,150,000 $4,150,000 $4,150,000 20"Watermain for Storage Tank Location No.2 $400,000 $400,000 Demolition of Existing Tower(s)(2) $15,000 $15,000 $30,000 $30,000 Watermain to Connect Empire Township(3) $310,000 $310,000 Subtotal $4,385,000 $4,810,000 $4,730,000 $5,150,000 Contingencies(15%) $658,000 $722,000 $710,000 $773,000 Subtotal Construction $5,043,000 $5,532,000 $5,440,000 $5,923,000 Engineering,Admin.,&Legal(15%) $756,000 $830,000 $816,000 $888,000 Total $5,799,000 $6,362,000 $6,256,000 $6,811,000 Opinion of Probable Cost $5.2-$6.4 $5.7-$7.0 $5.6-$6.9 $6.1-$7.5 Million Million Million Million (1)Assumes an elevated composite storage tank (2)All scenarios include the demolition of the Daisy Knoll Standpipe,only the scenarios with connecting the Empire Township water system include the demolition of the Empire water tower (3)Omits cost for connection along Vermillion River Trail It should be noted that the costs above were provided for the project as a whole. For those elements that have a partial or direct benefit to the township,there would be cost contributions. Empire Township will be reviewing a similar report at their meeting on March 10. The council is asked to provide feedback on the information presented at the work session for the upcoming EFPAC meeting on this topic. * i t fi •Y *�i. a N 1 1 , .. '\ , j • �tF ' .',1:' ''', ' # --k.„-„;": ytr.. ' w � a � ' r y- — ,er r ,, o d e fx P' ` r , a ''''.11.4„„.,„ r" f to c .. F der I ti 4,(T ;ma w , .11 �l 1 s \ 1 i , 11 . r il 11, ir ,;li b 44' -'fid dyi may. ' g '-,,V.,''',4:..";::--:.''''''''t.:gr'..4 414-,e- ' . -,...-i,'-',',V :' -'''.-4.'b,--,---.---,,,,,-.,' - ' . • �ff fi " lg CITY OF 0430 Third St., Farmington, MN 55024 FARM I N GTO N © 651-280-6800 OFarmingtonMN.gov TO: Mayor, Councilmembers and City Administrator FROM: David McKnight, City Administartor SUBJECT: Indefeasable Right to Use Agreement with Dakota Broadband Board (5 Minutes) DATE: March 9, 2020 INTRODUCTION The Dakota Broadband Board (DBB) and Executive Committee have been working on the I ndefeasable Right to Use Agreement that each member entity will be asked to approve. An update on this issue will be provided at the work session. DISCUSSION The DBB has been working with member entities to get an I ndefeasable Right to Use Agreement in front of each member agency for consideration and approval. This agreement grants the D BB the right to use, manage and maintain the city's fibers and fiber facilities with certain fiber optic cable segments. This agreement was recently approved by the DBB Board of Directors. There were two no votes on the agreement from representatives from Dakota County and the City of Lakeville. The general reasons that were shared on the reasons for the no votes included concerns about who controls eventual decisions on moving into the C-Net portion of work and a general concern about getting into the C-Net. Councilmember Hoyt is your representative to this board and can share any thoughts he has on the issue. This agreement is a technical document and not a policy document. When the City of Farmington entered into the joint powers agreement with the D BB, we fully committed to the success of the D BB both in terms of I-Net now and C-Net eventually. Providing access, management and control of city fiber and fiber facilities is not a concern of city staff. This issue was discussed at the monthly city administrators meeting in February. I wanted to see if the city council had any concerns about considering this agreement at an upcoming city council meeting. The work session is your opportunity to ask any questions or express any concerns you may have. At the meeting, it was decided that the Dakota County Board of Commissioners will consider this agreement before any city council's are asked to do the same. BUDGET IMPACT NA ACTION REQUESTED Ask any questions you have on the draft I ndefeasable Right to Use Agreement between the Dakota Broadband Board and the City of Farmington. ATTACHMENTS: Type Description D Cover Memo Draft Agreement DBB Contract# FIBER OPTIC INDEFEASIBLE RIGHT TO USE AGREEMENT BY AND BETWEEN CITY OF AS GRANTOR AND DAKOTA BROADBAND BOARD AS GRANTEE 1 { I FIBER OPTIC INDEFEASIBLE RIGHT TO USE AGREEMENT This Agreement for the indefeasible right to use(or"IRU")together with the attached exhibit'(collectively the"Agreement"or the"IRU Agreement")is made by and between the City of , a Minnesota municipal corporation ("IRU Grantor"or"the City"), and Dakota Broadband Board, a Minnesota independent joint powers organization, acting by and through its Board of Directors("IRU Grantee",or"the DBB"). The IRU Grantor and IRU Grantee may be referred to herein individually as a"Party"or collectively as the"Parties." BACKGROUND A. The City has installed and maintained,or plans to install and maintain,certain Fibers and Fiber Facilities,and B. The City is a participant in and a member of the Dakota Broadband Board and to further the purpose and goals of the DBB,the City agrees to grant to the DBB the right to use, manage and maintain Fibers and Fiber Facilities within certain Fiber Optic Cable segments on the terms and conditions set forth below. C. The DBB desires to use,manage and maintain optic Fibers and Fiber Facilities from the City as described in this Agreement. DEFINITIONS The following terms are used in this IRU Agreement: A. "County Right-of-Way"means the real property,including all fee simple,easements, access rights, rights of use and other interests, owned and/or operated by Dakota County,devoted to County road or highway purposes. B. "City Right-of-Way" means the real property, including all fee simple,easements, access rights, rights of use and other interests owned and/or operated by the City, devoted to City road or highway purposes. C. 'Dakota Broadband Network"means a high-performance network connecting local government facilities in Dakota County with the physical assets(conduit,fiber optic cable,handholes,cabinets,network equipment)owned by DBB members but maintained and managed by the DBB Commented[BP1]:Definition of the network simplified by removing i/C net references and defining the network D. "Effective Date"is the date upon which all Parties have executed this Agreement. which is managed continued by the DBB as to Dakota Broadband p � Network-with reference to Dakota Broadband Network throughout the document E. "Fiber"means a glass strand or strands which is/are used to transmit a communication signal along the glass strand in the form of pulses of light. F. "Fiber Facilities"means a handhole,conduit,splice enclosures and related equipment, but excluding any electronic or optronic equipment at termination points located in City facilities. ] G. "Fiber Optic Cable"or"Cable"means a collection of fibers with a protective outer covering. H. "IRU Assets" means the City's IRU conduit, IRU Cable, IRU Fibers and Fiber Facilities that is subject to this Agreement as more specifically described in Exhibit A. I. "IRU Cable"means a Cable containing one or more Fibers,constructed and owned by the City in which the DBB has an IRU pursuant to the terms of this Agreement. J. "IRU Fibers"means the specific City owned Fiber described in Exhibit A,an IRU for which is granted to the DBB in the IRU Cable pursuant to the terms of this Agreement. K. "Indefeasible Right of Use"or"IRU"means an indefeasible right to use,maintain and manage the IRU Fibers and Fiber Facilities,provided,however,that granting of such IRU does not convey legal title to the IRU Fibers or Fiber Facilities. L. "Optical Splice Point"means a point where the City's Cable is connected to another entity's Cable within a splice enclosure. M."Relocation"means any physical movement of fiber optic cable or conduit required due to reconstruction, modification, change in grade, expansion or relocation of a County road or highway,or a city street or other public improvement. In consideration of their mutual promises,the Parties expressly agree as follows: ARTICLE I LICENSES Section 1.1 The DBB desires to obtain an IRU in the City's IRU Assets further described in Exhibit A to this Agreement,which is incorporated into this IRU by reference. In consideration of the promises by the DBB in this Agreement,the City grants an IRU to the DBB in the IRU Assets identified in Exhibit A hereto,subject to any interests the City has previously granted to other cities or Dakota County,pursuant to IRUs or other contractual arrangements. The DBB shall be entitled to use the IRU Assets for any lawful purposes subject to(i)agreeing to be bound by all laws,regulations and any requirements of the City regarding access to City rights of way,and(ii) otherwise complying with the terms and conditions of this IRU. Section 1.2 Subject to the terms and conditions of this IRU Agreement,City hereby grants to the DBB a license to access and use the IRU Assets during the term of this Agreement and any extension of this Agreement. The Parties acknowledge and agree that they may add additional IRU Assets owned by the City to become subject to this Agreement, and will agree upon an amended Exhibit A that reflects the changes to the City IRU Assets to be subject to DBB use and management,which shall supersede all previous versions of Exhibit A. Such amended Exhibit A 2 1 need not be formally approved by the DBB Board or the City Council of the City in order for the amendment to become effective. Section 1.3 The IRU Assets are provided to the DBB"as is." If any new Fiber Facilities or any fiber splices are needed to interconnect IRU Fibers to the Dakota Broadband Network,the DBB shall be responsible for coordinating this work with the City and shall pay any and all costs and fees associated with connecting the IRU Fibers to other fibers not owned by the City for Dakota Broadband Network purposes. The DBB and the city or cities that own the Dakota Broadband Network assets shall confer and agree upon which Party is responsible for the costs and fees associated with connecting the IRU Fibers to other fibers for Dakota Broadband Network purposes of parties outside of the DBB or shall agree upon an allocation of the costs and fees between the Parties. If the Parties cannot agree upon the responsibility for costs and fees related to Dakota Broadband Network connections,the issue shall be presented to the DBB Board and the DBB Board decision on cost responsibility shall be final. Section 1.4 Notwithstanding anything contained to the contrary in this Agreement,the Parties acknowledge and agree nothing contained in this Agreement shall operate to limit,interfere with, or otherwise adversely affect each Party's right to manage, control, construct, relocate, maintain,replace and expand the portion of its fiber optic network equipment and infrastructure that is not subject to this Agreement,and is not included in the description of Fiber and Fiber Facilities in Exhibit A. ARTICLE II EFFECTIVE DATE AND TERM The DBB may use the granted IRU Assets commencing on the Effective Date. This Agreement has an initial term of 10 years,with two separate five-year renewals which shall be effective unless the DBB Board affirmatively decides not to renew and provides ninety(90)days' notice to the City prior to termination or unless terminated by agreement of the Parties in writing or by one of the events in Article XI,Section 11.2 of this Agreement,whichever occurs first. ARTICLE III LICENSE FEES The City will not impose,and the DBB shall not pay a fee for the use of the IRU Assets during the term of this Agreement on any renewal of this Agreement. The City will contribute to the cost of using,managing and maintaining the City's Fiber Assets through its DBB participant fees and other financial contributions as approved by the DBB Board. 3 • ARTICLE IV MAINTENANCE AND REPAIR The DBB shall be responsible for the maintaining,repairing and when necessary replacing the City's IRU Assets assigned to the DBB as described in Exhibit A within the Dakota Broadband Network managed by the DBB. Responsibility for the cost of maintenance and repair of new City Fiber Facilities used within the Dakota Broadband Network will be as follows: If the City has amended Exhibit A of its IRU Agreement with the DBB to include the new Dakota Broadband Network/city fiber among the IRU Assets to be managed and maintained by the DBB,the cost of maintenance and repair of the new Dakota Broadband Network fiber is the responsibility of the DBB. If the City has not amended Exhibit A of its IRU Agreement with the DBB to include the new city fiber among the IRU Assets to be managed and maintained by the DBB,the cost of maintenance and repair of the new Dakota Broadband Network/City fiber is the responsibility of the city until the new Dakota Broadband Network fiber is added to Exhibit A. The response time to repair breaks or other failures causing an interruption in communications through City IRU Assets will be the response time standards set forth in the break/fix contract between the DBB,or its network administrator,and the selected break/fix repair I contractor. ARTICLE V REPRESENTATIONS AND WARRANTIES Section 5.1 The DBB's use of the IRU Assets shall comply with all applicable governmental codes,ordinances,laws,rules,regulations and/or restrictions. Section 5.2 The City represents and warrants that it has the right to grant this IRU in its IRU Assets. ARTICLE VI LIABILITY,INDEMNIFICATION Section 6.1 Neither the City nor the DBB shall be liable to the other for any indirect, special,punitive or consequential damages arising under this Agreement or from any breach or partial breach of the provisions of this Agreement or arising out of any act or omission of either Party hereto,its directors,officers,employees,servants,contractors and/or agents. Section 6.2 The DBB assumes,releases and agrees to indemnify,defend,protect and save City(including its officers,agents,representatives and employees)harmless from and against any claim,damage,loss,liability,injury,cost and expense(including reasonable attorney's fees and expenses) in connection with any loss or damage to any person or property arising out of or resulting in any way from the acts or omissions to act,negligence or willful misconduct of the 4 1 DBB,its directors,officers,employees,servants,contractors and/or agents in connection with the exercise of its rights and obligations under the terms of this IRU. The City assumes,releases and agrees to indemnify,defend,protect and save DBB(including its officers,agents,representatives and employees)harmless from and against any claim, damage, loss, liability, injury, cost and expense (including reasonable attorney's fees and expenses) in connection with any loss or damage to any person or property arising out of or resulting in any way from the acts or omissions to act,negligence or willful misconduct of the City,its directors, officers,employees,servants,contractors and/or agents in connection with the exercise of its rights and obligations under the terms of this I2U. Notwithstanding the foregoing, such indemnity is limited to the amount of available insurance coverage and nothing herein shall be considered as a waiver of its statutory tort limits under Minn. Stat.Chap.466. Section 6.3 Nothing contained herein shall operate as a limitation on the right of either Party hereto to bring an action for damages,including consequential damages,against any third party based on any acts or omissions of such third party as such acts or omissions may affect the construction,operation or use of the Fiber,Cable,or IRU Fibers;provided,however,that(i)the Parties to this Agreement shall not have any claim against the other Party for indirect,incidental, special, punitive or consequential damages (including, but not limited to, any claim from any customer for loss of services),and(ii)each Party hereto shall assign such rights or claims,execute such documents and do whatever else may be reasonably necessary to enable the injured party to pursue any such action against such third party. ARTICLE VII FORCE MAJEURE The obligations of the parties hereto are subject to force majeure and neither party shall be in default under this Agreement if any failure or delay in performance is caused by strike or other labor dispute;accidents;acts of God;fire;flood;earthquake;lightning;unusually severe weather; material or facility shortages or unavailability not resulting from such party's failure to timely place orders therefor;lack of transportation;acts of any governmental authority;condemnation or the exercise of rights of eminent domain;war or civil disorder; or any other cause beyond the reasonable control of either party hereto.The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. ARTICLE VIII RELOCATION OF CABLE Section 8.1 The City shall have the right to relocate the IRU Assets at any time upon written notice to the DBB(a"Relocation"). The City and/or Dakota County shall be responsible for all costs associated with a Relocation of the 1RU Assets in County Right-of-Way that is required by alteration of the County Right-of-Way or by the request of a third party having authority to require 5 } the move. The City may seek and receive funding or reimbursement from a third party for a Relocation within County Right-of-Way. The City shall be responsible for all costs associated with a Relocation of its IRU Assets in City Right-of-Way that is required by alteration of the City Right-of-Way or by the request of a third party having authority to require the move. The City may seek and receive funding or reimbursement from a third party for a Relocation by the City. Section 8.2 Either Party shall give the other Party at least sixty(60)days prior notice of any Relocation,if possible. The City has the right to determine the extent of,the timing of,and the methods to use for such Relocation;provided that any such relocated IRU Assets shall be constructed and tested in accordance with industry standard specifications and requirements. In addition,the City shall use reasonable efforts to ensure Relocation does not result in an adverse change to the operations, performance or connection points with the DBB Fiber Optic Cable network Section 8.3 The DBB has the right to review the Relocation plans at least fourteen(14) days prior to commencement of any Relocation. Either party may submit comments on the Relocation plans,which comments shall not delay commencement of the Relocation. Both parties shall have the right to have a representative present at the time a Relocation occurs. ARTICLE IX r CONFIDENTIALITY The Parties agree and recognize that this Agreement as well as information and documents the Parties receive from one another during the term of this Agreement may be considered public data under the Minnesota Government Data Practices Act,Minn.Stat.Ch 13,as amended. The Parties agree to comply with the Minnesota Government Data Practices Act as it applies to all data provided by the Parties under this Agreement, and as it applies to all data created, collected, received,stored,used,maintained,or disseminated by any Party under this Agreement.The civil remedies of Minn.Stat.§ 13.08 apply to the release of the data referred to in this clause by any Party. If either Party receives a request to release data arising out of or related to the Fiber Facilities or the use,operation or maintenance thereof,the Party receiving the request must immediately notify the other Party of the request. The Parties will promptly consult and discuss the best way to respond to the request. { ARTICLE X ABANDONMENT;TERMINATION;EFFECT OF TERiYIINATION Section 10.1 Should the City decide to abandon all or part of the IRU Fibers during the term of this Agreement,it may do so by providing sixty(60)days'notice informing the DBB in writing of its intent to abandon. Such abandonment shall be at no cost to either Party except as set forth in this Article. If the City provides notice of intent to abandon,the DBB may notify the City prior to the expiration of the notice period of its intent to take ownership of the IRU Fibers. If the 6 DBB provides timely notice of such intent,the Parties will execute any agreements or documents transferring legal title of the IRU Fibers to the DBB,at no cost to either Party. Section 10.2 This Agreement shall terminate upon the first to occur of the following: (a) Expiration of the term of this Agreement; (b)Upon written notice from either Party to the other if a default occurs that is not cured within the time allowed hereunder,or (a) Upon a termination as provided in Section 10.4. Section 10.3 If this Agreement terminates under Article X,Section I0.2(a),neither Party shall have any liability to the other Party for the use of the IRU Fibers;If this Agreement terminates under Article X, Section 10.2(b), the non-defaulting party shall not have any liability to the defaulting party,and the defaulting party shall be liable for such damages to the non-defaulting party as the non-defaulting party may establish in a court of law, except as limited by this Agreement. Upon termination of this Agreement for any reason,the Parties agree to promptly execute any documents reasonably required to effect such termination. Section 10.4 f Thel City may terminate this Agreement as to any IRU Assets owned by it commented tBP2l:Removed-with the prior consent of with not less than two years prior written notice to the DBB.The DBB Board will consent to such the DBB Board," termination unless the removal will render the Optical Fiber Dakota Broadband Network Backbone to be less than carrier class or violate any DBB contracts.The Parties recognize the two- year notice period is necessary and appropriate to permit the DBB to make alternative provisions for the continuance of service.The DBB Board may waive the two-year notice if it determines,in its sole discretion,that early termination will not adversely impact the Network. Section 10.5 Upon termination of this Agreement for any reason,the DBB shall cease to have any rights to the IRU Assets or other rights under this Agreement or any obligations under this Agreement except for obligations under this Article and any other obligations that arose prior to such termination. Section 10.6 If the City ceases to be a member of the DBB prior to the expiration or termination of this Agreement,this IRU Agreement will continue to be in effect until expiration. ARTICLE XI DEFAULT Section 11.1 Neither Party shall be in default under this Agreement unless and until the other Party shall have given the defaulting party written notice of such default and the defaulting party shall have failed to cure the default within thirty(30)days after written receipt of such notice; provided,however, that where a default cannot be reasonably cured within the thirty(30)day period, if the defaulting party shall promptly proceed to cure the default with due diligence,the time for curing the default shall be extended for a period of up to ninety(90)days from the date of receipt of the default notice or until the default is cured,whichever is shorter. 7 Section 11.2 Upon the failure by the defaulting party to timely cure any default after notice thereof from the non-defaulting party,the non-defaulting party may take any action it determines, in its discretion,to be necessary to correct the default,and/or pursue any legal remedies it may have under applicable law or principles of equity relating to the breach. ARTICLE XII NOTICES Section 12.1 Unless otherwise provided herein,all notices and communications concerning this Agreement shall be in writing and addressed as follows: If to the City: City of Attn:IT Department ,MN55_ With a copy to: City Attorney ,MN55_ If to DBB: Dakota Broadband Board IAttn:Executive Director Farmington,MN 55_ With a copy to: Dakota Broadband Board Attorney ,MN 55 Section 12.2 Unless otherwise provided herein,notices shall be sent by certified U.S.Mail, return receipt requested, or by commercial overnight delivery service which provides acknowledgment of delivery,and shall be deemed delivered: if sent by U.S.Mail,five(5)days after deposit;if sent by commercial overnight delivery service,upon verification of receipt. ARTICLE XIII LIivIITATION ON PROPERTY INTEREST This Agreement does not grant the DBB any property interest or estate in or lien upon the City's property,the City's Optical Fiber Network or any components thereof or any Intellectual Property,except for use of the IRU Assets during the term of this Agreement. All liens,claims and charges of the DBB shall not attach to any interest of the City or in any property owned by the City. 8 8 This Agreement does not grant the City any property interest or estate in or lien upon the DBB's property,its Optical Fiber Dakota Broadband Network or any components thereof or any Intellectual Property. All liens,claims and charges of the City shall not attach to any interest of the DBB or in any property owned by the DBB. ARTICLE XIV GOVERNING LAW AND VENUE This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota without regard to its conflict of laws provision. The Parties agree that any action arising out of this Agreement or with respect to the enforcement of this Agreement shall be venued in the Dakota County District Court,State of Minnesota. ARTICLE XV INDEPENDENT CONTRACTOR The performance by the DBB and the City of all duties and obligations under this Agreement shall be as independent local government units and not as agents of the other Party, and no person employed or utilized by a party shall be considered the employee or agent of the other.Neither Party shall have the authority to enter into any agreement purporting to bind the other without its specific written authorization.The Parties agree this Agreement does not create a partnership between,or a joint venture of the DBB and the City. ARTICLE XVI MISCELLANEOUS Section 16.1 The headings of the Articles in this Agreement are strictly for convenience and shall not in any way be construed as amplifying or limiting any of the terms,provisions or conditions of this IRU Agreement. Section 16.2 When interpreting this Agreement,words used in the singular shall include the plural and the plural,the singular,and"of' is used in the inclusive sense,in all cases where such meanings would be appropriate. Section 163 If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable,then the parties hereby waive such provision to the extent that it is found to be invalid or unenforceable and to the extent that to do so would not deprive one of the parties of the substantial benefit of its bargain. Such provision,to the extent allowable by law and the preceding sentence,shall not be voided or canceled,but instead will be modified by such court so that it becomes enforceable with all of the other terms of this Agreement continuing in fill force and effect. Section 16.4 This IRU Agreement may be amended only by a written instrument executed by all Parties. 9 II Section 16.5 No failure to exercise and no delay in exercising,on the part of either Party hereto,any right,power or privilege hereunder shall operate as a waiver hereof,except as expressly provided herein.Any waiver by either Party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of this Agreement unless and until agreed to in writing by both Parties. Section 16.6 All actions, activities, consents, approvals and other undertakings of the Parties in this IRU Agreement shall be performed in a reasonable and timely manner. Section 16.7 Unless expressly defined herein,words having well known technical or trade meanings shall be so construed. Section 16.8 This IRU Agreement is solely for the benefit of the parties hereto and their permitted successors and assigns. ARTICLE XVII ENTIRE AGREEMENT This Agreement and any Exhibits referenced and attached hereto or to be attached hereto constitutes the entire agreement between the Parties and supersede any and all prior negotiations, understandings and agreements,whether oral or written. 1 IRU GRANTOR: IRU GRANTEE: CITY OF DAKOTA BROADBAND BOARD By: By: Its: Mayor Its:Board Chair Date: Date: By: Its: Clerk Approved as to Form Assistant County Attorney Date K518-477 City-D130 Fiber IRU Agreement Template v4 2-2020 10 EXHIBIT A Description of City IRU Assets Subject to the IRU