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HomeMy WebLinkAboutbocc.res.023.2024RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS (“BOCC”) OF PITKIN COUNTY, COLORADO, APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE BOCC AND THE NORTHWEST COLORADO COUNCIL OF GOVERNMENTS (“NWCCOG”) FOR THE LEASE AND MAINTENANCE OF FIBER OPTIC LINES RESOLUTION NO. 023-2024 RECITALS WHEREAS, Pursuant to Title 29, Article 1, part 2, Colorado Revised Statutes, as amended (the “Intergovernmental Relations Statutes”) and Article XIV, Section 18 of the Colorado Constitution, governments may contract with one another to provide any function, service or facility lawfully authorized to each of the contracting units and any such contract may provide for the joint exercise of the function, service or facility, including the establishment of a separate legal entity to do so, and; WHEREAS, Pursuant to Section 2.8.3 (Actions) of the Pitkin County Home Rule Charter (“HRC”) official action by formal resolution shall be required for all actions of the Board not requiring ordinance power on matters of significant importance affecting citizens, and; WHEREAS, Pitkin County (“Pitkin”) NWCCOG wish to enter into an intergovernmental agreement for the purposes of the lease and maintenance of fiber optic lines, and; WHEREAS, Both Pitkin and NWCCOG are governments authorized to enter into agreements pursuant to C.R.S. § 29-1-203 for purposes including the provision of any function, service, or facility lawfully authorized to each, and; WHEREAS, The BOCC finds that it is in the best interests of the citizens of Pitkin and NWCCOG to enter into this agreement in order to ensure affordable, abundant and resilient broadband services. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Pitkin County, Colorado that Pitkin County is authorized to enter into an Intergovernmental Agreement with NWCCOG as attached hereto as Attachment “A” in substantially the same form satisfactory to the County Attorney, and authorizes the Chair or designee, to sign the resolution and the agreement on behalf of Pitkin County. 1 2 INTRODUCED AND FIRST READ ON THE 10TH DAY OF APRIL, 2024 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE 24TH DAY OF APRIL 2024. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE RESOLUTION PUBLISHED IN THE ASPEN DAILY NEWS ON THE 11TH DAY OF APRIL, 2024. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE 11TH DAY OF APRIL 2024. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE 24TH DAY OF APRIL 2024. POSTED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE 2ND DAY OF MAY 2024. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN DAILY NEWS ON THE 2ND DAY OF MAY, 2024. ATTEST:BOARD OF COUNTY COMMISSIONERS By _________________________ By: _____________________________ Sam Engen Greg Poschman, Chair Clerk to the Board Date: ______________ APPROVED AS TO FORM:MANAGER APPROVAL ___________________________ _________________________________ John Ely, County Attorney Jon Peacock, County Manager Revised 01/01/2024 May-02-2024 INTERGOVERNMENTAL AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISIONERS (“BOCC”) OF PITKIN COUNTY AND THE NORTHWEST COLORADO COUNCIL OF GOVERNMENTS (“NWCCOG”) FOR THE LEASE AND MAINTENANCE OF FIBER OPTIC LINES THIS INTERGOVERNMENTAL AGREEMENT (the “Agreement”) is made this 24th day of April, 2024 by and between the Board of County Commissioners of Pitkin County, Colorado, whose address is 530 East Main Street, Suite 302 Aspen, Colorado 81611 ("the County”) and the Northwest Colorado Council of Governments a Colorado intergovernmental entity, whose address is 249 Warren Avenue, Silverthorne, Colorado, 80498 (“NWCCOG”). Collectively, the County and NWCCOG are referred to as “the Parties” and individually as a “Party.” RECITALS WHEREAS, Pursuant to Title 29, Article 1, part 2, Colorado Revised Statutes, as amended (the “Intergovernmental Relations Statutes”) and Article XIV, Section 18 of the Colorado Constitution, governments may contract with one another to provide any function, service or facility lawfully authorized to each of the contracting units and any such contract may provide for the joint exercise of the function, service or facility, including the establishment of a separate legal entity to do so, and; WHEREAS, Pursuant to Section 2.8.3 (Actions) of the Pitkin County Home Rule Charter (“HRC”) official action by formal resolution shall be required for all actions of the Board not requiring ordinance power on matters of significant importance affecting citizens, and; WHEREAS, Pitkin County (“Pitkin”) NWCCOG wish to enter into an intergovernmental agreement for the purposes of the lease and maintenance of fiber optic lines, and; WHEREAS, Both Pitkin and NWCCOG are governments authorized to enter into agreements pursuant to C.R.S. § 29-1-203 for purposes including the provision of any function, service, or facility lawfully authorized to each, and; WHEREAS, The BOCC finds that it is in the best interests of the citizens of Pitkin and NWCCOG to enter into this agreement in order to ensure affordable, abundant and resilient broadband services, and; WHEREAS, NWCCOG operates and maintains a middle mile fiber optic network called the Project THOR Network which delivers internet services to Meet Me Center (MMC) Hosts within its region, and; WHEREAS, the Project THOR Network includes, without limitation, cables, collocation space, conduits, innerducts, manholes, towers, switches, transmitters, junctions, terminals, internal power sources, battery backups, fault alarm systems, structures, shelters, poles or pole line attachments, similar equipment, and articles of personal property owned or leased by the NWCCOG that is used to provide service, as any or all of the same may be Attachment A updated, supplemented, replaced or expanded, from time to time, and; WHEREAS, Project THOR Meet Me Centers (MMCs) are fiber aggregation points of presence and provide the optical fiber and switch fabric for the delivery of internet services, and; WHEREAS, NWCCOG has been granted an indefeasible right to use (IRU) a certain number of fiber optic strands between Glenwood Springs and Aspen, Colorado, pursuant to the IRU Agreement with Holy Cross Energy (HCE) attached hereto as Exhibit A, and; WHEREAS, the County wishes to obtain and NWCCOG is willing to grant a lease from NWCCOG to the County of six (6) strands of fiber in accordance with the terms of this Agreement, and; WHEREAS, the Parties believe that the interests of the public will be served by permitting the use of the Project THOR Network in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, the Parties agree as follows: 1. NWCCOG leases to the County the six (6) strands of fiber on the segment described on Exhibit A of the IRU, for the route covering 40.31 miles between HCE GW HQ and HCE Aspen Sub (the “Leased Fiber”). 2. Maintenance. a. NWCCOG will manage the Leased Fiber between Glenwood Springs and Aspen and is responsible to the County for all maintenance of the Leased Fiber. This includes managing lit services and notifying the County when the service is unavailable or degraded. NWCCOG is not responsible for repairing fiber cuts that could occur between Glenwood Springs and Aspen. b. NWCCOG shall respond to any interruption of service or a failure of the Leased Fiber to operate in accordance with the Specifications required by the IRU as quickly as reasonably possible not to exceed 3 hours (allowing for delays caused by circumstances beyond the reasonable control of NWCCOG). If any interruption is to exceed 3 hours, communication to the County will be provided regarding the work in progress and expected timing for necessary repairs. c. The County shall notify NWCCOG as soon as reasonably possible after it becomes aware of any damage or degradation to the Leased Fiber. d. The Parties understand that any routine or scheduled maintenance or repair of the Leased Fiber will be done at the direction of Holy Cross Energy pursuant to the IRU. NWCCOG shall be responsible for notifying the County of any routine or scheduled maintenance or repair within twenty- four (24) hours of becoming aware of such scheduling. 3. NWCCOG will provide all switch and related equipment to enable lit services at the Glenwood Springs and Aspen locations. The County will provide all switch and related equipment to enable lit services at all other splice points along the Leased Fiber route between Glenwood Springs and Aspen. Each Party will maintain its equipment at these locations for the term of this Agreement. 4. Term. This Agreement shall commence on the date executed by the second party and be for a term of ten (10) years. At the County’s discretion, it may be renewed for up to three (3) additional five (5) year terms, so long as written notice of intent to renew is provided to NWCCOG at least ninety (90) days prior to the end of the then current term. 5. Compensation. The County shall pay NWCCOG the amount of $208,459.00, comprised of the following: Dark Fiber Lease Fee $174,160 Maintenance Fee $ 26,109 Interconnection/Splice Locations $ 8,190 ___________ TOTAL: $208,459 6. The compensation shall be a one-time payment paid in full within thirty (30) days of the commencement of the term. Compensation for additional five-year terms shall be prorated at the ten-year rate and due at the beginning of each term. There shall be no invoicing and no additional payments or other compensation due. 7. Assignability. This Agreement is not assignable by either Party. 8. Modification. This Agreement may be amended only in writing, following the same formality as the execution of the initial Agreement. 9. Entire Agreement. This Agreement constitutes the entire Agreement between the Parties and all other promises and agreements relating to the subject of this Agreement, whether oral or written, are merged herein. 10. Severability. Should any one or more sections or provisions of this Agreement be judicially adjudged invalid or unenforceable, such judgment shall not affect, impair, or invalidate the remaining provisions of this Agreement, the intention being that the various sections and provisions hereof are severable. 11. Notice. Any notice required or permitted under this Agreement shall be in writing and shall be provided by electronic delivery to the e-mail addresses set forth below and by one of the following methods 1) hand-delivery or 2) registered or certified mail, postage pre-paid to the mailing addresses set forth below. Each Party by notice sent under this paragraph may change the address to which future notices should be sent. Electronic delivery of notices shall be considered delivered upon receipt of confirmation of delivery on the part of the sender. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process. To: Pitkin County With copies to: Jeff Krueger John Ely, County Attorney Telecommunications Manager Pitkin County Attorney’s Office 351 Southside Drive 530 East Main Street, Ste. 301 Basalt, CO 81621 Aspen, CO 81611 telecom@pitkincouty.com attorney@pitkincounty.com To: NWCCOG With copies to: Jon Stavney Executive Director 249 Warren Avenue Silverthorne, CO 80498 jstavney@nwccog.org 7. Governmental Immunity. Nothing in this Agreement is intended and shall not be construed as a waiver of any Party’s rights or protections afforded to them under and state, local, or federal law including, without limitation, the Colorado Governmental Immunity Act, C.R.S. § 24-20-101, et. seq. The Parties agree that each Party shall bear its own liability for any claims or lawsuits arising from any loss, damage, or injuries that occur resulting for the Parties activities arising under this Agreement. 8. Current Year Obligations. The Parties understand and acknowledge that each Party is subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations are expressly dependent and conditioned upon the continuing availability of funds beyond the term of a Party's current fiscal period ending upon the next succeeding December 31. Financial obligations of the Parties payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of the Parties, and other applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated. 9. Binding Rights and Obligations. The rights and obligations of the Parties under this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. 10. Good Faith. The Parties shall implement this Agreement in good faith, including acting in good faith in all matters that require joint or coordinated action. 11. Governing Law/Venue. This Agreement shall be construed according to the laws of the State of Colorado, and venue for any action shall be in the District Court in and for Pitkin County, Colorado. 11. Attorney Fees. In the event that legal action is necessary to enforce any of the provisions of this Agreement, the substantially prevailing Party, whether by final judgment or out of court settlement, shall recover from the other Party all costs and expenses of such action or suit including reasonable attorney fees. 12. No Waiver. The waiver by any Party to this Agreement of any term or condition of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any Party. 13. Authority. Each person signing this Agreement represents and warrants that said person is fully authorized to enter into and execute this Agreement and to bind the party it represents to the terms and conditions hereof. The foregoing Agreement is approved by the Board of County Commissioners of Pitkin County, Colorado at its regular meeting held on the 24th day of April, 2024. The foregoing Agreement is approved by the Northwest Colorado Council of Governments at its regular meeting held on the _____ day of , 2024. In Witness whereof, the Parties hereto have caused this agreement to be executed as of the day and year first above written. NORTHWEST COLORADO COUNCIL OF GOVENMENTS By:_________________________ Jon Stavney, Executive Director BOARD OF COUNTY COMMISSIONERS APPROVED AS TO FORM OF PITKIN COUNTY, COLORADO By:_______________________ By:__________________________ Greg Poschman, Chair John Ely, County Attorney Manager Approval: ATTEST ____________________________ _____________________________ Jon Peacock, County Manager Sam Engen, Deputy County Clerk N/A N/A