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HomeMy WebLinkAboutAgenda Report - March 4, 2020 C-09AGENDA ITEM SUS9 '• CITY OF LODI COUNCIL COMMUNICATION AGENDA TITLE: Adopt Resolution Authorizing City Manager to Execute Professional Services Agreement and Non -Disclosure Agreement with Magellan Advisors, LLC, of Denver, CO for Broadband Feasibility Study Services and Appropriate Funds ($84,800) MEETING DATE: March 4, 2020 PREPARED BY: Electric Utility Director RECOMMENDED ACTION- Adopt a resolution authorizing the City Manager to execute a Professional Services Agreement and Non -Disclosure Agreement with Magellan Advisors, LLC, of Denver, CO for broadband feasibility study services in an amount not to exceed $84,800 and appropriate funds. BACKGROUND INFORMATION: Lodi is working to better understand the feasibility and options to expand access to high-speed broadband throughout the city. Utilities across the country are in a similar position to Lodi regarding evaluation of broadband services. Broadband services in suburban and rural environments have not advanced equally in all jurisdictions and Lodi is looking to evaluate the funding opportunities and partnerships available to expand these services for Lodi residents and businesses. A broadband feasibility study for Lodi will examine the opportunities and risks of providing broadband services to its citizens and businesses, focusing on the most achievable opportunities. To assist Lodi in its evaluation of broadband opportunities, Magellan will provide a comprehensive study that will allow Lodi to make informed decisions regarding the available business models and deployment options. Magellan's study will provide an analysis of the business, technical, operational, financial, investment and regulatory aspects of deploying broadband services within the municipal electric environment. The goal of this study is to provide an objective and industry -based study that informs Lodi of the opportunities and risks of expanding broadband in its community. This will include an analysis of available funding opportunities for underserved communities, as well as evaluation of potential business models including dark fiber leasing, municipal public/private partnership, and even broadband as a public service offering. Per Lodi Municipal Code, Section 3.20.075, engineering and financial service contracts are exempt from bidding requirements and shall be awarded on the basis of professional qualifications and experience, quality of service, past performance and negotiated prices. Over 400 utilities, municipalities and cooperatives utilize Magellan's services to plan and deploy their networks nationwide and Magellan has planned, engineered and deployed over 50 municipal fiber, wireless and hybrid networks with a total value of $1 billion dollars. The proposed study will take approximately six months to complete; the results of which will be presented to the City Council at a future shirtsleeve meeting. Adopt Resolution Authorizing City Manager to Execute Professional Services Agreement and Non -Disclosure Agreement with Magellan Advisors, LLC, of Denver, CO for Broadband Feasibility Study Services and Appropriate Funds ($84,800) March 4, 2020 Page 2 FISCAL IMPACT: The cost to complete the Broadband Feasibility Study is $84,800. Adequate funds are available for this project in the General Fund Capital Improvement Fund. FUNDING AVAILABLE: Appropriate $84,800 from the General Fund Capital Improvement Fund Balance to the Capital Improvement Project GFCP-20010.Contracts. C Andrew Key Deputy City Manager/Internal Services Director ffkheimer Electric Utility Director PREPARED BY: Jeff Berkheimer, Electric Utility Director AGREEMENT FOR PROFESSIONAL SERVICES ARTICLE 1 PARTIES AND PURPOSE Section 1.1 Parties THIS AGREEMENT is entered into on , 20 , by and between the CITY OF LODI, a municipal corporation (hereinafter "CITY"), and Magellan Advisors, LLC (hereinafter "CONTRACTOR"). Section 1.2 Purpose CITY selected the CONTRACTOR to provide the services required in accordance with attached Scope of Services, Exhibit A, attached and incorporated by this reference. CITY wishes to enter into an agreement with CONTRACTOR for broadband feasibility study services (hereinafter "Project") as set forth in the Scope of Services attached here as Exhibit A. CONTRACTOR acknowledges that it is qualified to provide such services to CITY. ARTICLE 2 SCOPE OF SERVICES Section 2.1 Scope of Services CONTRACTOR, for the benefit and at the direction of CITY, shall perform the Scope of Services as set forth in Exhibit A. Section 2.2 Time For Commencement and Completion of Work CONTRACTOR shall commence work pursuant to this Agreement, upon receipt of a written notice to proceed from CITY or on the date set forth in Section 2.6, whichever occurs first, and shall perform all services diligently and complete work under this Agreement based on a mutually agreed upon timeline or as otherwise designated in the Scope of Services. CONTRACTOR shall submit to CITY such reports, diagrams, drawings and other work products as may be designated in the Scope of Services. CONTRACTOR shall not be responsible for delays caused by the failure of CITY staff to provide required data or review documents within the appropriate time frames. The review time by CITY and any other agencies involved in the project shall not be counted against CONTRACTOR's contract performance period. Also, any delays due to 1 weather, vandalism, acts of God, etc., shall not be counted. CONTRACTOR shall remain in contact with reviewing agencies and make all efforts to review and return all comments. Section 2.3 Meetings CONTRACTOR shall attend meetings as may be set forth in the Scope of Services. Section 2.4 Staffing CONTRACTOR acknowledges that CITY has relied on CONTRACTOR's capabilities and on the qualifications of CONTRACTOR's principals and staff as identified in its proposal to CITY. The Scope of Services shall be performed by CONTRACTOR, unless agreed to otherwise by CITY in writing. CITY shall be notified by CONTRACTOR of any change of Project Manager and CITY is granted the right of approval of all original, additional and replacement personnel at CITY's sole discretion and shall be notified by CONTRACTOR of any changes of CONTRACTOR's project staff prior to any change. CONTRACTOR represents it is prepared to and can perform all services within the Scope of Services (Exhibit A) and is prepared to and can perform all services specified therein. CONTRACTOR represents that it has, or will have at the time this Agreement is executed, all licenses, permits, qualifications, insurance and approvals of whatsoever nature are legally required for CONTRACTOR to practice its profession, and that CONTRACTOR shall, at its own cost and expense, keep in effect during the life of this Agreement all such licenses, permits, qualifications, insurance and approvals, and shall indemnify, defend and hold harmless CITY against any costs associated with such licenses, permits, qualifications, insurance and approvals which may be imposed against CITY under this Agreement. Section 2.5 Subcontracts Unless prior written approval of CITY is obtained, CONTRACTOR shall not enter into any subcontract with any other party for purposes of providing any work or services covered by this Agreement. Section 2.6 Term The term of this Agreement commences on April 1, 2020 and terminates upon the completion of the Scope of Services or on March 31 , 2021, whichever occurs first. E ARTICLE 3 COMPENSATION Section 3.1 Compensation CONTRACTOR's compensation for all work under this Agreement shall conform to the provisions of the Fee Proposal, attached hereto as Exhibit B and incorporated by this reference. CONTRACTOR shall not undertake any work beyond the scope of this Agreement unless such additional work is approved in advance and in writing by CITY. Section 3.2 Method of Payment CONTRACTOR shall submit invoices for completed work on a monthly basis, or as otherwise agreed, providing, without limitation, details as to amount of hours, individual performing said work, hourly rate, and indicating to what aspect of the Scope of Services said work is attributable. CONTRACTOR's compensation for all work under this Agreement shall not exceed the amount of the Fee Proposal. Section 3.3 Costs The Fee Proposal shall include all reimbursable costs required for the performance of the Scope of Services. Payment of additional reimbursable costs considered to be over and above those inherent in the original Scope of Services shall be approved in advanced and in writing, by CITY. Section 3.4 Auditing CITY reserves the right to periodically audit all charges made by CONTRACTOR to CITY for services under this Agreement. Upon request, CONTRACTOR agrees to furnish CITY, or a designated representative, with necessary information and assistance needed to conduct such an audit. CONTRACTOR agrees that CITY or its delegate will have the right to review, obtain and copy all records pertaining to performance of this Agreement. CONTRACTOR agrees to provide CITY or its delegate with any relevant information requested and shall permit CITY or its delegate access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with this requirement. CONTRACTOR further agrees to maintain such records for a period of three (3) years after final payment under this Agreement. 3 ARTICLE 4 MISCELLANEOUS PROVISIONS Section 4.1 Nondiscrimination In performing services under this Agreement, CONTRACTOR shall not discriminate in the employment of its employees or in the engagement of any sub CONTRACTOR on the basis of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, age, or any other criteria prohibited by law. Section 4.2 ADA Compliance In performing services under this Agreement, CONTRACTOR shall comply with the Americans with Disabilities Act (ADA) of 1990, and all amendments thereto, as well as all applicable regulations and guidelines issued pursuant to the ADA. Section 4.3 Indemnification and Responsibility for Damage CONTRACTOR to the fullest extent permitted by law, shall indemnify and hold harmless CITY, its elected and appointed officials, directors, officers, employees and volunteers from and against any claims, damages, losses, and expenses (including reasonable attorney's fees and costs), arising out of performance of the services to be performed under this Agreement, provided that any such claim, damage, loss, or expense is caused by the negligent acts, errors or omissions of CONTRACTOR, any subcontractor employed directly by CONTRACTOR, anyone directly or indirectly employed by any of them, or anyone for whose acts they may be liable, except those injuries or damages arising out of the active negligence, sole negligence, or sole willful misconduct of the City of Lodi, its elected and appointed officials, directors, officers, employees and volunteers. CITY may, at its election, conduct the defense or participate in the defense of any claim related in any way to this indemnification. If CITY chooses at its own election to conduct its own defense, participate in its own defense, or obtain independent legal counsel in defense of any claim related to this indemnification, CONTRACTOR shall pay all of the costs related thereto, including without limitation reasonable attorney fees and costs. The defense and indemnification obligations required by this Agreement are undertaken in addition to, and shall not in any way be limited by the insurance obligations set forth herein. Section 4.4 No Personal Liability Neither the City Council, nor any other officer or authorized assistant or agent or City employee shall be personally responsible for any liability arising under this Agreement. 4 Section 4.5 Responsibility of CITY CITY shall not be held responsible for the care or protection of any material or parts of the work described in the Scope of Services prior to final acceptance by CITY, except as expressly provided herein. Section 4.6 Insurance Requirements for CONTRACTOR CONTRACTOR shall take out and maintain during the life of this Agreement, insurance coverage as set forth in Exhibit C attached hereto and incorporated by this reference. Section 4.7 Successors and Assigns CITY and CONTRACTOR each bind themselves, their partners, successors, assigns, and legal representatives to this Agreement without the written consent of the others. CONTRACTOR shall not assign or transfer any interest in this Agreement without the prior written consent of CITY. Consent to any such transfer shall be at the sole discretion of CITY. Section 4.8 Notices Any notice required to be given by the terms of this Agreement shall be in writing signed by an authorized representative of the sender and shall be deemed to have been given when the same is personally served or upon receipt by express or overnight delivery, postage prepaid, or three (3) days from the time of mailing if sent by first class or certified mail, postage prepaid, addressed to the respective parties as follows: To CITY: City of Lodi 221 West Pine Street P.O. Box 3006 Lodi, CA 95241-1910 Attn: Electric Utility Director To CONTRACTOR: Magellan Advisors, LLC John Honker, President 99918 th Street, Suite 3000 Denver, CO 80202 Section 4.9 Cooperation of CITY CITY shall cooperate fully and in a timely manner in providing relevant information it has at its disposal relevant to the Scope of Services. Section 4.10 CONTRACTOR is Not an Employee of CITY CONTRACTOR agrees that in undertaking the duties to be performed under this Agreement, it shall act as an independent contractor for and on behalf of CITY and not an employee of CITY. CITY shall not direct the work and means for accomplishment of 5 the services and work to be performed hereunder. CITY, however, retains the right to require that work performed by CONTRACTOR meet specific standards without regard to the manner and means of accomplishment thereof. Section 4.11 Termination CITY may terminate this Agreement, with or without cause, by giving CONTRACTOR at least ten (10) days written notice. Where phases are anticipated within the Scope of Services, at which an intermediate decision is required concerning whether to proceed further, CITY may terminate at the conclusion of any such phase. Upon termination, CONTRACTOR shall be entitled to payment as set forth in the attached Exhibit B to the extent that the work has been performed. Upon termination, CONTRACTOR shall immediately suspend all work on the Project and deliver any documents or work in progress to CITY. However, CITY shall assume no liability for costs, expenses or lost profits resulting from services not completed or for contracts entered into by CONTRACTOR with third parties in reliance upon this Agreement. Section 4.12 Confidentialitv CONTRACTOR agrees to maintain confidentiality of all work and work products produced under this Agreement, except to the extent otherwise required by law or permitted in writing by CITY. CITY agrees to maintain confidentiality of any documents owned by CONTRACTOR and clearly marked by CONTRACTOR as "Confidential" or "Proprietary", except to the extent otherwise required by law or permitted in writing by CONTRACTOR. CONTRACTOR acknowledges that CITY is subject to the California Public Records Act. Section 4.13 Applicable Law, Jurisdiction, Severability, and Attorney's Fees This Agreement shall be governed by the laws of the State of California. Jurisdiction of litigation arising from this Agreement shall be venued with the San Joaquin County Superior Court. If any part of this Agreement is found to conflict with applicable laws, such part shall be inoperative, null, and void insofar as it is in conflict with said laws, but the remainder of this Agreement shall be in force and effect. In the event any dispute between the parties arises under or regarding this Agreement, the prevailing party in any litigation of the dispute shall be entitled to reasonable attorney's fees from the party who does not prevail as determined by the San Joaquin County Superior Court. 6 Section 4.14 City Business License Requirement CONTRACTOR acknowledges that Lodi Municipal Code Section 3.01.020 requires CONTRACTOR to have a city business license and CONTRACTOR agrees to secure such license and pay the appropriate fees prior to performing any work hereunder. Section 4.15 Captions The captions of the sections and subsections of this Agreement are for convenience only and shall not be deemed to be relevant in resolving any question or interpretation or intent hereunder. Section 4.16 Integration and Modification This Agreement represents the entire understanding of CITY and CONTRACTOR as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may not be modified or altered except in writing, signed by both parties. Section 4.17 Contract Terms Prevail All exhibits and this Agreement are intended to be construed as a single document. Should any inconsistency occur between the specific terms of this Agreement and the attached exhibits, the terms of this Agreement shall prevail. Section 4.18 Severability The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. Section 4.19 Ownership of Documents All documents, photographs, reports, analyses, audits, computer media, or other material documents or data, and working papers, whether or not in final form, which have been obtained or prepared under this Agreement, shall be deemed the property of CITY. Upon CITY's request, CONTRACTOR shall allow CITY to inspect all such documents during CONTRACTOR's regular business hours. Upon termination or completion of services under this Agreement, all information collected, work product and documents shall be delivered by CONTRACTOR to CITY within ten (10) calendar days. CITY agrees to indemnify, defend and hold CONTRACTOR harmless from any liability resulting from CITY's use of such documents for any purpose other than the purpose for which they were intended. 7 Section 4.20 Authority The undersigned hereby represent and warrant that they are authorized by the parties to execute this Agreement. Section 4.21 Federal Transit Funding Conditions ❑ If the box at left is checked, the Federal Transit Funding conditions attached as Exhibit D apply to this Agreement. In the event of a conflict between the terms of this Agreement or any of its other exhibits, and the Federal Transit Funding Conditions, the Federal Transit Funding Conditions will control. IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this Agreement as of the date first above written. ATTEST: PAMELA M. FARRIS Assistant City Clerk APPROVED AS TO FORM: JANICE D. MAGDICH, City Attorney in CITY OF LODI, a municipal corporation STEPHEN SCHWABAUER City Manager MAGELLAN ADVISORS, LLC By: _ Name Title: John Honker President Attachments: Exhibit A — Scope of Services Exhibit B — Fee Proposal Exhibit C — Insurance Requirements Exhibit D — Federal Transit Funding Conditions (if applicable) Funding Source: GFCP-20010 Doc ID: CA:Rev.01.2015 (Business Unit & Account No.) 8 PROPOSAL Exhibit A/B aI I 1 111' 0 A 1 11 FF I I RFP # 176363: Fiber Network Expansion PF9L FWigq�, Novembejlie '1�; r.00 pm Electric Utility Director Prepared For: The City of Palro*04kOdi Utilities Department & Information Technology Department Prepared By: John Honker Prepared By: Jory Wolf Magellan Advisors VP of Digital Innovation, Maonkd@magellan-advisors.com 0: 818.312.7768 0: 786.208.8952 E:Jwolf@magellan-advisors.com www.magellan-advisors.com Overview of Magellan Advisors Magellan Advisors is the only firm that provides comprehensive fiber network development for municipalities, utilities and cooperatives. We are a full spectrum planning and implementation firm that assists our clients develop transformational fiber and wireless networks for their communities. We provide the full spectrum of planning, consulting, engineering, procurement, construction management and operations, giving our clients a turnkey partner to see their projects from concept to completion. Over 400 utilities, municipalities and coops utilize Magellan's services to plan and deploy their networks nationwide. We partner with our utility and municipal clients every step of the way, whether they are deploying institutional fiber networks, deploying fiber to the home or modernizing utility communications. We are a hands-on firm with strong project management abilities and implementation expertise to manage the heavy lift of deploying fiber networks. We take a very consultative approach to building fiber networks, helping our clients make the best decisions to minimize costs and maximize benefit to the community. We specialize in developing multi-purpose fiber networks to support electric grid modernization, municipal connectivity, wireless attachment and fiber to the home. Through development of over 50 municipal broadband networks, we have refined an approach that enables our clients to build state-of-the-art infrastructure to serve utility needs and simultaneously create a platform for next -generation broadband. We have planned, engineered and deployed over 50 municipal fiber, wireless and hybrid networks with a total value of $1 billion dollars. Through our turnkey deployments, 1 million homes and businesses now have access to fiber and thousands of schools, utilities and governments are equipped with next -generation broadband. 2 www.mageflan-advisors.com 2019 Magellan Advisors www.magellan-advisors.com 2 2020 Magellan Advisors Corporate Profile Magellan Advisors, LLC is a Denver-based firm with local offices in Los Angeles, Orlando, Miami, Kansas City and Houston. Magellan has been business serving municipalities and utilities for 15 years. Magellan attracts the best and brightest staff from the telecom, utility and local government sectors with over 50 subject matter experts that lead the industry in consulting, engineering, construction management and operations. We specialize in developing multi-purpose fiber networks to support electric grid modernization, municipal connectivity, wireless attachment and fiber to the home. Magellan Advisors always represents the best interests of our clients first. We are vendor independent and have no commercial agreements or interests with any vendors that may bid on construction or other services in relation to this project. Our goal is to find the best solutions for our clients communities to make them successful. www.magellan-advisors.com 4 2020 Magellan Advisors Customer Testimonials • We're excited to build this network to serve our community with gigabit fiber! Just wanted to say thank you and we are fortunate to have partnered with Magellan. -Carmen Lichty, Manager, Newport Utilities, TN • Without Magellan, our network would have been double the estimated project costs and taken longer to complete. We could not be more pleased with the level of service and professionalism and would highly recommend Magellan to any city looking for fiber solutions for their community. Nathan Watkins, Assistant City Manager, City of Mont Belvieu • Transforming Rock Falls into a Gigabit City has been made possible by our partnership with Magellan. Magellan's responsiveness and knowledge has made the process a pleasure. I would highly recommend them to any City looking for guidance with their broadband system. -Robin Blackert, City Administrator, Rock Falls Utilities, IL • We were seeking a broadband consulting firm that could give us actionable and practical steps toward developing a Gigabit broadband network. Magellan's real-world experience has allowed us to take the next steps in achieving our broadband goals. Today, our network serves key businesses throughout Hudson with Gigabit fiber. -Paul Leedham, Manager, City of Hudson, OH • Magellan's been our continued partner providing network design, implementation and project and construction management services. Their on-time delivery and create approaches and vast experience has been valuable in guiding development of our network. -Don Dennis, CIO, City of Clermont • Magellan's staff are exceptionally knowledgeable in all areas of broadband and have helped us develop our business strategy to provide services across the County. -Lewis Foster, Broadband Utility Manager, Columbia County Broadband • Magellan has brought true value to our broadband deployment by providing a single -source solution across the planning and implementation of our network. -Melinda Miller, Director, Town ofJupiter www.magellan-advisors.com 71 2020 Magellan Advisors Key Customers Glendale Water & Power CA Hudson Electric OH Riverside Public Utilities CA City of Westerville OH Rancho Cucamonga Utilities CA Rock Falls Electric Utility IL City of Sacramento CA Newport Utilities TN Orlando Utilities Commission FL Sequachee Electric Membership Corporation TN Salt River Project AZ Meriwhether Lewis Electric Cooperative TN Bartow Utilities FL Morrisville Utility Systems TN Holyoke Gas & Electric MA Lenoir City Utilities TN Chicopee Electric Light MA Middle Tennessee Electric Membership Corporation TN Winter Park Electric MA Vermont Transmission Company VT Hamilton Electric OH Morrisville Electric VT Westerville Electric OH Burlington Electric Department VT Rock Falls Electric Utility IL Waverly Utilities IA Municipalities City of Rancho Cucamonga CA City of Wellington FL City of West Hollywood CA City of Hallandale Beach FL Rancho Santa Fe CA City of Port Orange FL City of Riverside CA City of Lakeland FL City of Davis CA Atlanta Beltline GA City of West Sacramento CA City of Davenport IA City of Woodland CA City of Waverly IA City of El Segundo CA City of Ketchum ID City of Birmingham AL City of Rock Falls IL City of Tuscaloosa AL City of Minden LA City of Fort Morgan CO City of Baltimore MA City of Wray CO City of Columbia MO City of Fort Collins CO City of Missoula MT City of Centennial CO City of Cornelius NC City of Yuma CO City of Haywood NC City of Bartow FL City of Mooresville NC City of Winter Garden FL City of Davidson NC City of Clermont FL City of Highlands NC City of Wilton Manors FL City of Syracuse NY City ofJupiter FL City of Rochester NY City of Daytona Beach FL City of Hamilton OH City of Winter Haven FL City of Sumter SC City of Winter Park FL City of Lake Jackson TX City of Sunrise FL City of College Station TX City of Fort Lauderdale FL City of Bryan TX City of Palm Coast FL City of New Braunfels TX City of Cocoa FL City of Mont Belvieu TX City of Palm Beach Gardens FL City of Bristol VA City of Ormond Beach FL City of Walla Walla WA • Yolo County CA Missoula County MT Strathcona County, Alberta, Canada CA Land of Sky Regional Council NC Sonoma County CA Niagara County Airport Stakeholder Group NY Yuma County CO Port of Whitman County WA Seminole County FL Port of Walla Walla WA Flagler County School District FL Pierce County WA South Florida Regional Council FL Marion County WA Columbia County GA Niobrara County WY Boone County MO Converse County WY www.mageflan-advisors.com 6 2020 Magellan Advisors Project Methodology Magellan understands that the City of Lodi would like to better understand the feasibility and options to expand access to high-speed broadband in its community. Municipal electric utilities across the US are in a similar position to Lodi regarding broadband. Broadband services in suburban and rural environments have not advanced equally to services in the cities, yet residents of these communities need these services to drive the many applications that require fast, reliable broadband. Municipal electric utilities often evaluate the feasibility of providing these services, whether directly, or though partners that may share in the financing, operations and management of broadband service. A broadband feasibility study for Lodi will examine the opportunities and risks of providing broadband services to its citizens and businesses, focusing on the most achievable opportunities. To assist Lodi in its evaluation of broadband opportunities, Magellan will provide a comprehensive Broadband Feasibility Study that will allow Lodi to make informed decisions the available options. Magellan's Study will provide a comprehensive analysis of the business, technical, operational, financial, investment and regulatory aspects of deploying broadband services within the municipal electric environment. Our goal is to provide an objective and industry -based study that informs Lodi of the opportunities and risks of expanding broadband in its community. We believe that a thorough analysis of the following factors is key to making the right decisions and taking the right steps forward. Methodology for Lodi Broadband Feasibility Study • Work with Lodi to gain a clear understanding of its strategic goals, objectives and the roles it may play in deployment of broadband services within its electric footprint; • Determine the business and regulatory environment that Lodi should consider and analyze regulatory risks; • Utilize public broadband penetration data, existing service offerings and demographic information to assess market demand, without the need to engage Lodi's customers directly, use market information from similar communities to determine reasonable take rates and services; • Assess demand from Lodi's internal and external stakeholders where appropriate to determine demand for expanded fiber and broadband services; • Develop a "State of the Market" for Lodi that describes the current broadband environment in Lodi, current issues and gaps; • Assess the feasibility of using Lodi's existing right of way, fiber, pole lines and other assets to reduce the cost of broadband deployments in its electric service area; • Determine the benefits of expanding broadband, in terms of economic development, education, www.ma,gellan-advisorsxom % 2020 Magellan Advisors healthcare, municipal and regional government and the quality of life of its constituents and electric customers; • Determine how a expanded fiber network would create added value for Lodi in terms of grid automation, smart metering, IoT, smart city applications and additional efficiencies and cost reductions; • Identify business and financial scenarios for Lodi to consider for deployment of broadband services, paying special consideration to a range of feasible business model options such as retail, wholesale, leasing and partnership models; • Develop pro -formas and financial models for broadband deployment in the target areas, conduct scenario and sensitivity analyses and determine probable outcomes in terms of financial metrics; • Based on the findings, provide a cost/benefit and risk/reward analysis of the various options, workshop these with the Lodi team and make any presentations to the City that are required. Task 1: Broadband Regulatory Analysis Magellan will provide a regulatory analysis of the broadband environment for California municipal utilities considering deploying broadband. It will define the requirements under a range of different business models, including wholesale, retail and partnership. It will analyze FCC, CPUC, federal law enforcement and other statutory requirements that Lodi should be aware of and the potential risks and mitigation strategies that Lodi can consider in the evaluation of broadband. Task 2: Broadband Market Analysis Magellan's market analysis will analyze the providers, services, pricing, speeds, territories and competition within Lodi's market. We will document all publicly owned and privately -owned networks in Lodi and build a comprehensive broadband map to illustrate how Lodi is served by broadband networks today. This analysis will document current and planned fiber networks (access, metro, long-haul), facilities, data centers, and related infrastructure in the Lodi electric footprint to determine supply-side dynamics of the market. This information will be relevant for Lodi's analysis of the competitive market, its opportunities, its risks and its strategic positioning of new broadband services. Task 3: Broadband Data Collection & Benchmarking Magellan will develop key data points and benchmarks that will be utilized throughout the Broadband Feasibility Study, including: • Accurate design and construction costs for fiber and wireless, specific to the Lodi market; • Real-world operations and maintenance costs for deployed fiber and wireless networks; • Real-world operational costs for content, staffing, customer service, management and other functions; • Geographic and density analysis of the market; www.ma,gellan-advisorsxom g 2020 Magellan Advisors • Demographic analysis of the market and other surrounding areas (residential single-family, multifamily, small business, enterprise, education and healthcare, etc.) Magellan Advisors will assist Lodi develop industry benchmarks to further the analysis of feasible opportunities. Magellan will call on a number of resources to collect data on industry benchmarks, including actual metrics that Magellan has retained through planning, construction and operation of broadband networks, data from other broadband implementations around the country, unit costs from local construction firms and other industry sources. Magellan will provide detailed benchmarks for construction, bandwidth and capacity figures, operations and maintenance costs, estimated take rates, demographic factors and other relevant data points of interest to Lodi. Task 4: Conceptual Engineering Design Magellan will provide conceptual engineering design to test the feasibility of deploying broadband services to businesses, homes and community anchor organizations. This high-level design will provide analysis of fiber implementation in key areas of the communities. We will utilize the latest design techniques and technology standards to model the design and costs for outside plant fiber backbone, feeder, distribution, service drops, equipment and services, as well as renewal and replacement of components for each class of assets deployed in the network (fiber, field facilities, headend equipment, customer equipment). This will also include an analysis of wireless infrastructure to serve the most rural residents, where fiber deployment may be economically challenged. We will incorporate all cost estimates for capital into our Broadband Financial Sustainability Model to conduct further financial analysis of the proposed network. Our model provides comprehensive capital and operational costs for buildout in year -by -year schedules that account for all revenues and costs borne by Lodi's proposed network. Task 5: Business Model Analysis Magellan will incorporate capital and operational cost data collected through the conceptual engineering design into our Broadband Financial Sustainability Model, a financial planning tool specifically designed for assessing the feasibility of broadband utilities. Our Broadband Financial Sustainability Model ("BFS Model)" is often employed by utilities, coops and bond underwriters to assess financial feasibility and make informed funding decisions for broadband investment. This information will help Lodi evaluate various business models for deploying broadband services, as each has different funding requirements, rates of return and risk profiles. Magellan will work with Lodi to define the most optimal business models to evaluate for broadband deployment, which may include the following: • Retail services to a range of customer segments, including residential or commercial; • Retail services that leverage other utilities for outsourced content and services; • Fiber leasing arrangements; www.ma,gellan-advisorsxom 2020 Magellan Advisors • Public-private partnerships with existing providers; • Retail services to government, education, healthcare and anchor organizations; • Dark fiber investment only, using private partners for operations and management; • Others to be determined. We will work with Lodi to identify the optimal business models by analyzing the financial outcomes of each. This process will assess the funding requirements (upfront and ongoing), revenues, operating costs, debt service costs, renewal and replacement and related costs borne by each business model. We will build pro forma financial statements that forecast financial performance of each business model and run sensitivity analysis on them to understand both the upside and downside risk. We suggest creating profiles for each scenario that lay out the important business, operational, financial and regulatory aspects of each option so Lodi can compare them side-by-side to one another. We propose to workshop the results with Lodi to help you fully understand the options and utilize SWOT analyses to help guide your thinking to determine which ones are most feasible for Lodi. Task 6: Financial Analysis & Alternatives Our models provide investment grade plans through which over $1 billion in broadband investments have been made in the US. They are regularly used to support investment through private equity, traditional capital markets and grant funding programs. Using our financial tools, we will assist Lodi to test the financial feasibility of the various business model options. We utilize formal financial planning methodologies to account for all revenues, costs, funding, debt service, reserves and expansion costs in broadband networks, including engineer's estimates and documentation for all figures represented in our models. The methodology we propose to use in testing Lodi's business model options follows: 1. Develop cost models for the network, including one-time and ongoing capital expenditures to build the network; 2. Develop the cost model for operations, including O&M, network operations, field services, staffing, billing, and customer service; 3. Estimate renewal and replacement costs based on the economic lifetime of each asset class, assess depreciation schedules, calculate book and tax depreciation; 4. From the market analysis, determine the customer segmentation, market sizes and population/business growth rates; 5. Determine initial and ongoing take rates on the network across each type of customer (resident, business, school, hospital, etc.); 6. Assess price elasticity in the current network and estimate how changes in price impact demand and ultimately take rates; 7. Determine competitive rate cards for potential services using pricing information from the market analysis and benchmarking information; 8. Develop financial statements including pro -forma income statements, balance sheets and statements of cash flows; www.ma,gellan-advisorsxom 10 2020 Magellan Advisors 9. Conduct sensitivity analysis on the project to determine overall financial sustainability using key metrics such as free cash flow, debt service coverage, operating margin, and net income; 10. Define financial metrics to use for final assessment of financial performance, which may include internal rate of return, return on equity, return on assets or others to be developed by Lodi and Magellan; 11. Recommend the most feasible business model based on overall business and financial sustainability and long-term value to Lodi. Task 7: Analysis of the Findings, Workshops & Final Report Magellan will bring together the data and analysis completed into a comprehensive report that will inform Lodi of the various options to expand broadband in its community. It will detail the overall costs, feasibility, opportunity, benefits to all stakeholders (electric utility, citizens, businesses, schools, healthcare, etc), risks and possible paths forward. It will also provide detailed information from other municipal utilities that have deployed broadband services using different business models, the processes they've used, challenges and benefits that were received. The goal of the final report is to educate and inform Lodi's leadership of the various alternatives. Magellan will deliver the final written report, high-level designs, financial plans and other content created through the project to Lodi. We will be prepared to present the final report (and any interim reports needed) to City leadership at your request. www.ma,gellan-advisorsxom 11 2020 Magellan Advisors Project Timeline Task Description Month 1 Month 2 Month 3 Month 4 Month 5 Month 6 1 Broadband Regulatory Analysis Id 2 Broadband Market Analysis 3 Interim Report - State of the Market 4 Data Collection & Benchmarking 5 Conceptual Engineering Design 6 Business Model Analysis 7 Analysis of Findings, Workshops & Final Report www.ma,gellan-advisors.com 12 2020 Magellan Advisors Pricing Magellan Advisors will bill on a monthly basis in seven equal installments. Travel and incidental expenses will be billed as incurred with a 10% administrative fee on expenses. Any travel will be coordinated and approved by Lodi ahead of time. Invoices are payable on net 30 terms from the date of invoice. For any additional services, Magellan is happy to offer its services at a $210/hour blended rate. Project Amount Broadband Feasibility Study $79,800 Travel & Incidental Expense Budget $5,000 Total Project $84,800 Signature & Acceptance Signature of this Statement of Work by Lodi warrants that all components of this proposal are acceptable to Lodi and that the person(s) executing it have the right, power and authority to do so. Magellan Advisors, LLC A Florida Limited Liability Company 999 18th Street, Suite 3000 Denver, CO 80202 City of Lodi Print Name: John Honker Print Name: Title: President & CEO Title: Signature: Signature: Date: 1/30/2020 Date: www.ma,gellan-advisorsxom 13 2020 Magellan Advisors www.magellan-advisors.com 14 2020 Magellan Advisors i EXHIBIT C NOTE: The City of Lodi is now using the online insurance program PINS Advantage. Once you have been awarded a contract you will receive an email from the City's online insurance program requesting you to forward the email to your insurance provider(s) to submit the required insurance documentation electronically Insurance Requirements for Professional Services Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: ISO Form Number CA 00 01 covering any auto or if Contractor has no owned autos, then hired, and non - owned autos with limit no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. 4. Professional Liability (Errors and Omissions) Insurance appropriate to the Consultant's profession, with limits not less than $1,000,000 per occurrence or claim, $2,000,000 aggregate. May be waived by Risk Manager depending on the scope of services. Other Insurance Provisions: (a) Additional Named Insured Status The City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers are to be covered as additional insureds on the CGL and auto policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor's insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used (b) Primary and Non -Contributory Insurance Endorsement The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or excess insurance. For any claims related to this contract, the Contractor's insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. (c) Waiver of Subrogation Contractor hereby grants to City of Lodi a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City of Lodi by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Lodi has received a waiver of subrogation endorsement from the insurer NOTE: (1) The street address of the CITY OF LODI must be shown along with (a) and (b) and (c) above: 221 West Pine Street, Lodi, California, 95240; (2) The insurance certificate must state, on its face or as an endorsement, a description of therp oiect that it is insuring. (d) Severability of Interest Clause The term "insured" is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to increase the limit of the company's liability under the Contractors commercial general liability and automobile liability policies. (e) Notice of Cancellation or Change in Coverage Endorsement This policy may not be canceled nor the coverage reduced by the company without 30 days' prior written notice of such cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine St., Lodi, CA 95240. Page 1 1 of 2 pages I Risk: rev. 3/1/2018 (f) Continuity of Coverage All policies shall be in effect on or before the first day of the Term of this Agreement. At least thirty (30) days prior to the expiration of each insurance policy, Contractor shall furnish a certificate(s) showing that a new or extended policy has been obtained which meets the minimum requirements of this Agreement. Contractor shall provide proof of continuing insurance on at least an annual basis during the Term. If Contractor's insurance lapses or is discontinued for any reason, Contractor shall immediately notify the City and immediately obtain replacement insurance. Contractor agrees and stipulates that any insurance coverage provided to the City of Lodi shall provide for a claims period following termination of coverage which is at least consistent with the claims period or statutes of limitations found in the California Tort Claims Act (California Government Code Section 810 et seq.). (g) Failure to Comply If Contractor fails or refuses to obtain and maintain the required insurance, or fails to provide proof of coverage, the City may obtain the insurance. Contractor shall reimburse the City for premiums paid, with interest on the premium paid by the City at the maximum allowable legal rate then in effect in California. The City shall notify Contractor of such payment of premiums within thirty (30) days of payment stating the amount paid, the name(s) of the insurer(s), and rate of interest. Contractor shall pay such reimbursement and interest on the first (1st) day of the month following the City's notice. Notwithstanding any other provision of this Agreement, if Contractor fails or refuses to obtain or maintain insurance as required by this agreement, or fails to provide proof of insurance, the City may terminate this Agreement upon such breach. Upon such termination, Contractor shall immediately cease use of the Site or facilities and commence and diligently pursue the removal of any and all of its personal property from the site or facilities. (h) Verification of Coverage Consultant shall furnish the City with a copy of the policy declaration and endorsement page(s), original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Failure to exercise this right shall not constitute a waiver of the City's right to exercise after the effective date. (i) Self -Insured Retentions Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. (j) Insurance Limits The limits of insurance described herein shall not limit the liability of the Contractor and Contractor's officers, employees, agents, representatives or subcontractors. Contractor's obligation to defend, indemnify and hold the City and its officers, officials, employees, agents and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement in the Agreement for Contractor to procure and maintain a policy of insurance. (k) Subcontractors Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors (1) Claims Made Policies If any of the required policies provide coverage on a claims -made basis: 1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. 3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. (m) Qualified Insurer(s) All insurance required by the terms of this Agreement must be provided by insurers licensed to do business in the State of California which are rated at least "A-, VI" by the AM Best Ratings Guide, and which are acceptable to the City. Non -admitted surplus lines carriers may be accepted provided they are included on the most recent list of California eligible surplus lines insurers (LESLI list) and otherwise meet City requirements. Page 2 1 of 2 pages Risk: rev. 3/1/2018 NON -DISCLOSURE AGREEMENT BETWEEN THE CITY OF LODI AND MAGELLAN ADVISORS, LLC This NON -DISCLOSURE AGREEMENT (the "Agreement"), dated as of 2020 (the "Effective Date"), is entered into by and between the City of Lodi, a municipal corporation, (the "Disclosing Party") and Magellan Advisors, LLC, a Florida Limited Liability Company qualified to do business in California (the "Receiving Party") (individually, a "Party" and, collectively, the "Parties"). RECITALS The Parties entered into an agreement for professional consulting services effective _, 2020 (the "Contract") for broadband feasibility study services. 2. In its performance of consulting services, the Receiving Party and its authorized members, directors, officers, employees, agents and representatives may acquire and otherwise gain access to certain Confidential Information of the Disclosing Party, including, but not limited to information, data, electronic files and/or drawings related to the City of Lodi's fiber optic network and electric distribution system assets, which is exempt from public disclosure under California Government Code section 6254.16. 3. The Disclosing Party would not share or disclose any Confidential Information to the Receiving Party but for the legal protections against unauthorized disclosures intended to be afforded by California law and this Agreement, and is relying on this Agreement in disclosing such Confidential Information to the Receiving Party. AGREEMENT In consideration of the foregoing recitals and mutual covenants, terms and conditions, the Parties agree, as follows: 1. Confidential Information. " Confidential Information" means any and all fiber optic and electric distribution system asset information of a non-public, proprietary or confidential nature, in any form or medium, written or oral, concerning or relating to the Disclosing Party (whether prepared by the Disclosing Party, its employees or agents, and irrespective of the form or means of communication and whether it is labeled or otherwise identified as confidential) that is furnished or made available to the Receiving Party by the Disclosing Party. 2. Exceptions. The Receiving Party agrees to maintain as confidential, to the extent permitted or required by applicable law, all Confidential Information furnished or otherwise made available to the Receiving Party by the Disclosing Party. Notwithstanding the foregoing and the provisions of Section 1, "Confidential Information" shall exclude (and the Receiving Party shall not be under any obligation to maintain in confidence) any information (or any portion thereof) disclosed to the Receiving Party by the Disclosing Party to the extent that such information: (a) is in the public domain at the time of disclosure; or (b) at the time of or following disclosure, becomes generally known or available through no act or omission on the part of the Disclosing Party; or (c) is known, or becomes known, to the Receiving Party from a source other than the Disclosing Party or its Representatives (as defined herein), provided that disclosure by such source is not in breach of a confidentiality agreement with the Disclosing Party; or (d) is independently developed by the Receiving Party without violating any of its obligations under this Agreement or any other agreement between the Parties; or (e) is legally required to be disclosed by judicial or other governmental action; provided, however, that prompt notice of such judicial or other governmental action shall have been first given to the Disclosing Party, which shall be afforded the opportunity to exhaust all reasonable legal remedies to maintain the Confidential Information in confidence, in accordance with Section 7 below; or (f) is permitted to be disclosed by a formal written agreement executed by and between the Parties. Specific information shall not fall within the exceptions of Sections 2(a) through 2(f) above merely because it is embraced by more general information falling within such exceptions. 3. California Public Records Act. The Receiving Party acknowledges that the Disclosing Party is a public agency subject to the requirements of the California Constitution, Article 1, Section 3 and California Public Records Act Cal. Gov. Code section 6250 et seq. The Receiving Party acknowledges that the Disclosing Party may submit to or otherwise provide access to the Receiving Party Confidential Information that the Disclosing Party considers to be protected from disclosure pursuant to exemptions granted by applicable California law. Whether or not there is a request or demand of any third party not a Party to this Agreement (the "Requestor") for the production, inspection and/or copying of information designated by the Disclosing Party as Confidential Information, the Disclosing Party shall be solely responsible for taking whatever legal steps the Disclosing Party deems necessary to protect information deemed by it to be Confidential Information and to prevent release of information to the Requestor (including the release of such information by the Receiving Party). Under no circumstances will the Receiving Party be permitted to comply with the Requestor's demand for disclosure of such Confidential Information that the Disclosing Party deems confidential and not intended for disclosure to the general public, or otherwise publicly disclose the Confidential Information to any person not authorized by law to receive such information. 4. Confidential Information. As practicable, the Confidential Information shall be marked with the words "Confidential" or "Confidential Material" or with words of similar import. The Disclosing Party shall instruct the Receiving Parties that information of a financial, personal, or proprietary nature being conveyed orally and intended by the Disclosing Party to be covered by the terms of this Agreement, is deemed Confidential Information. To the extent possible, the Disclosing Party shall endeavor to mark any electronic document intended to be covered by the terms of this Agreement with the words "Confidential" or similar words, or, if that is not possible or would be exceedingly difficult, the City shall notify the Receiving Parties (for example, by covering e-mail transmitting the electronic document) that the electronic document is Confidential Information. The City's failure, for whatever reason, to mark any material at the time it is produced to the Receiving Party, or to notify it that oral or electronic material is Confidential Information at the time it is provided, shall not take the material out of the coverage of this Agreement for all time, and the Receiving Party shall treat the material as Confidential Information once the City has notified it that the material is to be covered by this Agreement. 2 5. Duty to Keep Confidential. The Receiving Party acknowledges that the Confidential Information is proprietary and a valuable asset of the Disclosing Party and agrees that the Receiving Party shall take reasonable precautions to ensure that such Confidential Information is safeguarded against disclosure to unauthorized employees or third parties. (a) The Receiving Party shall use the Confidential Information solely as permitted by the Contract and shall not sell Confidential Information or otherwise disclose City utility customers' personal information under any circumstances and without the prior written consent of the City. The Receiving Party shall not disclose the Confidential Information, or portions thereof, to any directors, officers, partners, managers, members, employees, advisors, agents, sub- contractors and other representatives of the Receiving Party and their subsidiaries and affiliates, including, without limitation, attorneys, accountants, consultants, and financial advisors (collectively, the "Representatives"), except to those who need to know such information for the purpose of advising City and who agree to the terms of this Agreement. (b) The Receiving Party agrees that any of the Representatives to whom the Confidential Information is disclosed will be informed of the confidential or proprietary nature of such information and of the Receiving Party's obligations under this Agreement. The Receiving Party is responsible for any use of Confidential Information by any of its Representatives. (c) The Receiving Party shall ensure that (i) any directors, officers, representatives, advisors and sub -contractors with whom the Receiving Party shares such information or who acquire knowledge of such information from or through the Receiving Party regard and treat such Confidential Information of the Disclosing Party as strictly confidential and wholly owned by either the Disclosing Party, and (ii) the Receiving Party shall not (and the Receiving Party shall ensure that any directors, officers, representatives, advisors and subcontractors with whom the Receiving Party shares such information or who acquire knowledge of such information from or through the Receiving Party do not) for any reason, in any fashion, either directly or indirectly, sell, lend, lease, distribute, license, give, transfer, assign, show, disclose, disseminate, or otherwise communicate any such Confidential Information to any third party, or misappropriate, reproduce, copy or use any such Confidential Information, in either case, for any purpose other than in accordance with this Agreement. (d) If the Receiving Party or any of its Representatives are requested or required to disclose any Confidential Information, including terms and conditions being negotiated, by law, regulation, the applicable rules of any national securities exchange or other market or reporting system, oral questions, interrogatories, requests for information or other documents in legal proceedings, subpoena, civil investigative demand or any other similar process, the Receiving Party shall provide the Disclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party has an opportunity to seek a protective order via Writ of Mandate or other appropriate remedy, or waive compliance with the provisions of this Agreement. (e) If the Disclosing Party waives compliance with the provisions of this Agreement with respect to a specific request or requirement, the Receiving Party and its Representatives shall disclose only that portion of the Confidential Information that is expressly 3 covered by such waiver and which is necessary to disclose in order to comply with such request or requirement. The Receiving Party and its Representatives shall cooperate in a reasonable manner with the Disclosing Party in attempting to preserve the confidentiality of the Confidential Information. (f) If (in the absence of a waiver by the Disclosing Party) the Disclosing Party has not secured a protective order or other appropriate remedy despite attempting to do so, and the Receiving Party or one of its Representatives is nonetheless then legally compelled to disclose any Confidential Information, the Receiving Party or such Representative may, without liability hereunder, disclose only that portion of the Confidential Information that is necessary to be disclosed. In the event that disclosure is made in accordance with this subsection, the Receiving Party shall exercise, and cause its Representatives to exercise, reasonable efforts to preserve the confidentiality of the Confidential Information, including obtaining reliable assurance at the sole expense of the Receiving Party that confidential treatment shall be accorded any Confidential Information sofurnished. 6. No Liability. Reliance, or Obligation. Except as set forth in any formal written agreement executed by and between the Parties, neither the Receiving Party nor any of its Representatives shall be entitled to rely on any statement, promise, agreement or understanding, whether written or oral, or any custom, usage of trade, course of dealing or conduct. In addition, each Party understands and acknowledges that neither the Disclosing Party nor any of its representatives, employees or agents makes any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and that neither the Disclosing Party nor any of its representatives, employees or agents shall have any liability whatsoever to the Receiving Party or to any of its Representatives relating to or resulting from the Confidential Information or any errors therein or omissions therefrom. 7. Remedies. The Receiving Party, in recognition that an irreparable injury may result to the Disclosing Party, if any provision of this Agreement is violated, agrees that upon any breach or threatened breach of any provision of this Agreement by the Receiving Party or any Representatives, that the City shall be entitled to seek an injunction or specific performance prohibiting such conduct or any other relief as may be permitted by law. 8. Return of Confidential Information. The Disclosing Party may at any time request that the Receiving Party promptly return to the Disclosing Party or destroy any or all documents or other materials containing Confidential Information of the Disclosing Party, and the Receiving Party shall immediately comply with any such request. Notwithstanding the return or destruction of the Confidential Information as contemplated by this subsection, the Receiving Party and its Representatives will continue to be bound by the terms of this Agreement with respect thereto, including all obligations of confidentiality. 9. Survival. The Receiving Party's obligations of confidentiality and non -circumvention under this Agreement shall survive the termination of thisAgreement. 10. General Provisions. (a) Entire Agreement. This Agreement contains the entire understanding between the Parties with respect to the Confidential Information and supersedes all prior communications, representations, understandings, or contracts, either written or oral, which purport to describe or embody the subject matter of this Agreement. This Agreement shall apply in lieu of and notwithstanding any specific legend or statement associated with any Confidential M Information transferred. (b) Governing Law and Jurisdiction. This Agreement shall be interpreted and construed pursuant to the laws of the State of California without regard to its conflicts of laws principles. The Receiving Party agrees that this Agreement may be enforced in the courts of the State of California and, by executing this Agreement, the Receiving Party submits to the jurisdiction of any federal or state court in California for the resolution of any dispute under this Agreement. (c) Waiver; Amendment. None of the terms or conditions of this Agreement may be amended or waived except in writing signed by the Parties. The Parties agree that no waiver, amendment, or modification of this Agreement shall be established by conduct, custom, or course of dealing. The failure by any Party at any time or times to require performance of any provision hereof will in no manner affect its right at a later time to enforce the same. (d) Assignment. This Agreement shall not be assignable without the prior written consent of the non -assigning Party, and such consent may not be unreasonably withheld. Any assignment attempted in violation of this paragraph shall be void. (e) Severability. If any term of this Agreement is found to be invalid by a court of competent jurisdiction then such term shall remain in force to the maximum extent permitted by law. All other terms shall remain in force unless that term is determined not to be severable from all other provisions of this Agreement by such court. (f) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original part, all of which together shall constitute one and the same instrument. (g) Successors and Assigns. The benefits of this Agreement shall inure to the respective successors and assigns of the Parties hereto, and the obligations and liabilities assumed in this Agreement by the Parties hereto shall be binding upon their respective successors and assigns. (h) Ownership Rights Not Created. The transfer of Confidential Information hereunder shall not be construed as granting a license of any kind or any right of ownership in the Confidential Information. (i) No Obligation to Disclose. Nothing in this Agreement shall obligate the City to disclose specific Confidential Information to the Receiving Party. Such disclosures shall be at the City's sole discretion. 5 0) The undersigned hereby represent and warrant that they are authorized by the party they represent to execute this Agreement. IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the Effective Date. ATTEST: PAMELA M. FARRIS Assistant City Clerk APPROVED AS TO FORM: JANICE D. MAGDICH, City Attorney CITY OF LODI, a municipal corporation STEPHEN SCHWABAUER City Manager MAGELLAN ADVISORS, LLC, a Florida Limited Liability Company By: By: John Honker President N FY 2019 Capital Improvement Plan 2019-2020 Project Title: Broadband Feasibility Study IMunis Project Code: GFCP-20010 Project # 110 Section I Description Project Length Priority An analysis of the business, technical, operational, financial, investment and regulatory aspects of deploying broadband services. The goal of this study is to provide an objective and industry -based study that informs Lodi of the opportunities and risks of expanding broadband in its community. This will include an analysis of available funding opportunities for underserved communities, as well as evaluation of potential business models including dark fiber leasing, municipal public/private partnership, and even broadband as a public service offering. Justification/factor driving project Broadband services in suburban and rural environments have not advanced equally in all jurisdictions and Lodi is looking to evaluate the funding opportunities and partnerships available to expand these services for Lodi residents and businesses. Additional Information A broadband feasibility study for Lodi will examine the opportunities and risks of providing broadband services to its citizens and businesses, focusing on the most achievable opportunities. To assist Lodi in its evaluation of broadband opportunities, a comprehensive study will allow Lodi to make informed decisions regarding the available business models and deployment options. Section 11 Estimated Project Costs Expenditure Prior Years FY 18119 FY 18119 FY 19120 FY 20121 FY 21122 FY 22123 FY 23124 Future Yrs Total Budget Estimate (5 Yrs) Contracts $ 84,800 $ 84,800 V $ - V $ - V Total Capital Costs $ 84,800 $ $ - $ - $ - $ 84,800 - - Section III Funding Sources/Methods of Financing Funding Source(s) Prior Years FY 18119 FY 18119 FY 19/20 FY 20/21 FY 21/22 FY 22123 FY 23124 Future Yrs Total Budget Estimate (5 Yrs) 431 - Capital Outlay/General $ 84,800 $ 84,800 V $ Total Project Financing - $ 84,800 $ - $ - $ - $ $ 84,800 Section IV Operating Budget Impact Operating Cost or Prior Years FY 18119 FY 18119 FY19/20 FY20/21 FY21/22 FY22/23 FY23/24 Future Yrs Total (savings) Budget Estimate (5 Yrs) Personnel • $ - Other Operating Costs • $ - Total Operating Impact $ - - $ $ - $ - $ - $ - $ - $ - RESOLUTION NO. 2020-41 A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT AND NON -DISCLOSURE AGREEMENT WITH MAGELLAN ADVISORS, LLC, OF DENVER, COLORADO, FOR BROADBAND FEASIBILITY STUDY SERVICES; AND FURTHER APPROPRIATING FUNDS WHEREAS, Lodi is working to better understand the feasibility and options to expand access to high-speed broadband throughout the city; and WHEREAS, utilities across the country are in a similar position to Lodi regarding evaluation of broadband services; and WHEREAS, broadband services in suburban and rural environments have not advanced equally in all jurisdictions, and Lodi is looking to evaluate the funding opportunities and partnerships available to expand these services for Lodi residents and businesses; and WHEREAS, a broadband feasibility study for Lodi will examine the opportunities and risks of providing broadband services to its citizens and businesses, focusing on the most achievable opportunities; and WHEREAS, to assist Lodi in its evaluation of broadband opportunities, Magellan Advisors, LLC, will provide a comprehensive study that will allow Lodi to make informed decisions regarding the available business models and deployment options; and WHEREAS, per Lodi Municipal Code, Section 3.20.075, engineering and financial service contracts are exempt from bidding requirements and shall be awarded on the basis of professional qualifications and experience, quality of service, past performance, and negotiated prices; and WHEREAS, over 400 utilities, municipalities, and cooperatives utilize Magellan's services to plan and deploy their networks nationwide; and Magellan has planned, engineered, and deployed over 50 municipal fiber, wireless, and hybrid networks with a total value of $1 billion dollars. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute a Professional Services Agreement and Non -Disclosure Agreement with Magellan Advisors, LLC, of Denver, Colorado, for broadband feasibility study services, in an amount not to exceed $84,800; and BE IT FURTHER RESOLVED that the City Council does hereby authorize the appropriation of $84,800 from the General Fund Capital Improvement Fund Balance to project GFCP-20010.Contracts; and BE IT FURTHER RESOLVED, pursuant to Section 6.3q of the City Council Protocol Manual (Res. No. 2019-223), the City Attorney is hereby authorized to make minor revisions to the above -referenced document(s) that do not alter the compensation or term, and to make clerical corrections as necessary. Dated: March 4, 2020 I hereby certify that Resolution No. 2020-41 was passed and adopted by the City Council of the City of Lodi in a regular/special joint meeting held on March 4, 2020 by the following vote: AYES: COUNCIL MEMBERS — Chandler, Mounce, Nakanishi, and Mayor Kuehne NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — None ABSTAIN: COUNCIL MEMBERS — None PAMELA M. FARRIS Assistant City Clerk 2020-41