Fiber Optic Cable Facilities Agreement Between City of Dubuque_MCC Iowa, LCc Copyrighted
July 17, 2017
City of Dubuque Consent Items # 23.
ITEM TITLE: Fiber Optic Cable Facilities Agreement Between City of
Dubuque and MCC Iowa, LLC
SUMMARY: City Manager recommending approval of the Fiber Optic
Cable Facilities Agreement between the City of Dubuque
and MCC Iowa LLC (Mediacom).
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Approve
ATTACHMENTS:
Description Type
Fiber Optic Cable Facilities Agreement with Mediacom- City Manager Memo
MVM Memo
Staff Memo Staff Memo
Fiber optic Cable Facilities Agreement Between City of Supporting Documentation
Dubuque and MCC Iowa LLC
Cover Letter from Mediacom LLC Supporting Documentation
THE CITY Dubuque
DUIB93tTE
MI-AmericaCity
Masterpiece on the Mississippi 11111.1
2009.2012.2013.2019
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Fiber Optic Cable Facilities Agreement with Mediacom Iowa LLC
DATE: July 11, 2017
The construction of the expanded interchange at Highways 151/61 and the new
Southwest Arterial will require Mediacom to vacate their fiber line which runs to the
Dubuque Regional Airport and undertake an expensive project to re-route through Key
West and directionally drill under the interchange to maintain their communication and
fiber connections. This includes connection of their I-Net system to users such as the
University of Dubuque Flight School.
The City of Dubuque has a major conduit recently completed that runs from the
Dubuque Technology Park to the Airport which safely passes just outside the area
needed for the expanded interchange. As part of the overall effort to reduce time and
costs, City of Dubuque staff reached out to Mediacom regarding the option of avoiding
the disruption and cost of an emergency re-route through use of a short-term lease of
capacity to service the Airport.
An internal analysis with the City Attorney and City Engineering confirmed the legal and
physical ability to assist connectivity to the Airport. Analysis with Mediacom confirmed
that a short-term capacity sharing option would be the quickest and lowest cost method
to maintain Airport connectivity.
Information Services Manager Chris Kohlmann, Traffic Engineer Dave Ness and
Greater Dubuque Development Corporation Sustainable Innovations Consultant David
Lyons recommend City Council approval of the Fiber Optic Cable Facilities Agreement
between the City of Dubuque and MCC Iowa LLC (Mediacom).
I concur with the recommendation and respectfully request Mayor and City Council
approval. p
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Crenna Brumwell, City Attorney
Teri Goodmann, Assistant City Manager
Chris Kohlmann, Information Services Manager
Dave ness Traffic Engineer
David Lyons, Sustainable Innovations Consultant, GDDC
2
THE CITY OF Dubuque
All•Amedca 0v
"U111311UQUE
Masterpiece on the Mississippi
2007+2072+2013•2017
TO: Michael C. Van Milligen, City Manager
FROM: Chris Kohimann, Information Services Manager
Dave Ness, Traffic Engineer
David Lyons, Sustainable Innovations Consultant, GDDC
DATE: July 6, 2017
RE: Fiber Optic Cable Facilities Agreement with Mediacom Iowa LLC
INTRODUCTION
The City of Dubuque has embarked upon an aggressive program to accelerate the
deployment of broadband internet and data services in Dubuque. That program,
focusing on public/private partnerships to reduce time and costs, has been successful in
accelerating deployment of fiber, reducing City expenses and bringing new service
providers and competition to the community. This request aligns with that program.
BACKGROUND
The construction of the expanded interchange at Highways 151/61 and the new South-
West Arterial will require Mediacom to vacate their fiber line which runs to the Dubuque
Regional Airport and undertake an expensive project to re-route through Key West and
directionally drill under the interchange to maintain their communication and fiber
connections. This includes connection of their I-Net system to users such as the
University of Dubuque Flight School.
The City of Dubuque has a major conduit recently completed that runs from the
Dubuque Technology Park to the Airport which safely passes just outside the area
needed for the expanded interchange. As part of our overall effort to reduce time and
costs, we reached out to Mediacom regarding the option of avoiding the disruption and
cost of an emergency re-route through use of a short-term lease of capacity to service
the Airport.
Our internal analysis with the City Attorney and City Engineering confirmed our legal
and physical ability to assist connectivity to the Airport. Analysis with Mediacom
confirmed that a short-term capacity sharing option would be the quickest and lowest
cost method to maintain Airport connectivity.
PROPOSAL
We have developed the attached Fiber Optic Cable Facilities Agreement to facilitate
continued Airport connectivity. The Agreement provides Mediacom with access to a
portion of the City's available fiber to serve the Dubuque Regional Airport for a period
not to exceed three years. Mediacom would compensate the City with a one-time
payment of$1.08 per lineal foot for an estimated 15,406 feet of fiber, share in any
maintenance costs over the three-year period and adhere to all City requirements for
use and access to the fiber. City staff has reviewed and determined that the Mediacom
use of this limited capacity for this time period would create no concerns for City fiber
needs.
BUDGETIMPACT
There would be a positive revenue impact of approximately $16,638 dollars and no cost
to the City for implementing this agreement.
RECOMMENDATION
This agreement would seem to fit within the overall goals set for the City's broadband
acceleration initiative, including:
- Reducing the costs for private broadband investments in, Dubuque
- Generating increased connectivity and access within the community
- Generating income for the City to maintain and expand its fiber infrastructure
- Creating increasingly secure and redundant fiber networks within the
community.
We would recommend approval of the Fiber Optic Cable Facilities Agreement with
Mediacom Iowa LLC.
ACTION REQUESTED
Please review the memo and attachments and let us know of any questions. We would
respectfully request your approval and would ask that you forward this information to the
Dubuque City Council with a recommendation for approval of the Fiber Optic Cable
Facilities Agreement with Mediacom Iowa LLC.
Thank you.
CC: Crenna Brumwell, City Attorney
Barry Lindahl, Senior Counsel
2
Medi'ac'om
Cecilia O'Brien,
Executive Associate
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
June 30, 2017
Mr. Craig Nowack
City of Dubuque
City Hall Annex
1300 Main Street
Dubuque IA 52001
Dear Mr. Nowack:
I am enclosing two original Fiber Optic Cable Facilities agreements for signature by the City of
Dubuque. Upon signature of the documents, keep one set for your records and forward the
second fully executed original document,back to me using the postage paid envelope to the
address listed below:
Cecilia O'Brien
Mediacom
3900 26�b Avenue
Moline, IL 61265
Mediacom appreciates our positive relationship and wishes to continue this relationship in the
future. Feel free to contact me at 309-743-4101 with any questions.
Respectfully,
1 ,11-2
Cecilia O'Brien
Enclosures
Mediacom — MCC Iowa LLC
3900 261h Avenue • Moline, IL 61265 9 309-743-4101 • Fax 309-797-2414
FIBER OPTIC CABLE FACILITIES AGREEMENT
BETWEEN
THE CITY OF DUBUQUE IOWA
AND
MCC IOWA LLC
THIS AGREEMENT is made on this LP -1'6 , day of , 2017 by
and between the City of Dubuque ("City") and MCC Iowa LL , a Claware limited
liability company ("Mediacom")
In consideration of the mutual covenants contained in this Agreement, the
sufficiency of which is acknowledged, the Parties agree as follows:
SECTION 1. IDENTITY OF THE PARTIES.
1.1 City is a political subdivision of the State of Iowa incorporated in accordance with
relevant provisions of Iowa law. City's address for purposes of this Agreement is City
Hall, 50 W. 13th Street, Dubuque, IA 52001.
1.2 Mediacom's address for purposes of this Agreement is 3900 26th Avenue,
Moline, IL 61265.
SECTION 2. DEFINITIONS. The following words shall have the meanings set forth
below. Words in the singular shall be held to include the plural and vice versa.
"Agreement" means this document including the product, equipment and services
referenced within this document.
"Designated Fiber" shall mean 12 strands of fiber the location of which is generally
described as running from the City vault on the south-east corner of Hwy 61/151 and
Lake Eleanor Road to the Operations and Maintenance Building on the grounds of the
Dubuque Regional Airport and an additional 2 (two) strands of fiber running from the
Operations and Maintenance Building to the University of Dubuque Flight Training
Center.
"Fiber" means a glass strand or strands which is/are protected by a color -coded buffer
tube and which is/are used to transmit a communication signal along the glass strand in
the form of pulses of light.
"Communications Equipment" means facilities or equipment provided, owned,
managed or installed by City in, around or on the Designated Fiber,
"City" means the City of Dubuque, Iowa.
"Mediacom" means MCC Iowa LLC.
062317ba1
"Approved Splice" means any connection to the designated fiber which location and
method has been reviewed and pre -approved in writing by City.
SECTION 3. PARTIES' OBLIGATIONS.
3.1 City shall provide Mediacom Iowa LLC access and permission to use the
designated fiber, as set out in Attachment A, at a one-time cost of $1.08 cents per linear
foot. Access shall only be by approved splice as defined in section 2 F.
3.2 Mediacom shall bear the costs of any approved splice and costs of reconfiguring
any of City's fiber sheath as needed.
3.3 City or City's authorized contractor shall perform all maintenance on the Fiber,
including any Fiber repairs, Fiber restoration, and Fiber relocation that becomes
necessary during the term of this Agreement. If City incurs any costs associated with
Fiber repairs, Fiber restoration, or Fiber relocation, Mediacom shall reimburse City for
eight percent (8%) of the cost. Mediacom's share of the cost shall be determined based
on the proportionate number of Fibers in the sheath that is used by Mediacom. If a third
party is responsible for the Fiber cut and City is unable to collect the cost of the repair
from the third party, Mediacom shall reimburse the City for Mediacom's share of the
cost of the repair as described above.
3.4 Installation of Mediacom's Equipment. If Mediacom or a contractor operating
under the direction of Mediacom performs any splicing, accesses splice cases, or
performs any other procedure that could accidentally disrupt the passage of light in the
Fibers or otherwise directly impact City's Fibers, the activity must be preplanned and
approved by City five (5) working days in advance and performed during established
City Maintenance Windows (normally 8 AM —4 PM). Mediacom shall call City's
Coordinator at 563-589-4181 to schedule all maintenance windows.
3.5 Each party will notify the other if it detects any problems that may interrupt
service. Mediacom's contact is 800-308-6715. City's Coordinator is Craig Nowak,
(563) 589-4181; cnowack@cityofdubuque.org.
SECTION 4. TERM. The initial term of this Agreement shall be three (3) years from
the Acceptance Date (the "Initial Term") unless terminated earlier in accordance with the
Termination section of this Agreement. Upon the expiration of the Initial Term, the
Agreement may be extended for an additional three (3) year period upon written request
by Mediacom not less than 90 days prior to the expiration of the current Term of this
Agreement and approval by City. Any extension shall require an additional one-time
payment as set out in section 3 A of this Agreement, unless waived by City.
SECTION 5. EXCLUSION OF WARRANTIES. City makes no warranty to Mediacom
or any other entity, whether express, implied or statutory, as to the installation,
description, quality, merchantability, completeness, useful life, future economic viability,
or fitness for any particular purpose of the designated fiber, any fibers, or the system, or
as to any other matter, all of which warranties are hereby expressly excluded and
disclaimed.
SECTION 6. INDEMNIFICATION.
6.1 Mediacom shall indemnify and hold City harmless from and against any and all
costs, expenses, losses, claims, damages, liabilities, settlements and judgments arising
directly out of the negligence or wrongful acts or omissions of any officer, agent, or
employee of Mediacom in the performance of this Agreement.
6.2 Nothing contained herein shall operate as a limitation on the right of either party
hereto to bring an action for damages against any third party, including indirect, special
or consequential damages, based on any acts or omissions of such third party as such
acts or omissions may affect the construction, operation or use of the Designated Fiber;
provided, however, that each party hereto shall assign such rights or claims, execute
such documents and do whatever else may be reasonably necessary to enable the
other party to pursue any such action against such third party.
SECTION 7. LIMITATION OF LIABILITY. Not withstanding any provision of this
Agreement to the contrary, in no event shall either party be liable to the other party for
any special, incidental, indirect, punitive or consequential damages, whether
foreseeable or not, arising out of, or in connection with, transmission interruptions or
problems, or any interruption or degradation of service, including, but not limited to,
damage or loss of property or equipment, loss of profits or revenue, cost of capital, cost
of replacement services, or claims of customers, whether occasioned by any
construction, reconstruction, relocation, repair or maintenance performed by, or failed to
be performed by, the other party or any other cause whatsoever, including, without
limitation, for breach of contract or breach of warranty all claims for which damages are
hereby specifically waived.
SECTION 8. THE CITY'S PROPERTY. Except as provided for in Section 3(D),
Mediacom shall not, and shall not permit others, to rearrange, disconnect, remove, and
attempt to repair, or otherwise tamper with any City's property without the prior written
consent of City.
SECTION 9. MEDIACOM EQUIPMENT. Mediacom shall have sole responsibility for
installation, testing and operation of Mediacom equipment. City shall not be responsible
for the operation or maintenance of any Mediacom equipment. City shall not be
responsible for the transmission or reception of communications or signals by
Mediacom's equipment or for the quality of, or defects in, such transmission or
reception.
SECTION 10. TERMINATION. Either party may terminate this Agreement for cause
if the other party breaches a material obligation of this Agreement and fails to correct
the breach within 30 days of receiving written notice of the breach from the non -
breaching party.
3
SECTION 11. CONTRACT ADMINISTRATION.
11.1 Amendments. This Agreement may be amended in writing from time to time by
mutual consent of the Parties in the same manner in which this Agreement was
approved
11.2 Third Party Beneficiaries. There are no third party beneficiaries to this
Agreement. This Agreement is intended only to benefit Mediacom and the City.
11.3 Choice of Law and Forum. The laws of the State of Iowa shall govern and
determine all matters arising out of or in connection with this Agreement without regard
to the choice of law provisions of Iowa law. In the event any judicial proceeding is
commenced in connection with this Agreement, the exclusive jurisdiction for the
proceeding shall be brought in the District Court of Iowa for Dubuque County.
11.4 Integration. This Agreement, including all the documents incorporated by
reference, represents the entire Agreement between the parties and neither party is
relying on any representation that may have been made which is not included in this
Agreement. The parties agree that if a Schedule, Addendum, Rider or Exhibit or other
document is attached hereto by the parties, and referred to herein, then the same shall
be deemed incorporated herein by reference.
11.5 Not a Joint Venture. Nothing in this Agreement shall be construed as creating or
constituting the relationship of a partnership, joint venture, (or other association of any
kind or agent/principal relationship) between the parties hereto. No party, unless
otherwise specifically provided for herein, has the authority to enter into any agreement
or create an obligation or liability on behalf of, in the name of, or binding upon another
party to this Agreement.
11.6 Waiver. Any breach or default by either party shall not be waived or released
other than by writing signed by the other party. Failure by either party at any time to
require performance by the other party or to claim a breach of any provision of the
Agreement shall not be construed as affecting any subsequent breach or the right to
require performance with respect thereto or to claim a breach with respect thereto.
11.7 Notices. Any and all notices, designations, consents, offers, acceptances or any
other communication provided for herein shall be given in writing by registered or
certified mail, return receipt requested, or by receipted hand deliver, by Federal
Express, courier, or other similar and reliable carrier which shall be addressed to each
party as set forth as follows:
4
TO CITY:
TO MCC IOWA LLC:
City of Dubuque, Iowa
Craig Nowack, Cable Television Coordinator
City Hall Annex
1300 Main Street
Dubuque, IA 52001
Mediacom Engineering
3900 26th Avenue
Moline, IL 61265
Each such notice shall be deemed to have been provided at the earliest of the following:
(a) at the time it is actually received; or (b) in the case of overnight hand delivery courier
or services such as Federal Express with guaranteed next day delivery, within one day;
or (c) in the case of registered U.S. Mail, within five (5) days. From time to time, the
Parties may change the name and address of a party designated to receive notice.
Such change of the designated person shall be in writing to the other Party and as
provided herein.
11.8 Cumulative Rights. The various rights, powers, options, elections and remedies
of either party, provided in this Agreement, shall be construed as cumulative and no one
of them is exclusive of the others or exclusive of any rights, remedies or priorities
allowed either party by law. Nothing in this Agreement shall be construed as affecting,
impairing or limiting the equitable or legal remedies to which either party may be entitled
as a result of any breach of this Agreement.
11.9 Severabilitv. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the invalid portion shall be
severed from this Agreement. Such a determination shall not affect the validity or
enforceability of any other part or provision of this Agreement.
11.10 Obligations beyond Agreement Term. This Agreement shall remain in full force
and effect to the end of the specified term or until terminated or canceled pursuant to
this Agreement. All obligations of the parties incurred or existing under this Agreement
as of the date of expiration, termination or cancellation will survive the expiration,
termination or cancellation of this Agreement.
11.11 Authorization. Each party to this Agreement represents and warrants to the other
that it has the right, power and authority to enter into and perform its obligations under
this Agreement and that it has taken all requisite action (corporate, statutory, or
otherwise) to approve execution, delivery and performance of this Agreement. This
Agreement constitutes a legal, valid and binding obligation upon the parties in
accordance with its terms.
5
11.12 Successors in Interest. All the terms, provisions, and conditions of the Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors, assigns, and legal representatives.
11.13 Counterparts and Facsimile Signatures. The parties agree that this Agreement
has been or may be executed in several counterparts, each of which shall be deemed
an original and all such counterparts shall together constitute one and the same
instrument. The parties further agree that the signatures on this Agreement or any
amendment or schedule may be manual or a facsimile signature of the person
authorized to sign the appropriate document. All authorized facsimile signatures shall
have the same force and effect as if manually signed.
11.14 Taxes. City is a tax-exempt entity and no payment will be made for any taxes for
any purpose by City.
11.15 Further Assurances and Corrective Instruments. Mediacom Iowa LLC agrees
that it will, from time to time, execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, such supplements hereto and such further
instruments as may reasonably be required for carrying out the expressed intention of
this Agreement.
11.16 Assignment and Delegation. This Agreement may not be assigned, transferred
or conveyed in whole or in part without the prior written consent of the other party, which
shall not be unduly withheld.
11.17 Insurance. Mediacom Iowa LLC shall at all times during the performance of this
Agreement maintain insurance as set forth in the attached Insurance Schedule.
SECTION 13. EXECUTION.
IN WITNESS WHEREOF, in consideration of the mutual covenants set forth
above and for other good and valuable consideration, the receipt, adequacy and legal
sufficiency of which are hereby acknowledged, the parties have entered into the above
Agreement and have caused their duly authorized representatives to execute this
Agreement.
Dated:
7/17/!?
CITY OF DUBUQUE, IOWA
By:
Michael . Van Milligen
City Manager
6
Dated:
/-f/dey7
MCC IOWA LLC
By:
Todd Curtis,
Group Vice President