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Proposed License Agreement with ImOn CommunicationsLICENSE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND IMON COMMUNICATIONS. LLC This License Agreement (the "Agreement") dated for reference purposes thpay of r , 20-y and between the City of Dubuque, Iowa, (the "City") and ImOn C mmunications, LLC, located at 101 3`d Avenue, SW, Cedar Rapids, Iowa 52404 ("ImOn"). The City and ImOn may be collectively referred to as the "Parties," or individually as a "Party." This Agreement will take effect on the date of the last signature of the Parties. WHEREAS, ImOn leases space in a building owned by the Dubuque Museum of Art located at 332 W. 8th Street in Dubuque, Iowa, (the "Building") that includes a secured area that houses certain ImOn telecommunications infrastructure assets (the "Facility"); and WHEREAS, the City desires to use some rack space located within this Facility to reduce its operating costs, thereby providing improved telecommunications services to the citizens of Dubuque, and ImOn agrees to grant to the City a license to access the Facility and use such rack space, according to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual promises herein, and other good consideration, the adequacy of which is acknowledged, the Parties agree as follows: 1. SERVICES and ACCESS. During the term and any renewal of this Agreement (defined in Section 5), ImOn shall provide certain Services and access to the ImOn Facility as set forth in Exhibit 1, which is attached to and incorporated by reference into this Agreement. 2. PAYMENT. The City agrees to pay the applicable charges set forth in Exhibit 1. ImOn will send a monthly invoice for all applicable charges and taxes, and the City shall timely pay such invoice in full by the Due Date. If the City fails to timely pay such invoice, ImOn may, in its sole discretion, do one or more of the following: discontinue Services and/or terminate the City's access to the Facility. Any invoice amount that remains unpaid after fifteen (15) days following the payment Due Date shall be subject to a late payment charge equal to the lesser of one and one-half percent (1.5%) per month, or the maximum amount allowed by law, which will accumulate monthly until all amounts are paid in full. 3. EQUIPMENT AND CROSS -CONNECTIONS. a. The City shall have the option of providing its own hardware, software and ancillary equipment necessary to provide its services, including servers, switches, routers, telecommunications and/or other data equipment and cabling (collectively, "City Equipment"), provided that such City Equipment complies with ImOn's policies and practices for installation, weight, power, security and heat requirements. The City shall also provide, upon request, 080520ba1 information regarding its systems, rack/cabinet layout, network equipment, and cross -connection diagrams. The City shall be required to either use ImOn for the installation of the City Equipment or obtain ImOn's prior approval of the City's choice of contractors and/or staff to complete the installation. It is specifically understood that compliance with hardware warranty and software license requirements are the sole responsibility of the City. It is understood and agreed that the City shall not be entitled to make any construction changes or material alterations to the ImOn Facility, including any cabling or power supplies for the City Equipment, without obtaining ImOn's prior written approval. ImOn reserves the right to perfoirn and manage any construction or material alterations within its Facility ("Co -location Area") at ImOn's customary rates for such Services. b. Upon obtaining ImOn's prior written approval, the City may cross -connect its equipment within in its cabinets to equipment located in different cabinets so long as these cabinets are owned by the City or provided to the City as agreed to in writing. Failure to obtain ImOn's prior approval of any cross -connection shall constitute a material breach of this Agreement, and ImOn may pursue any legal or equitable remedy available to it, including, without limitation, either the immediate removal of such impermissible cross -connection or the immediate termination or suspension of the rights granted in this Agreement without any liability to ImOn. ImOn shall control and direct any and all installation and other work relating to the establishment of the cross- connections. The City shall compensate ImOn for the cross - connection and interconnection products and services at ImOn's customary rates. 4. CONFIDENTIALITY. a. Scope: Both Parties acknowledge that in the negotiation and performances of this Agreement and the obligations of the Parties, each may receive Confidential or Proprietary Information of the other. "Confidential or Proprietary Information" is defined as all information, materials, data and documents, in whatever form, relating to either party which is not generally available to the general public which has been made available to the other and specifically marked or verbally identified in the case of verbal information as "confidential" or "proprietary" by either Party. The foregoing obligations shall apply to verbal information as well as specific portions of the information that are disclosed in writing or other tangible form and marked to indicate the confidential nature thereof. Notwithstanding the foregoing, "Confidential or Proprietary Information" does not include any information which: i. Was known to the receiving party prior to receipt under this Agreement, as demonstrated by the receiving party's records; or ii. Was publicly known or available prior to receipt under this Agreement, or later becomes publicly known or available through no fault of the receiving party; or 080520ba 1 iii. Has been or is disclosed, without restrictions on disclosure, to the receiving party by a third party having the legal right to disclose the same or to a third party by the disclosing party; or iv. Is independently developed by an employee, consultant, or agent of the receiving party without access to the information as received under this Agreement; or v. The receiving party is obligated to produce as a result of a court order or other legal process, provided that the disclosing party has been given notice thereof and an opportunity to waive its rights or to seek a protective order or other appropriate remedy; or vi. Is determined by the City Attorney to be a non -confidential public record under Iowa law. b. Covenants of Confidentiality and Nondisclosure: Upon written request of a disclosing party, the receiving party shall return all information disclosed in written or tangible form, and the receiving party shall destroy all their copies, excerpts or notes made by it which contain any portions of the infoiivation unless otherwise provided for by the Parties. All rights and responsibilities under this Section shall survive teiiiiination of this Agreement for a period of two (2) years. The Parties agree to use commercially reasonable efforts to maintain the confidentiality of such material, but in no event lesser than was used by the receiving party with its own Confidential or Proprietary Information. Except as required by this Agreement or to perform this Agreement, both Parties will not (i) make any use of such material that is Confidential or Proprietary Information or that could constitute competition with the disclosing party in the State of Iowa, nor (ii) disclose such information to any third party without prior written authorization from the disclosing party. Each party shall (i) limit dissemination of the information received by it to those of its employees, agents and consultants whose duties reasonably justify the need for access to such information and who are subject to obligations of secrecy and limited use commensurate in scope with this Agreement, and (ii) take appropriate measures to assure that its employees, agents and consultants who receive or have access to such information, as contemplated above, observe and comply with all of the terms and provisions of, and each such party's obligations under, this Agreement. No other right or license to use the information is granted under this Agreement. c. Acknowledgement: The City agrees that ImOn's methodology, service processes, and pricing is the sole and exclusive property of ImOn, and shall treat them as Confidential and Proprietary Information. d. Notwithstanding the foregoing, the City shall notify ImOn in writing of any public request for disclosure of ImOn's information within five (5) business days after such request and Imo shall have ten (10) business days to take such action as ImOn deems appropriate to prevent such disclosure. In the event ImOn fails to take any such action, the City shall be authorized to disclose the requested information without any liability of any kind to ImOn. 5. TERM and RENEWAL and TERMINATION. This Term and any subsequent renewal(s) 080520ba 1 of this Agreement shall be mutually agreed to by the Parties as set forth in Exhibit 1. Either Party may terminate this Agreement upon the material breach by a Party and, upon written notice of such alleged breach, a failure to cure such material defect within 15 days of receipt of such breach notice. 6. DEFAULT; REMEDIES UPON DEFAULT. The following non-exclusive list shall constitute some of the events of default; the City fails to pay amounts owed to ImOn when due, or the City is in material breach of this or any other Agreement with ImOn. In addition to any other rights granted to either Party herein, in the event the City fails to pay amounts owed to ImOn, or otherwise perform its obligations under this Agreement, ImOn shall have the right, in its discretion, to suspend, or terminate, services pursuant to this Agreement and such suspension will not be considered a default. Should the City breach the terms of this Agreement, resulting in termination, the City shall remain obligated to pay ImOn for monthly recurring charges set forth in Exhibit 1 for the remainder of the Term of the Agreement, and the Parties agree that the City's continued obligation to ImOn for the recurring charges constitutes fair and adequate liquidated damages for the City's breach of the Agreement, in addition to any other legal or equitable remedies available to ImOn. Recurring fees described in Exhibit 1 shall continue to accrue and be payable by the City, notwithstanding ImOn's exercise of its right to terminate or suspend Services. In addition to the foregoing, and without limiting any other remedies available to ImOn, in the event of the City's failure to make timely payment for fees and charges pursuant to the terms of this Agreement, ImOn shall be entitled to seek all appropriate legal action(s) to resolve any unpaid amounts owed to ImOn. ImOn may also proceed at law or in equity with any remedy provided by this Agreement or by law for the recovery of charges described in Exhibit 1 or for termination of this Agreement because of the City's default in its performance 7. EMINENT DOMAIN OR DAMAGE TO THE IMON FACILITY In the event of a taking of all or any portion of the ImOn Facility by eminent domain, or similar governmental power, so as to prevent ImOn's performance of this Agreement, then this Agreement may be deemed terminated by ImOn in its sole and absolute discretion as of the date of such taking, and the fees and charges paid or to be paid by the City for future services shall be adjusted accordingly. If the building in which the ImOn Facility is located is damaged by fire or other casualty, then ImOn shall give notice to the City of such damage as quickly as practical under the circumstances and if ImOn is unable to provide Services as a result of the damage, which determination shall be made in ImOn's sole and absolute discretion, then this Agreement may be terminated by ImOn as of the date of such determination, and the fees and charges paid or to be paid by the City for future Services shall be adjusted accordingly. Under no circumstances shall ImOn have any obligation to repair or replace equipment provided by the City. If ImOn is unable to complete the repair of its Facility following fire or other damage within a reasonable period of time under the circumstances, the City shall have the option to terminate this Agreement, which option shall be the sole remedy available to the City against ImOn. The City shall have no claim against ImOn for the value of the unexpired term of this Agreement or any 080520ba1 claim or right to any portion of the amount that might be awarded as a result of such condemnation. 8. LIMITED WARRANTI II,S AND REPRESENTATIONS. ImOn warrants and represents that it will deliver its Services in a professional and reasonable manner, but MAKES NO OTHER WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, including any warranties of MERCHANTABILITY, FITNESS FORA PARTICULAR PURPOSE, EFFORT TO ACHIEVE PURPOSE, QUALITY, ACCURACY, NON -INFRINGEMENT, QUIET ENJOYMENT OR TITLE. In no event will ImOn, or its officers, directors, employees or affiliates, or any entity contracting with ImOn for facilities, equipment, or services used by the City under this Agreement, collectively or individually, be liable to the City for special or consequential, or similarly designated damages, or loss of profits in contract, whether or not the possibility of such damages has been disclosed in advance or could have been reasonably foreseen by ImOn or the City, 9. ACCEPTABLE USE. The City is required to review and adhere to any applicable Acceptable Use Policy of ImOn for the applicable Services. ImOn reserves the right to amend the Acceptable Use Policy for operational performance, security, safety, and other applicable requirements. 10. INDEMNIFICATION. a. The City shall indemnify, defend and hold ImOn and all of its affiliates, agents, consultants, employees, subcontractors, shareholders, directors and officers harmless from and against any and all actions, claims, court costs, damages, demands, expenses, liabilities, losses or penalties, including reasonable attorney fees (collectively "Claims") arising out of, regarding or relating directly or indirectly to, (a) Claims by ImOn's customers or clients resulting from negligence or intentional conduct caused by the City in breach of this Agreement, or (b) Claims for personal injuries or property damage which result from any negligence or intentional conduct of the City. b. ImOn shall indemnity, defend and hold harmless the City, its officers, and employees from and against any and all claims of any kind arising out of or related to ImOn's negligence in the performance of this Agreement. 11. INSURANCE. a. During the Term of this Agreement, ImOn shall maintain and provide to City proof of: (i) Comprehensive general liability insurance with a combined single limit per occurrence of not less than One Million Dollars ($1 ,000,000.00) per occurrence for bodily injury, including death, and property damage liability, including coverage extensions for blanket contractual liability, personal injury liability and products and completed operations liability and (ii) "All risk" property insurance covering all of ImOn's equipment and any other property of ImOn located in 080520ba1 the Facility. ImOn shall look solely to its own insurance in the event of any damage or loss to such equipment or other property. The City and its officers, directors, employees and affiliates shall have no liability for losses to any ImOn Equipment, and ImOn acknowledges the same. b. Any equipment or other property kept or maintained by the City at ImOn's Facility shall be insured solely by the City for the full replacement value of such equipment or property and shall look solely to its own insurance in the event of any damage or loss to such equipment or other property. ImOn and its officers, directors, employees and affiliates shall have no liability for losses to any City Equipment, and the City acknowledges the same. c. ImOn acknowledges that the City is a member of the Iowa Communities Assurance Pool. The City shall provide ImOn evidence of its coverages and as long as the City continues such membership, ImOn acknowledges that the coverages provided by such membership satisfy the requirements of this section in all respects. 12. NO REAL PROPERTY INTEREST. The City acknowledges that it has only a license to occupy a portion of the ImOn Facility and that it has not been granted any real property interest in or to such portion or facilities, or the building in which the Facility is located. The City further agrees that neither this Agreement nor any interest or right created herein shall be assigned, mortgaged, subleased, sublicensed, encumbered or otherwise transferred by the City except as expressly permitted herein. The City further agrees that no part of the ImOn Facility may be used or occupied by any entity (including any affiliated entity) other than the City without ImOn's advance written consent. Violations of this Section shall be a material breach of this Agreement. 13. GENERAL PROVISIONS. a. Force Majeure. ImOn shall not be responsible for failure or delay in delivery of any Service, if caused by an act of God or public enemy, war, terrorism, government acts, regulations or orders, fire, flood, embargo, quarantine, epidemic, labor stoppages or other disruptions, accident, unusually severe weather or other cause similar or dissimilar, beyond the control of the defaulting party. b. Independent Contractors, Assignment & Delegation. The Parties are independent contractors under this Agreement. Except as expressly set forth herein, neither Party has the authority to, and each Party agrees that it shall not, directly or indirectly contract any obligations of any kind in the name of or chargeable against the other Party without such Party's prior written consent. Neither Party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party hereto, which consent shall not be unreasonably withheld, delayed or conditioned. It shall not be unreasonable for either Party to withhold, delay or condition consent to any assignment if (a) either Party is in breach or threatened breach of this Agreement, (b) the proposed assignor will not agree in a separate writing to the terms of this Agreement, or (c) the proposed assignor is not at least as 080520ba1 equally qualified and experienced as either the City or ImOn as the case may be, in the sole opinion of the person from whom consent is required. Nothing in this Agreement is to be construed as an assignment or grant of any right, title or interest in any trademark, service mark, copyright, design or trade dress, trade name, patent right or other intellectual or industrial property right owned by either Party. c. Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made as of the date delivered, if delivered personally, three business days after being mailed by registered or certified mail (postage prepaid, return receipt requested) or one business day after being sent by overnight courier (providing proof of delivery), to the Parties at the addresses listed in this Agreement. d. Entire Agreement, Amendment and Waiver. This Agreement, together with the attached Exhibit(s), contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment by both Parties, or in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Headings are for convenience only and are not intended to be substantive provisions of the Agreement. e. Law and Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Iowa applicable to agreements made and to be performed wholly within such jurisdiction without regard to conflicts of laws principles. Each of the Parties hereby irrevocably and unconditionally consents to submit to the jurisdiction of the courts of the State of Iowa and of the United States of America, in each case located in the State of Iowa, County of Dubuque, for any litigation arising out of or relating to this Agreement and the transactions contemplated hereby, and further agrees that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. f. Attorney's Fees and Costs. In the event any Party to this Agreement takes legal action to enforce the terms of this Agreement, any Party determined to be in violation of this Agreement agrees to pay the reasonable attorney fees and other costs and expenses incurred by the Party not in violation of this Agreement. g. Dispute Resolution. The Parties will make good -faith efforts to resolve any dispute between the Parties. Upon written notice of such dispute, each Party will appoint a senior level executive to meet and resolve the dispute. If the dispute is not resolved within ten (10) business days after such written notice, or a longer period as agreed to in writing by the Parties, either 080520ba City of Dubuque, Iowa J By: l CAL /4 Name: Roil D. Buol Title: Mayor Date: September 21, 2020 ImOn Communications, LLC By: Name: Patrice Carroll Title: President and CEO Date: 080520ba1 EXHIBIT 1— CO -LOCATION TERMS Co -location Address: 332 West 8t1i Street, Dubuque, Iowa 52001 Scope of Services provided by ImOn: • Co -location facilities in an appropriate, secure and environmentally -controlled area • Provider space for two racks provided by City • Standard power is AC at 120 volts with 20 amps • Power is not UPS -protected and includes a generator backup Additional protected (or non -protected power) is available upon request and will incur additional charges Will provide System power -down and power -up service at request of the City subject to the applicable labor rate. Escorted access to City Equipment for service by the City's authorized representatives is subject to the applicable labor rate as follows: • Non -emergency access upon five (5) business days' notice available during normal business hours • Emergency access as soon as reasonably possible upon notice and notice may be provided 7 x 24 to ImOn. The City of Dubuque should contact ImOn at 563-239-9150. Additional technical services provided by ImOn outside the scope of these Services described above are available to the City upon request, and as mutually agreed upon by the Parties to this Agreement. The City shall be responsible for: • All City hardware and software • Installation, maintenance and support of all City hardware and software • Hardware and software upgrades as needed • Monitoring and maintenance system resources for adequate operation Term for Co -Location Site: Five years commencing on October 1, 2020 080520ba 1 Renewal Term: Following expiration of the initial Term, this Agreement shall automatically renew for an additional five years, unless either Party provides 180 day written notice prior to the then termination date or terminates this Agreement in accordance with the other teitus and conditions set forth herein. Charges: • Recurring Charge: $_1300_ per month • Non -recurring Charges: $_500_ for applicable initial electrician charges • Monthly recurring and non -recurring charges include co -location space, facilities, and standard power provided by ImOn as defined and agreed to with the City. • Cross -connections to third parties permitted only upon written ImOn consent. • If granted, then the following cross -connection charge applies: $_200_ per month per facility for fiber cross -connects Labor Rates: Business Hours Monday -Friday 8 am — 5 pm Minimum 1 hour Hourly Rate $12Qy..00 Holidays and all other non -business hours. $ 80.00 Minimum 2 hours Authorized representatives of each Party have executed this Exhibit 1. 080520ba1 Copyrighted September 21, 2020 City of Dubuque Consent Items # 16. City Council Meeting ITEM TITLE: Proposed License Agreement between City of Dubuque and ImOn Communications, LLC SUM MARY: City Manager recommending approval of a License Agreement with I mOn Communications to co-locate critical City technology infrastructure at the I mOn Communication Network Operations Center. SUGGESTED Suggested Disposition: Receive and File;Approve DISPOSITION: ATTACHMENTS: Description Type ImOn Communications LicenseAgreement-MVM City Manager Memo Memo Proposed License Agreement between City of Dubuque and ImOn Communications, LLC Memo to Staff Memo the City Manager ImOn Co-location Agreement Supporting Documentation Dubuque THE CITY OF � ui-Aseria cih DuB E , . � . , � II � Maste iece on tj2e Mississi i zoo�•zoiz•zois YP pp zoi�*zoi9 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Proposed License Agreement Between City of Dubuque and ImOn Communications, LLC DATE: September 15, 2020 The City of Dubuque's technology assets and services have grown significantly, as has the City's reliance on them for day-to-day operations. Presently the majority of those assets are dependent upon hardware located in the basement of the City Hall Annex, a location neither designed for such a task nor adequately resilient for assuring operational capacity and security as the City system continues to grow. In researching options City staff determined that the traditional approach of a purpose-built facility would entail a cost of hundreds of thousands of dollars to the City budget, prompting staff to explore alternatives. Staff reached out to the multiple Telecommunications Companies and Internet Service Providers that had entered into Master Shared Service Agreements with the City to determine if there would be a less costly option using a public/private collaboration. While multiple options were reviewed, only one appeared to meet all technical and operational, capacity and scalability requirements of the City. That option was potential co-location at the ImOn Communications Network Operations Center located at 332 W. 8th Street. Information Services Manager Chris Kohlmann, Civil Engineer II Dave Ness and Sustainable Innovation Consultant David Lyons recommend City Council approval of a License Agreement with ImOn Communications to co-locate critical City technology infrastructure at the ImOn Communication Network Operations Center. ImOn Communications has an existing Master Shared Services Agreement with the City. As part of such Agreements, the City retains the option of offsetting its costs of a sharing arrangement against obligations incurred by Agreement partners. In this case the costs of a five year license to co-locate (at a monthly cost of$1,300) will be off-set against the existing obligations that ImOn Communications will have to the City for co- location of its equipment at or within City facilities. In addition, the City will avoid the costs of security, power and maintenance it would have for the equipment should it be located at a City owned/managed facility. I concur with the recommendation and respectfully request Mayor and City Council approval. � Mic ael C. Van Milligen MCVM:jh Attachment cc: Crenna Brumwell, City Attorney Teri Goodmann, Assistant City Manager Cori Burbach, Assistant City Manager Dave Ness, Civil Engineer II Chris Kohlmann, Information Services Manager David Lyons, Sustainable Innovation Consultant 2 Dubuque THE CITY OF � �IFMmerip Ci�r DUB E '�I , �I.' �� 2007•2012•2013 Masterpiece on the Mississippi zoi�*Zoi9 TO: Michael C. Van Milligen, City Manager FROM: Dave Ness, Civil Engineer II Chris Kohlmann, Information Services Manager David Lyons, Sustainable Innovation Consultant SUBJECT: Proposed License Agreement between City of Dubuque and ImOn Communications, LLC DATE: September 15, 2020 INTRODUCTION The purpose of this memo is to request approval of a License Agreement with ImOn Communications to co-locate critical City technology infrastructure. BACKGROUND The City of Dubuque's technology assets and services have grown significantly, as has the City's reliance on them for day-to-day operations. Presently the majority of those assets are dependent upon hardware located in the basement of the City Hall Annex, a location neither designed for such a task nor adequately resilient for assuring operational capacity and security as the City system continues to grow. In researching options City staff determined that the traditional approach of a purpose-built facility would entail a cost of hundreds of thousands of dollars to the City budget, prompting staff to explore alternatives. Staff reached out to the multiple Telecommunications Companies and Internet Service Providers that had entered into Master Shared Service Agreements with the City to determine is there would be a less costly option using a public/private collaboration. While multiple options were reviewed, only one appeared to meet all technical and operational, capacity and scalability requirements of the City. That option was potential co-location at the ImOn Communications NOC (Network Operations Center) located at 332 W. 8t" Street. DISCUSSION City staff reached out to ImOn Communications who was open to the concept of sharing space and acknowledged that they had sufficient capacity to house City equipment as well as grow as needs may dictate. Additional discussions occurred and a site visit was conducted. The following was the consensus of the City team on co-location at this site: - It would provide the highest level of resiliency to the City, including equipment that could operate the City's critical layer 2 which is the data link layer. Layer 2 is where data packets are encoded and decoded into actual bits. It is the protocol layer that enables the transfer of data between adjacent network nodes in a network segment, such as a local or wide area network. It would also accommodate layer 3 network platform needs. Layer 3 is responsible for all data packet forwarding between intermediate routers, - The facility was completely scalable to anticipated future City needs. - The facility's monitored operations center and physical security and oversight would be superior to any other options identified. BUDGET IMPACT ImOn Communications has an existing Master Shared Services Agreement with the City. As part of such Agreements, the City retains the option of offsetting its costs of a sharing arrangement against obligations incurred by Agreement partners. In this case the costs of a five year license to co-locate (at a monthly cost of$1,300) will be off-set against the existing obligations that ImOn Communications will have to the City for co- location of its equipment at or within City facilities. In addition, the City will avoid the costs of security, power and maintenance it would have for the equipment should it be located at a City owned/managed facility. RECOMMENDATION AND ACTION REQUESTED It is the opinion of City staff that the proposed License Agreement to co-locate City technology infrastructure at the ImOn Communication NOC provides the City with the most resilient, scalable, secure and cost-effective option to assure Dubuque's technology assets and services remain available to support day-to-day operations. We would request your review and your recommendation of approval to the Dubuque City Council. c.c. Crenna Brumwell, City Attorney Barry Lindahl, Senior Counsel Steve Brown, Project Engineer Internee , Ca e TV . Phon Ind CommunikMbns, ULC 101 3°4 Avenue SW'. Suits 400, Cedar Rapids, IA 52404 31.9498-6484 -w.imOii.:;�M October 15, 2020 Mr. Kevin S. Firnstahl, City Clerk The City of Dubuque 50 W. 13th Street Dubuque, IA 52001 Re: Signature Request for Amendments Nos. 5 & 6, and License Agreement Dear Mr. Firnstahl, Enclosed, please find three signed documents between ImOn Communications and the City of Dubuque, Iowa from July 20, 2020, and September 21, 2020: 1. Amendment No 5 to Master Co -Location and Shared Services Agreement (7/20/20) 2. Amendment No6to MasterCo-Locationand Shared Services Agreement (7/20/22) 3. License Agreement (332 W. 8th Street, Dubuque) (09/20/20) Please contact me if you have any questions Sincerely, Patrice M. Carroll President & CEO ImOn Communications, LLC patricec@imon.net o. 319-261-4601 m. 319-533=1635 Enclosures: (3) LICENSE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND IMON COMMUNICATIONS. LLC This License Agreement (the "Agreement") dated for reference purposes thday of 2Qy and between the City of Dubuque, Iowa, (the "City") and ImOn C mmunications, LLC, located at 101 3rd Avenue, SW, Cedar Rapids, Iowa 52404 ("ImOn"). The City and ImOn may be collectively referred to as the "Parties," or individually as a "Party." This Agreement will take effect on the date of the last signature of the Parties. WHEREAS, ImOn leases space in a building owned by the Dubuque Museum of Art located at 332 W. 8th Street in Dubuque, Iowa, (the `Building") that includes a secured area that houses certain ImOn telecommunications infrastructure assets (the "Facility"); and WHEREAS, the City desires to use some rack space located within this Facility to reduce its operating costs, thereby providing improved telecommunications services to the citizens of Dubuque, and ImOn agrees to grant to the City a license to access the Facility and use such rack space, according to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual promises herein, and other good consideration, the adequacy of which is acknowledged, the Parties agree as follows: 1. SERVICES and ACCESS. During the term and any renewal of this Agreement (defined in Section 5), ImOn shall provide certain Services and access to the ImOn Facility as set forth in Exhibit 1, which is attached to and incorporated by reference into this Agreement. 2. PAYMENT. The City agrees to pay the applicable charges set forth in Exhibit 1. ImOn will send a monthly invoice for all applicable charges and taxes, and the City shall timely pay such invoice in full by the Due Date. If the City fails to timely pay such invoice, ImOn may, in its sole discretion, do one or more of the following: discontinue Services and/or terminate the City's access to the Facility. Any invoice amount that remains unpaid after fifteen (15) days following the payment Due Date shall be subject to a late payment charge equal to the lesser of one and one-half percent (1.5%) per month, or the maximum amount allowed by law, which will accumulate monthly until all amounts are paid in full. 3. EQUIPMENT AND CROSS -CONNECTIONS. a. The City shall have the option of providing its own hardware, software and ancillary equipment necessary to provide its services, including servers, switches, routers, telecommunications and/or other data equipment and cabling (collectively, "City Equipment"), provided that such City Equipment complies with ImOn's policies and practices for installation, weight, power, security and heat requirements. The City shall also provide, upon request, 080520ba1 information regarding its systems, rack/cabinet layout, network equipment, and cross -connection diagrams. The City shall be required to either use ImOn for the installation of the City Equipment or obtain ImOn's prior approval of the City's choice of contractors and/or staff to complete the installation. It is specifically understood that compliance with hardware warranty and software license requirements are the sole responsibility of the City. It is understood and agreed that the City shall not be entitled to make any construction changes or material alterations to the ImOn Facility, including any cabling or power supplies for the City Equipment, without obtaining ImOn's prior written approval. ImOn reserves the right to perform and manage any construction or material alterations within its Facility ("Co -location Area") at ImOn's customary rates for such Services. b. Upon obtaining ImOn's prior written approval, the City may cross -connect its equipment within in its cabinets to equipment located in different cabinets so long as these cabinets are owned by the City or provided to the City as agreed to in writing. Failure to obtain ImOn's prior approval of any cross -connection shall constitute a material breach of this Agreement, and ImOn may pursue any legal or equitable remedy available to it, including, without limitation, either the immediate removal of such impermissible cross -connection or the immediate termination or suspension of the rights granted in this Agreement without any liability to ImOn. ImOn shall control and direct any and all installation and other work relating to the establishment of the cross- connections. The City shall compensate ImOn for the cross - connection and interconnection products and services at ImOn's customary rates. 4. CONFIDENTIALITY. a. Scope: Both Parties acknowledge that in the negotiation and performances of this Agreement and the obligations of the Parties, each may receive Confidential or Proprietary Information of the other. "Confidential or Proprietary Information" is defined as all information, materials, data and documents, in whatever form, relating to either party which is not generally available to the general public which has been made available to the other and specifically marked or verbally identified in the case of verbal information as "confidential" or "proprietary" by either Party. The foregoing obligations shall apply to verbal information as well as specific portions of the information that are disclosed in writing or other tangible form and marked to indicate the confidential nature thereof. Notwithstanding the foregoing, "Confidential or Proprietary Information" does not include any information which: i. Was known to the receiving party prior to receipt under this Agreement, as demonstrated by the receiving party's records; or ii. Was publicly known or available prior to receipt under this Agreement, or later becomes publicly known or available through no fault of the receiving party; or 080520ba1 iii. Has been or is disclosed, without restrictions on disclosure, to the receiving party by a third party having the legal right to disclose the same or to a third party by the disclosing party; or iv. Is independently developed by an employee, consultant, or agent of the receiving party without access to the information as received under this Agreement; or v. The receiving party is obligated to produce as a result of a court order or other legal process, provided that the disclosing party has been given notice thereof and an opportunity to waive its rights or to seek a protective order or other appropriate remedy; or vi. Is determined by the City Attorney to be a non -confidential public record under Iowa law. b. Covenants of Confidentiality and Nondisclosure: Upon written request of a disclosing party, the receiving party shall return all information disclosed in written or tangible form, and the receiving party shall destroy all their copies, excerpts or notes made by it which contain any portions of the information unless otherwise provided for by the Parties. All rights and responsibilities under this Section shall survive termination of this Agreement for a period of two (2) years. The Parties agree to use commercially reasonable efforts to maintain the confidentiality of such material, but in no event lesser than was used by the receiving party with its own Confidential or Proprietary Information. Except as required by this Agreement or to perform this Agreement, both Parties will not (i) make any use of such material that is Confidential or Proprietary Information or that could constitute competition with the disclosing party in the State of Iowa, nor (ii) disclose such information to any third party without prior written authorization from the disclosing party. Each party shall (i) limit dissemination of the information received by it to those of its employees, agents and consultants whose duties reasonably justify the need for access to such information and who are subject to obligations of secrecy and limited use commensurate in scope with this Agreement, and (ii) take appropriate measures to assure that its employees, agents and consultants who receive or have access to such information, as contemplated above, observe and comply with all of the terms and provisions of, and each such party's obligations under, this Agreement. No other right or license to use the information is granted under this Agreement. c. Acknowledgement: The City agrees that ImOn's methodology, service processes, and pricing is the sole and exclusive property of ImOn, and shall treat them as Confidential and Proprietary Information. d. Notwithstanding the foregoing, the City shall notify ImOn in writing of any public request for disclosure of ImOn's information within five (5) business days after such request and Imo shall have ten (10) business days to take such action as ImOn deems appropriate to prevent such disclosure. In the event ImOn fails to take any such action, the City shall be authorized to disclose the requested information without any liability of any kind to ImOn. 5. TERM and RENEWAL and TERMINATION. This Term and any subsequent renewal(s) 080520ba1 of this Agreement shall be mutually agreed to by the Parties as set forth in Exhibit 1. Either Party may terminate this Agreement upon the material breach by a Party and, upon written notice of such alleged breach, a failure to cure such material defect within 15 days of receipt of such breach notice. 6. DEFAULT; REMEDIES UPON DEFAULT. The following non-exclusive list shall constitute some of the events of default; the City fails to pay amounts owed to ImOn when due, or the City is in material breach of this or any other Agreement with ImOn. In addition to any other rights granted to either Party herein, in the event the City fails to pay amounts owed to ImOn, or otherwise perform its obligations under this Agreement, ImOn shall have the right, in its discretion, to suspend, or terminate, services pursuant to this Agreement and such suspension will not be considered a default. Should the City breach the terms of this Agreement, resulting in termination, the City shall remain obligated to pay ImOn for monthly recurring charges set forth in Exhibit 1 for the remainder of the Term of the Agreement, and the Parties agree that the City's continued obligation to ImOn for the recurring charges constitutes fair and adequate liquidated damages for the City's breach of the Agreement, in addition to any other legal or equitable remedies available to ImOn. Recurring fees described in Exhibit 1 shall continue to accrue and be payable by the City, notwithstanding ImOn's exercise of its right to terminate or suspend Services. In addition to the foregoing, and without limiting any other remedies available to ImOn, in the event of the City's failure to make timely payment for fees and charges pursuant to the terms of this Agreement, ImOn shall be entitled to seek all appropriate legal action(s) to resolve any unpaid amounts owed to ImOn. ImOn may also proceed at law or in equity with any remedy provided by this Agreement or by law for the recovery of charges described in Exhibit 1 or for termination of this Agreement because of the City's default in its performance. 7. EMINENT DOMAIN OR DAMAGE TO THE IMON FACILITY. In the event of a taking of all or any portion of the ImOn Facility by eminent domain, or similar governmental power, so as to prevent ImOn's performance of this Agreement, then this Agreement may be deemed terminated by ImOn in its sole and absolute discretion as of the date of such taking, and the fees and charges paid or to be paid by the City for future services shall be adjusted accordingly. If the building in which the ImOn Facility is located is damaged by fire or other casualty, then ImOn shall give notice to the City of such damage as quickly as practical under the circumstances and if ImOn is unable to provide Services as a result of the damage, which determination shall be made in ImOn's sole and absolute discretion, then this Agreement may be terminated by ImOn as of the date of such determination, and the fees and charges paid or to be paid by the City for future Services shall be adjusted accordingly. Under no circumstances shall ImOn have any obligation to repair or replace equipment provided by the City. If ImOn is unable to complete the repair of its Facility following fire or other damage within a reasonable period of time under the circumstances, the City shall have the option to terminate this Agreement, which option shall be the sole remedy available to the City against ImOn. The City shall have no claim against ImOn for the value of the unexpired term of this Agreement or any 080520ba1 claim or right to any portion of the amount that might be awarded as a result of such condemnation. 8. LIMITED WARRANTIES AND REPRESENTATIONS. ImOn warrants and represents that it will deliver its Services in a professional and reasonable manner, but MAKES NO OTHER WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, including any warranties of MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, EFFORT TO ACHIEVE PURPOSE, QUALITY, ACCURACY, NON -INFRINGEMENT, QUIET ENJOYMENT OR TITLE. In no event will ImOn, or its officers, directors, employees or affiliates, or any entity contracting with ImOn for facilities, equipment, or services used by the City under this Agreement, collectively or individually, be liable to the City for special or consequential, or similarly designated damages, or loss of profits in contract, whether or not the possibility of such damages has been disclosed in advance or could have been reasonably foreseen by ImOn or the City, 9. ACCEPTABLE USE. The City is required to review and adhere to any applicable Acceptable Use Policy of ImOn for the applicable Services. ImOn reserves the right to amend the Acceptable Use Policy for operational performance, security, safety, and other applicable requirements. 10. INDEMNIFICATION. a. The City shall indemnify, defend and hold ImOn and all of its affiliates, agents, consultants, employees, subcontractors, shareholders, directors and officers harmless from and against any and all actions, claims, court costs, damages, demands, expenses, liabilities, losses or penalties, including reasonable attorney fees (collectively "Claims") arising out of, regarding or relating directly or indirectly to, (a) Claims by ImOn's customers or clients resulting from negligence or intentional conduct caused by the City in breach of this Agreement, or (b) Claims for personal injuries or property damage which result from any negligence or intentional conduct of the City. b. ImOn shall indemnity, defend and hold harmless the City, its officers, and employees from and against any and all claims of any kind arising out of or related to ImOn's negligence in the performance of this Agreement. 11. INSURANCE. a. During the Term of this Agreement, ImOn shall maintain and provide to City proof of: (i) Comprehensive general liability insurance with a combined single limit per occurrence of not less than One Million Dollars ($1 ,000,000.00) per occurrence for bodily injury, including death, and property damage liability, including coverage extensions for blanket contractual liability, personal injury liability and products and completed operations liability and (ii) "All risk" property insurance covering all of ImOn's equipment and any other property of ImOn located in 080520ba1 the Facility. ImOn shall look solely to its own insurance in the event of any damage or loss to such equipment or other property. The City and its officers, directors, employees and affiliates shall have no liability for losses to any ImOn Equipment, and ImOn acknowledges the same. b. Any equipment or other property kept or maintained by the City at ImOn's Facility shall be insured solely by the City for the full replacement value of such equipment or property and shall look solely to its own insurance in the event of any damage or loss to such equipment or other property. ImOn and its officers, directors, employees and affiliates shall have no liability for losses to any City Equipment, and the City acknowledges the same. c. ImOn acknowledges that the City is a member of the Iowa Communities Assurance Pool. The City shall provide ImOn evidence of its coverages and as long as the City continues such membership, ImOn acknowledges that the coverages provided by such membership satisfy the requirements of this section in all respects. 12. NO REAL PROPERTY INTEREST. The City acknowledges that it has only a license to occupy a portion of the ImOn Facility and that it has not been granted any real property interest in or to such portion or facilities, or the building in which the Facility is located. The City further agrees that neither this Agreement nor any interest or right created herein shall be assigned, mortgaged, subleased, sublicensed, encumbered or otherwise transferred by the City except as expressly permitted herein. The City further agrees that no part of the ImOn Facility may be used or occupied by any entity (including any affiliated entity) other than the City without ImOn's advance written consent. Violations of this Section shall be a material breach of this Agreement. 13. GENERAL PROVISIONS. a. Force Majeure. ImOn shall not be responsible for failure or delay in delivery of any Service, if caused by an act of God or public enemy, war, terrorism, government acts, regulations or orders, fire, flood, embargo, quarantine, epidemic, labor stoppages or other disruptions, accident, unusually severe weather or other cause similar or dissimilar, beyond the control of the defaulting party. b. Independent Contractors, Assignment & Delegation. The Parties are independent contractors under this Agreement. Except as expressly set forth herein, neither Party has the authority to, and each Party agrees that it shall not, directly or indirectly contract any obligations of any kind in the name of or chargeable against the other Party without such Party's prior written consent. Neither Party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party hereto, which consent shall not be unreasonably withheld, delayed or conditioned. It shall not be unreasonable for either Party to withhold, delay or condition consent to any assignment if (a) either Party is in breach or threatened breach of this Agreement, (b) the proposed assignor will not agree in a separate writing to the terms of this Agreement, or (c) the proposed assignor is not at least as 080520ba1 equally qualified and experienced as either the City or ImOn as the case may be, in the sole opinion of the person from whom consent is required. Nothing in this Agreement is to be construed as an assignment or grant of any right, title or interest in any trademark, service mark, copyright, design or trade dress, trade name, patent right or other intellectual or industrial property right owned by either Party. c. Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made as of the date delivered, if delivered personally, three business days after being mailed by registered or certified mail (postage prepaid, return receipt requested) or one business day after being sent by overnight courier (providing proof of delivery), to the Parties at the addresses listed in this Agreement. d. Entire Agreement, Amendment and Waiver. This Agreement, together with the attached Exhibit(s), contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment by both Parties, or in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Headings are for convenience only and are not intended to be substantive provisions of the Agreement. e. Law and Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Iowa applicable to agreements made and to be performed wholly within such jurisdiction without regard to conflicts of laws principles. Each of the Parties hereby irrevocably and unconditionally consents to submit to the jurisdiction of the courts of the State of Iowa and of the United States of America, in each case located in the State of Iowa, County of Dubuque, for any litigation arising out of or relating to this Agreement and the transactions contemplated hereby, and further agrees that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. f. Attorney's Fees and Costs. In the event any Party to this Agreement takes legal action to enforce the terms of this Agreement, any Party determined to be in violation of this Agreement agrees to pay the reasonable attorney fees and other costs and expenses incurred by the Party not in violation of this Agreement. g. Dispute Resolution. The Parties will make good -faith efforts to resolve any dispute between the Parties. Upon written notice of such dispute, each Party will appoint a senior level executive to meet and resolve the dispute. If the dispute is not resolved within ten (10) business days after such written notice, or a longer period as agreed to in writing by the Parties, either 080520ba1 City of Dubuque, Iowa By: a Name: Ro' D. Buol Title: Mayor Date: September 21, 2020 ImOn Communications, LLC By: Name: Patrice C. oll Title: President and CEO Date: 080520ba1 EXHIBIT 1— CO -LOCATION TERMS Co -location Address: 332 West 8th Street, Dubuque, Iowa 52001 Scope of Services provided by ImOn: • Co -location facilities in an appropriate, secure and environmentally -controlled area • Provider space for two racks provided by City • Standard power is AC at 120 volts with 20 amps • Power is not UPS -protected and includes a generator backup Additional protected (or non -protected power) is available upon request and will incur additional charges Will provide System power -down and power -up service at request of the City subject to the applicable labor rate. Escorted access to City Equipment for service by the City's authorized representatives is subject to the applicable labor rate as follows: • Non -emergency access upon five (5) business days' notice available during normal business hours • Emergency access as soon as reasonably possible upon notice and notice may be provided 7 x 24 to ImOn. The City of Dubuque should contact ImOn at 563-239-9150. Additional technical services provided by ImOn outside the scope of these Services described above are available to the City upon request, and as mutually agreed upon by the Parties to this Agreement. The City shall be responsible for: • All City hardware and software • Installation, maintenance and support of all City hardware and software • Hardware and software upgrades as needed • Monitoring and maintenance system resources for adequate operation Term for Co -Location Site: Five years commencing on October 1, 2020 080520ba 1 Renewal Term: Following expiration of the initial Term, this Agreement shall automatically renew for an additional five years, unless either Party provides 180 day written notice prior to the then termination date or terminates this Agreement in accordance with the other terms and conditions set forth herein. Charges: • Recurring Charge: $_1300 per month • Non -recurring Charges: $_500_ for applicable initial electrician charges • Monthly recurring and non -recurring charges include co -location space, facilities, and standard power provided by ImOn as defined and agreed to with the City. • Cross -connections to third parties permitted only upon written ImOn consent. • If granted, then the following cross -connection charge applies: $_200_ per month per facility for fiber cross -connects Labor Rates: Business Hours Monday -Friday 8 am — 5 pm Minimum 1 hour Hourly Rate $120.00 Holidays and all other non -business hours. $180.00 Minimum 2 hours Authorized representatives of each Party have executed this Exhibit 1. 080520ba1 City of Dubuque, Iowa Name: Roy D. Buol Title: Mayor Date: September 21, 2020 ImOn Communications, LLC By: Name: Patrice Carroll Title: President and CEO Date: e`, 4); &2 r) 080520ba1