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 �
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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 �
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DUB E '�I , �I.'
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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,
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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
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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)
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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
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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
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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
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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
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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:
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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
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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.
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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)
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