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Fiber Optic Cable Facilities Agreement with Dubuque CountyTHE CITY OF Dui Masterpiece on the Mississippi Dubuque band AI -America City r 2007 • 2012 • 2013 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Fiber Optic Cable Facilities Agreement Between the City of Dubuque and Dubuque County DATE: April 29, 2014 Information Services Manager Chris Kohlmann recommends City Council approval of a Fiber Optic Cable Facilities Agreement between the City of Dubuque and Dubuque County that will provide network connectivity from the Historic Federal Building to the Dubuque County Courthouse. I concur with the recommendation and respectfully request Mayor and City Council approval. 1,1144 .., Mic ael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Chris Kohlmann, Information Services Manager NovusAGENDA HomePage of ??? LogoutLogout TO: Michael C. Van Milligen, City Manager FROM: Chris Kohlmann, Information Services Manager DATE: April 28, 2014 SUBJECT: Fiber Optic Cable Facilities Agreement Between the City of Dubuque and Dubuque County INTRODUCTION Recently, Dubuque County Auditor Denise Dolan contacted me regarding options available for providing network connectivity from the Historic Federal Building to the Dubuque County Courthouse. This memo explains the need for the network connection and how it can be accomplished. BACKGROUND Dubuque County is in the process of upgrading their telephone system to a Voice Over IP (VoIP) telephone system from Shoretel. (The City also utilizes a Shoretel telephone system). The Shoretel telephone system will replace the County's Centrex system. A VoIP telephone system utilizes the same network connectivity as a computer network. The County is obligated to provide telephony services to State of Iowa Judicial Branch staff offices located at the Historic Federal Building. The most reliable and cost effective solution is to provide Judicial Branch users with telephone extensions from the County's Shoretel system. The City has available fiber optic cable between the sites. DISCUSSION I have attached a proposed "Fiber Optic Cable Facilities Agreement Between the City of Dubuque and Dubuque County," outlining the the details of the fiber connection, terms and conditions. In summary the City would give the County permission to use two (2) dark (unused) fibers in a twenty ? four (24) strand fiber bundle from the Historic Federal Building to City Hall Annex. The fiber would then be connected to INet fiber, using up to four (4) dark strands out of a twelve (12) strand fiber ? bundle installed from the Annex to the Courthouse. The initial term of the agreement is fifteen years with an option to extend for additional five year periods. Fifteen to twenty years is the anticipated life of fiber resources. The fiber optic cable would be provided to the county at no charge. The county will be responsible for all costs to "light" the fiber and the city will have oversight of the work done at the Federal Building and City Hall Annex. Communications Engineering Company (CEC) will be doing the work. CEC is also the City's network vendor. City Attorney Barry Lindahl and I drafted the proposed agreement. RECOMMENDATION As the proposed fiber connection offers a cost effective and reliable connection for the county and the fiber can be provided without drastically impacting the city's current and future needs, I would recommend the city sign and execute the proposed Fiber Optic Facilities Agreement with Dubuque County. http://agenda.novus.cityofdubuque.org/ItemDetails/ClientApprovalSheet.asp...5/9/2014 NovusAGENDA HomePage of ??? ACTION TO BE TAKEN Please review the proposed agreement, let me know of any questions or issues, sign and execute. Thank you. cc: Barry Lindahl, City Attorney Craig Nowack, Cable Division Manager Copyright 20012014 ? http://agenda.novus.cityofdubuque.org/ItemDetails/ClientApprovalSheet.asp...5/9/2014 FIBER OPTIC CABLE FACILITIES AGREEMENT BETWEEN THE CITY OF DUBUQUE IOWA AND DUBUQUE COUNTY THIS AGREEMENT, dated for reference purposes the 5th day of May , 2014, is entered into by and between the City of Dubuque (City) and Dubuque County (County.) In consideration of the mutual covenants contained in this Agreement, the sufficiency of which is acknowledged, the Parties agree as follows: SECTION 1. IDENTITY OF THE PARTIES. 1.1 City is municipality in the State of Iowa incorporated in accordance with relevant provisions of Iowa law. City's Administrative offices location is City Hall, 50 W. 13th Street, Dubuque, IA 52001. 1.2 County is a county in the State of Iowa incorporated in accordance with relevant provisions of Iowa law. County's Administrative offices location is 720 Central Avenue Dubuque, Iowa 52001 SECTION 2. DEFINITIONS. The following words shall have the meanings set forth below. Words in the singular shall be held to include the plural and vice versa: "Agreement" means this document including the product, equipment and services referenced within this documentation. "City Hall Annex" shall mean City Hall Annex located at 1300 Main St Dubuque, IA. "City" means the City of Dubuque, Iowa. "Communications Equipment" means facilities or equipment provided, owned, managed or installed by City of Dubuque in, around or on the Designated Fiber. "Communications Cable" means a cable of one or more fiber optic strands installed and managed by the City of Dubuque. "County" means County of Dubuque, Iowa. "Courthouse" means Dubuque County Courthouse located at 720 Central Avenue Dubuque, Iowa 52001 "Dark Fiber" means a number of fibers, normally expressed in number of glass strands unless otherwise stated, between two specified locations that have no 042214baI optronics or electronics attached to it, thus no light/communications signal being transmitted through the fiber "Designated Fiber" means the designated dark fiber which is two strands of fiber optic cables running between and terminated at the historic Federal Building 350 W. 6th St. Dubuque IA 52001 and City Hall Annex 1300 Main Dubuque Iowa 52001 and up to 4 strands of designated dark I -Net fiber running between and terminated at City Hall Annex and the Dubuque County Courthouse located at 720 Central Avenue Dubuque, Iowa 52001 "Federal Building" shall mean the Historic Federal Building located at 350 W. 6th St. Dubuque, IA "Fiber" means a glass strand or strands which is/are protected by a color -coded buffer tube and which is/are used to transmit a communication signal along the glass strand in the form of pulses of light. "Patch Panel" means termination point for ingoing and outgoing fiber connections for communications networks. SECTION 3. PARTIES' OBLIGATIONS. 3.1 City hereby grants County permission to use two fibers of the bundled fiber connection between City's fiber termination point at the Historic Federal Building and City Hall Annex. This fiber terminates at City Hall Annex and will be connected to up to four strands of I -Net fiber running between City Hall Annex and terminated at the Courthouse. The designated fibers will be configured to provide connectivity for telephone users located at the Federal Building to use County's voice over ip (VoIP) telephone system. City will provide such use to County at no cost. 3.2 City or City's authorized contractor will perform all maintenance on the Fiber, including any Fiber repairs, Fiber restoration, and Fiber relocation that becomes necessary during the term of this Agreement. All fibers used for this application must be clearly labelled at patch panels and documented. If City incurs any costs associated with the designated Fiber repairs, Fiber restoration, or Fiber relocation, County must share such costs which will be determined by City based on the proportionate number of Fibers in the sheath that are used by County. If a third party is responsible for the Fiber cut and City is unable to collect the cost of the repair from the third party, County must reimburse City for County's share of the cost of the repair as described above. 3.3 If County or a contractor operating under the direction of County performs any procedure that could accidentally disrupt the passage of light in the Fiber or otherwise directly impact City's Fiber, the activity must be preplanned and submitted to City for approval not less than five (5) working days in advance and performed during established City maintenance windows (normally 8AM — 5PM). County must contact City's Information Services Manager or the Senior Network Administrator at 563-589- 4280 to schedule all maintenance windows. County may modify the Designated Dark 2 Fiber by terminating or otherwise extending the connection within its facilities beyond the patch panel. 3.4 Each Party will notify the other if it detects any issues that may interrupt service. City's Information Services Department will provide a point of contact for all repair issues at 563-589-4280. County will designate a point of contact during the term of this Agreement. 3.5 County or a contractor operating under the direction of County will be responsible for providing and installing all equipment to connect to jumpers and switching equipment at the Federal Building and City Hall Annex. Work at both locations will be done with approval and oversight by City. SECTION 4. TERM. The initial term of this Agreement is fifteen (15) years from the Acceptance Date (the "Initial Term") unless terminated earlier in accordance with Section 11 of this Agreement. Upon the expiration of the Initial Term, the Term may be extended for additional 5 -year periods upon request by County and approval by City prior to the expiration of the Initial Term or a subsequent Term of the Agreement. SECTION 5. COLLOCATION. To the extent that County wishes to collocate in any of City's Fiber facilities, the Parties shall enter into a separate collocation agreement for each site. SECTION 6. EXCLUSION OF WARRANTIES. City makes no warranty to County or any other entity, whether express, implied or statutory, as to the installation, description, quality, merchantability, completeness, useful life, future economic viability, or fitness for any particular purpose of the designated fiber, any fibers, or the system, or as to any other matter, all of which warranties are hereby expressly excluded and disclaimed. SECTION 7. INDEMNIFICATION. 7.1 County agrees to indemnify and hold harmless City, its officers and employees, from and against any and all costs, expenses, losses, claims, damages, liabilities, settlements and judgments arising directly out of the negligence or wrongful acts or omissions of County or any employee of County, while acting within the scope of the employee's office of employment in connection with the performance of this Agreement. 7.2 Nothing contained herein shall operate as a limitation on the right of either party hereto to bring an action for damages against any third party, including indirect, special or consequential damages, based on any acts or omissions of such third party as such acts or omissions may affect the construction, operation or use of the Designated Fiber; provided, however, that each party hereto shall assign such rights or claims, execute such documents and do whatever else may be reasonably necessary to enable the other party to pursue any such action against such third party. 3 SECTION 8. LIMITATION OF LIABILITY. Notwithstanding any provision of this Agreement to the contrary, in no event shall either party be liable to the other party for any special, incidental, indirect, punitive or consequential damages, whether foreseeable or not, arising out of, or in connection with, transmission interruptions or problems, or any interruption or degradation of service, including, but not limited to, damage or loss of property or equipment, loss of profits or revenue, cost of capital, cost of replacement services, or claims of customers, whether occasioned by any construction, reconstruction, relocation, repair or maintenance performed by, or failed to be performed by, the other party or any other cause whatsoever, including, without limitation, breach of contract, breach of warranty, negligence, or strict liability all claims for which damages are hereby specifically waived. SECTION 9. CITY'S PROPERTY. County may not, and may not permit others, to rearrange, disconnect, remove, and attempt to repair, or otherwise tamper with any City property without the notification and consent of City as provided in Section 3. The Parties agree that no party other than City or a contractor under the direct supervision of City shall be permitted to perform maintenance or repair on the Fiber. SECTION 10. COUNTY EQUIPMENT. County has sole responsibility for installation, testing and operation of County equipment. City is not responsible for the operation or maintenance of any County equipment. City is not responsible for the transmission or reception of communications or signals by County's equipment or for the quality of, or defects in, such transmission or reception. City is not responsible for the repair, maintenance, operation or trouble shooting performance of any equipment connected to the Designated Fibers. SECTION 11. TERMINATION. 11.1 Termination for Cause. Either party may terminate this Agreement if the other party breaches a material obligation under this Agreement and fails to correct the breach within 30 days of receiving written notice of the breach from the non -breaching party. 11.2 Other Grounds for Termination. Either Party may terminate this Agreement without penalty by giving 60 days' written notice to the other Party if one of the following events occurs: (a) Adequate funds are not appropriated or granted to allow the Party to operate as required to fulfill its obligations under this Agreement; (b) Funds are de - appropriated or not allocated or if funds needed by the Party, at the Party's sole discretion, are insufficient for any reason; (c) The Party's authorization to operate is withdrawn or there is a material change in the programs administered by the Party; or (d) City's duties are substantially modified any time during the course of the Agreement or extensions of the Agreement. SECTION 12. CONTRACT ADMINISTRATION. 4 12.1 Amendments. This Agreement may be amended in writing from time to time by mutual consent of the Parties. All amendments to this Agreement must be fully executed by the Parties. 12.2 Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. This Agreement is intended only to benefit County and City. 12.3 Choice of Law and Forum. The laws of the State of Iowa shall govern and determine all matters arising out of or in connection with this Agreement without regard to the choice of law provisions of Iowa law. In the event any judicial proceeding is commenced in connection with this Agreement, the exclusive jurisdiction for the proceeding is in the District Court for Dubuque County, Iowa. This provision may not be construed as waiving any immunity to suit or liability including without limitation sovereign immunity in state or federal court, which may be available to County or City. 12.4 Integration. This Agreement, including all the documents incorporated by reference, represents the entire Agreement between the Parties and neither Party is relying on any representation that may have been made which is not included in this Agreement. The Parties agree that if a Schedule, Addendum, Rider or Exhibit or other document is attached hereto by the Parties, and referred to herein, then the will be deemed incorporated herein by reference. 12.5 Not a Joint Venture. Nothing in this Agreement may be construed as creating or constituting the relationship of a partnership, joint venture, (or other association of any kind or agent/principal relationship) between the Parties hereto. No Party, unless otherwise specifically provided for herein, has the authority to enter into any agreement or create an obligation or liability on behalf of, in the name of, or binding upon another Party to this Agreement. 12.6 Supersedes Former Agreements. This Agreement supersedes all prior Agreements between City and County for the services provided in connection with this Agreement. 12.7 Waiver. Any breach or default by either party is not waived or released other than by writing signed by the other Party. Failure by either Party at any time to require performance by the other Party or to claim a breach of any provision of the Agreement may not be construed as affecting any subsequent breach or the right to require performance with respect thereto or to claim a breach with respect thereto. 12.8 Notices. Any and all notices, designations, consents, offers, acceptances or any other communication provided for herein shall be given in writing by registered or certified mail, return receipt requested, or by receipted hand deliver, by Federal Express, courier, or other similar and reliable carrier which must be addressed to each party as set forth as follows: All notices and correspondence must be sent by regular U.S. mail to the following: 5 City: City Manager City of Dubuque City Hall, 50 W. 13th Street Dubuque, IA 52001-4845 County: Dubuque County Auditor Dubuque County Courthouse 720 Central Avenue Dubuque, Iowa 52001 Each such notice will be deemed to have been provided at the earliest of the following: (a) at the time it is actually received; or (b) in the case of overnight hand delivery courier or services such as Federal Express with guaranteed next day delivery, within one day; or (c) in the case of registered U.S. Mail, within five (5) days. From time to time, the Parties may change the name and address of a party designated to receive notice. Such change of the designated person must be in writing to the other Party and as provided herein. 12.9 Cumulative Rights. The various rights, powers, options, elections and remedies of either Party, provided in this Agreement, will be construed as cumulative and no one of them is exclusive of the others or exclusive of any rights, remedies or priorities allowed either party by law. Nothing in this Agreement will be construed as affecting, impairing or limiting the equitable or legal remedies to which either party may be entitled as a result of any breach of this Agreement. 12.10 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the invalid portion will be severed from this Agreement. Such a determination will not affect the validity or enforceability of any other part or provision of this Agreement. 12.11 Obligations beyond Agreement Term. This Agreement will remain in full force and effect to the end of the specified Term or until terminated or canceled pursuant to this Agreement. All obligations of the Parties incurred or existing under this Agreement as of the date of expiration, termination or cancellation will survive the expiration, termination or cancellation of this Agreement. 12.12 Authorization. Each Party to this Agreement represents and warrants to the other that it has the right, power and authority to enter into and perform its obligations under this Agreement and that it has taken all requisite action (corporate, statutory, or otherwise) to approve execution, delivery and performance of this Agreement. This Agreement constitutes a legal, valid and binding obligation upon the Parties in accordance with its terms. 6 12.13 Successors in Interest. All the terms, provisions, and conditions of the Agreement are binding upon and inure to the benefit of the parties hereto and their respective successors, assigns, and legal representatives. 12.14 Counterparts and Facsimile Signatures. The Parties agree that this Agreement has been or may be executed in several counterparts, each of which will be deemed an original and all such counterparts will together constitute one and the same instrument. The Parties further agree that the signatures on this Agreement or any amendment or schedule may be manual or a facsimile signature of the person authorized to sign the appropriate document. All authorized facsimile signatures will have the same force and effect as if manually signed. 12.15 Taxes. State and Local. The Parties are tax-exempt entities and no payment will be made for any taxes for any purpose. 12.16 Assignment and Delegation. This Agreement may not be assigned, transferred or conveyed in whole or in part without the prior written consent of the other Party, which may not be unduly withheld. SECTION 13. EXECUTION. IN WITNESS WHEREOF, in consideration of the mutual covenants set forth above and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the Parties have entered into the above Agreement and have caused their duly authorized representatives to execute this Agreement. CITY OF DUBUQUE, IOWA By: Michael C. Van Milligen City Manager ATTEST By: Kevin S. Firnstahl, CMC City Clerk 7 DUBUQUE COUNTY By: