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08.c Midco Contract Revised CONSTRUCTION COST SHARING AGREEMENT [24947-35255/2877285/1] 1 THIS CONSTRUCTION COST SHARING AGREEMENT (the “Agreement”), dated as of ______________________________, 2021, is by and between The City of Scandia, Minnesota whose address is 14272 209 St N, Scandia MN (“City”), and Midcontinent Communications, a South Dakota general partnership, whose address is 3901 North Louise Avenue, Sioux Falls, SD 57107 ("Midco"). RECITALS WHEREAS, the City controls of certain Right-of-Way (“ROW”) within the area depicted on Exhibit 1, which specifically includes ROW along the following named streets: Quality Trail; Quadrant Avenue; 209th Street; and 205th Street; WHEREAS, the State of Minnesota controls ROW along the following named streets: Saint Croix Trail (Hwy 95) and Scandia Trail (Hwy 97) within the area depicted on Exhibit 1; WHEREAS, Midco seeks to install in the ROW in the area depicted on Exhibit 1 cable and certain other equipment necessary to deliver video, data and telephone service drops to the residences named in Exhibit 2; WHEREAS, the City and Midco desire to enter into an agreement to establish the necessary infrastructure to provide video, data and telephone service drops to the residences named in Exhibit 2; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and Midco enter the following: AGREEMENT 1. Construction of Cable Plant. Subject to the terms and conditions of this Agreement, Midco will install cable and other equipment necessary to provide video, data and telephone service to the residences named in Exhibit 2. Construction must be completed by December 31, 2021. 2. Service Speed. Midco shall provide access to video, data and telephone service for the residences named in Exhibit 2 at a speed of at least 5 gigabit per second downloads and 5 gigabit per second uploads 3. Right of Way Permit Required. Prior to engaging in any excavation, installation, or other work which may disturb the ROW, Midco shall apply to the City for a ROW permit. The City-issued ROW permit shall set forth the terms and conditions for Midco’s work within the ROW. In addition to obtaining a ROW permit, for ROW Commented [CN1]: Undefined. We need more clarity on what this is – what is Midco going to install in this area and what can Midco install in this area. Additionally, is there a commitment regarding the service that is being provided? If so, please state. CONSTRUCTION COST SHARING AGREEMENT [24947-35255/2877285/1] 2 controlled by the State of Minnesota, Midco must receive permission from the State of Minnesota for the proposed excavation and installation of any cable infrastructure within the ROW prior to commencing construction. Midco shall provide proof of the State of Minnesota’s consent to Midco’s proposed excavation of and infrastructure installation within the State of Minnesota controlled ROW to the City prior to commencing work within the ROW. 4. Cost Sharing. In consideration of Midco’s agreement to install the necessary facilities to provide video, data and telephone services, the City shall pay to Midco on the date of this Agreement EIGHTY-FIVE THOUSAND DOLLARS ($85,000.00) (the “Cost Share Amount”), which represents the City’s share of the costs to be incurred by Midco to finish its design, installation and construction activities to provide service to the Property. 5. Commitment to Deliver Access to Service. As part of this Agreement, Midco must provide video, data and telephone service drops to each of the residences named in Exhibit 2. Midco bears responsibility for all costs necessary to provide service access to each of the residences articulated in Exhibit 2 in excess of the City’s contribution, and the City will incur no costs in excess of EIGHTY-FIVE THOUSAND DOLLARS ($85,000.00) as a part of this project. Midco shall provide the City with plans detailing the proposed project service area, including engineering design and diagrams for the project that support the requested cost share amount, that demonstrate the video, data and telephone service will reach each of the residences named in Exhibit 2, and that demonstrate the reasonable of the timeline for the project’s competition. 6. Verification. The City shall contract with a third party to verify the project is completed in accordance with the project plan. Specifically, the City will confirm that the number of service drops and service speed has met the terms of this Agreement. 7. Easement Rights. City acknowledges that Midco shall be entitled to install and construct its cable and other equipment over and under the ROW areas controlled by the City within the area depicted on Exhibit 1. Midco acknowledges that the City cannot and by this Agreement does not grant Midco the right to install infrastructure in the ROW along State Highways 95 (Saint Croix Trail) and 97 (Scandia Trail). Midco acknowledges it will need to seek approval from the State of Minnesota to excavate and install infrastructure within State-controlled ROW. The City agrees to grant any required ROW permits to Midco for excavation and infrastructure installation within the ROW along State Highways 95 (Saint Croix Trail) and 97 (Scandia Trail) upon Midco providing proof of the State of Minnesota’s consent to the proposed ROW work and upon compliance with all other requirements for issuance of a ROW permit. CONSTRUCTION COST SHARING AGREEMENT [24947-35255/2877285/1] 3 8. Indemnification. Midco shall indemnify, save, and hold the City, its agents, and employees harmless from any claims or causes of actions, including attorney’s fees, incurred by the City arising from the performance of this Agreement by Midco or Midco’s agents or employees. This clause will not be construed to bar any legal remedies Midco may have for the City’s failure to fulfill its obligations under this agreement. 9. Financial Assistance Reporting. Midco shall cooperate with the City in drafting and submitting any Financial Assistance Reports necessary due to this Agreement to the Minnesota Department of Employment Economic Development. 10. Assignment. Midco shall neither assign nor transfer any rights or obligations under this Agreement without the prior written consent of the City. 11. Severability. If any provision of this Agreement, or the application of such provision to any party or circumstance, is found to be illegal or unenforceable for any reason, such provision will be modified or severed from this Agreement to the extent necessary to make such provision enforceable against such party or in such circumstance. Neither the unenforceability of such provision nor the modification or severance of such provision will affect the enforceability of any other provision of this Agreement. 12. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of Minnesota, without regard to its conflict of laws principles. 13. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and there are no other representations, warranties or agreements except as herein provided. This Agreement may be amended only by a written instrument signed by the parties. IN WITNESS WHEREOF, the parties have entered into this Agreement effective as of the date first written above. CITY OF SCANDIA, MINNESOTA By: Print Name: Title: CONSTRUCTION COST SHARING AGREEMENT [24947-35255/2877285/1] 4 MIDCO MIDCONTINENT COMMUNICATIONS By: MIDCONTINENT COMMUNICATIONS INVESTOR, LLC, Its Managing Partner By: Name: Title: CONSTRUCTION COST SHARING AGREEMENT [24947-35255/2877285/1] 5 EXHIBIT 1 CONSTRUCTION COST SHARING AGREEMENT [24947-35255/2877285/1] 6 EXHIBIT 2 ADDRESSES PASSED Commented [CN2]: Served?