09.e1 Aid to Midco Broadband Construction Agreement 2022 - 8.2.2022
CONSTRUCTION COST SHARING AGREEMENT
Midco is an Equal Opportunity/Affirmative Action Employer M/F/D/V
THIS CONSTRUCTION COST SHARING AGREEMENT (the “Agreement”),
dated as of ______________________________, 20_____, is by and between the City of
Scandia, Minnesota, whose address is 14272 209th Street North, Scandia, MN 55073
(“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 (the “Project Areas”), which specifically includes ROW along the
following named streets: 199th Street North, 213th Street North, 230th Street North, 232nd
Street North, 235th Street North, 236th Street North,
232nd Street North, 235th Street North, 236th Street North, 238th Street North, 240th
Street North, Meadowbrook Avenue North, Morgan Avenue North, Nolan Avenue North,
Novak Avenue North, Oakhill Road North, Olinda Trail North, Parkview Lane North,
Scandia Trail North, and St Croix Trail North.
WHEREAS, the state of Minnesota controls the ROW along Scandia Trail North,
and St Croix Trail North.
WHEREAS, the county of Washington controls Oakhill Road between Scandia
Trail North and St Croix Trail North.
WHEREAS, Midco seeks to install in the ROW Project Area 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 herby 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 its video,
CONSTRUCTION COST SHARING AGREEMENT
Midco is an Equal Opportunity/Affirmative Action Employer M/F/D/V
data and telephone service to the residences at the addresses shown in Exhibit 2.
Construction must be completed by December 31, 2022. Individual drops to the customers
home will be installed when service is ordered and installation is agreed upon by the
customer and Midco.
2. Service Speed. Midco shall provide access to video, data and telephone
service for the residences named in Exhibit 2 at a speed of up to 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 in the Project Area, 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 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 facilities to
provide such services, City shall pay to Midco on the date of this Agreement TWO
HUNDRED AND NINTEEN THOUSAND DOLLARS ($219,000) (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 available 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 named in Exhibit 2 in excess of the Cost Share Amount, and the City
will incur no costs in excess of the Cost Share Amount 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 Cost Share Amount, that
demonstrate 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 completion.
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
CONSTRUCTION COST SHARING AGREEMENT
Midco is an Equal Opportunity/Affirmative Action Employer M/F/D/V
the number of service passings and service speeds are met. Verification of internet speeds
will be completed by sampling service taps completed with the buildout.
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 Project Area. Midco acknowledges that the City cannot grant Midco
the right to install infrastructure in ROW controlled by Washington County or the State of
Minnesota. 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
State-controlled ROW 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. .
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. By entering
into this Agreement, the parties agree the City is not and will not be acting as a video, data
and telephone service provider. Midco is solely responsible for the provision of video, data
and telephone service to the residences depicted in Exhibit 2. Any contracts for video, data
and telephone service between Midco and City residents are solely between Midco and the
residents, and Midco shall indemnify, save, and hold the City harmless from any claims
arising out of video, data and telephone service contracts.
9. Financial Assistance Reporting. Midco shall cooperate with the City in
drafting and submitting any Financial Assistance Reports to the Minnesota Department of
Employment and Economic Development necessary due to this agreement.
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.
CONSTRUCTION COST SHARING AGREEMENT
Midco is an Equal Opportunity/Affirmative Action Employer M/F/D/V
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:
MIDCO
MIDCONTINENT COMMUNICATIONS
By: MIDCONTINENT COMMUNICATIONS
INVESTOR, LLC, Its Managing Partner
By:
Name:
Title:
CONSTRUCTION COST SHARING AGREEMENT
Midco is an Equal Opportunity/Affirmative Action Employer M/F/D/V
EXHIBIT 1
CONSTRUCTION COST SHARING AGREEMENT
Midco is an Equal Opportunity/Affirmative Action Employer M/F/D/V
EXHIBIT 2
ADDRESSES PASSED