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5. Amendment to Construction Cost Sharing Agreement with Midco r 1�1 N CANDIA Staff Report Date of Meeting: January 4, 2023 To: Mayor and City Council From: Anne Hurlburt, Interim City Administrator Re: Amendment to Construction Cost Sharing Agreement with Midcontinent Communications d/b/a/"Midco" Action Requested: Approve an amendment to the construction cost sharing agreement with Midcontinent Communications d/b/a/"Midco"to extend the completion date from December 31, 2022 to July 1, 2023. Background: At their December 15, 2022 meeting, the Internet Action Committee discussed the status of Midco's 2022 build, which is running behind schedule due to supply chain issues. In particular, Midco has been having difficulty obtaining fiber splicing materials, of which they are in short supply. The city will need to consider extending the completion deadline. Midco has indicated that they prioritized the Oakhill project as it was partially funded by both Scandia and the county. Their teams have been working to complete this area and have now completed fiber splicing, certifying and activating the Oakhill project and service is now available. They are also slightly behind on the other projects in Scandia. They expect to have the larger area in northwest Scandia spliced, certified and activated in the first quarter of 2023, with a smaller project on Hwy 97 to follow in the spring. The City Attorney has reviewed the amendment and had no concerns. Attachments: • Amendment to Construction Cost Sharing Agreement(Midco Draft) • Construction Cost Sharing Agreement dated August 16, 2022 AMENDMENT TO CONSTRUCTION COST SHARING AGREEMENT THIS CONTRACTUAL AMENDMENT (the "Amendment") is made by and between the City of Scandia, whose address is 14272 2091h Street North, Scandia, MN 55073 ("City"), and Midcontinent Communications ("Midco"), a South Dakota partnership, whose address is 3901 North Louise Avenue, Sioux Falls, SD 57107. WHEREAS,the parties executed a Construction Cost Sharing Agreement effective August 16,2022("The Agreement"), and Parties now desire to amend The Agreement. NOW THEREFORE THE PARTIES AGREE AS FOLLOWS: 1. Survival of Terms: This Amendment only alters the provisions stated herein. All other provisions, terms, and conditions in The Agreement not addressed by this Amendment continue in full force and effect. 2. Amendment: The following terms in The Agreement are amended as follows: Paragraph 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, data and telephone service to the residences at the addresses shown in Exhibit 2. Construction must be completed by July 1, 2023. Individual drops to the customers home will be installed when service is ordered and installation is agreed upon by the customer and Midco. 3. Effective Date: This Amendment shall be deemed effective as of the date of last signature affixed below. Ngnatures on Following Pagel Page I 1 of 2 CITY OF SCANDIA I3� Print name: Title: By: Print name: Title: Date: Midcontinent Communications d/b/a"Midco" By: Midcontinent Communications Investor, LLC Its Managing General Partner By: Print name: Title: Date: Page ` 2 of 2 ruNn UVU CONSTRUCTION COST SHARING AGREEMENT M 1 1 DCO THIS CONSTRUCTION COST SHARING AGREEMENT(the"Agreement"), dated as of 20 �. is by and between the City of Scandia, Minnesota,knlicise 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 I (the"Project Areas"),which specifically includes ROW along the following named streets: 199`'Street North,2131h Street North,230`' Street North,2321,d Street North,2351h Street North,2361h Street North, 232"d Street North,235`h Street North,2361h Street North,238"' Street North,240'h 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, Mldeo is an Equal Opportunity/Affirmative Action Employer MJF 0/V DOO CONSTRUCTION COST SHARING AGREEMENT MIDCO 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 custuuier 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 Re uired. 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. Commitnent to Deliver Access to Service.As part ofthis 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 Midco is an Egual opportunitylAfflrmatiye Action Employer MIFIDIV UVU CONSTRUCTION COST SHARING AGREEMENT MIDCO ' 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. Midco is an Equal Opportunity/Affirmative Action Em to er M F D V DOO nn CONSTRUCTION COST SHARING AGREEMENT M I DCV 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 A�rcement: 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,MI,NNESOTA V.- �KZ k1 Print Name: ITC 10 L��►mmhlJ�f-r'3_ � 1 Title: MIDCO MIDCONTINENT COMMUNICATIONS By: MIDCONTINENT COMMUNICATIONS INVESTOR,LLC, Its Managing Partner By: Name: Title: I j,e c+o,— o-F Goyek-gypuli-f-ee(a-h(U- Mldco is an Equal Oaoortunity/Affirmative Actlon Employer M F D V DOO CONSTRUCTION COST SHARING AGREEMENT M l DCO EXHIBIT 1 Mldco is an Equal Opportunity/Affirmative Action Ernniover MIFIDIV DOG CONSTRUCTION COST SHARING AGREEMENT M I DCO EXHIBIT 2 ADDRESSES PASSED Midco is an Equal Opportunity/Affirmative Action Emplayer MIFID1y � N and a„ � A ago � N aMZ a O � � r N w S U w 7 Y ` n � N 1D z � s r anuany o = •_� w r 1 r r lk- 4 v - aTr v bra Q ,c:l epur �7. a L { I N p N � i z o � Z a i 4 nr� - -_1 y � c rn 3 v 3 l5 4l09Z X d O O d 75 4�OBZ 0 0 O ±�- LO ul a D a G N O fD � � m N N ;S mL9Z c 1S 41OLZ ii cu 7 y r0 c r• y SE reclf a�e15 7 w C n to n r r r r r N r r r r F N r N l r r r r r r I r r r r r r r r r r r r r r r r r w 0 Or1 T Qrl Qr1 Url 1r71 1r71 lrll lrll Url U1 A vrl Ln W W W W W W W W w W W N A NA W W W W W N N N N N p N N N d COI Or t00 DD N O A N N N ON1 A W O V p g 1 ul N� lAD W N ONI Oro N N . 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