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HomeMy WebLinkAboutTelecommunications Utility Board - Joint Public Improvement Agreement - 2.20.2023 - 1 - JOINT PUBLIC IMPROVEMENT AGREEMENT THIS JOINT PUBLIC IMPROVEMENT AGREEMENT (hereinafter "Agreement") is made and entered into by and between the City of Waterloo, Iowa, a municipal corporation organized and existing under the laws of the State of Iowa (hereinafter "City"); and the Municipal Telecommunications Utility of the City of Waterloo, a municipal utility organized and existing under the laws of the State of Iowa (hereinafter "Utility"). WHEREAS, the City Council of Waterloo, Iowa and the Board of Trustees of the Utility have determined it to be in the best interests of the residents and ratepayers of the City and the Utility to cooperate in the joint undertaking of a public improvement project as herein defined; and WHEREAS, the City and the Utility desire to enter into this Agreement for the purpose of defining their respective rights and obligations in connection with said project; NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained and upon the following terms and conditions, the City and the Utility agree as follows: 1. Purpose. The purpose of this Agreement is to provide for efficiencies in connection with the design, bid letting and construction of the project hereinafter described, for the mutual benefit of the residents and ratepayers in the City of Waterloo. 2. Project. Except as herein provided, the term "Project" shall mean the FY 2023 Construction of a Fiber-to-the-Premises Feeder/Distribution (“FTTP”) and Backbone Network Project. The FTTP system is intended to pass all residents and businesses of Waterloo and includes approximately 390.54-miles of underground construction, and will be under the management and control of the Utility. The backbone includes approximately 115.80-miles of underground construction along major city corridors and key commercial areas. The backbone is presently intended to be under the management and control of the City, provided, however, that design changes, if any, could result in a portion of the backbone being under the management and control of the Utility. 3. Project Cost. Except as herein provided, the term "Project Cost" shall mean all costs and expenses reasonably incurred by the City and the Utility in connection with the design, bidding and construction of the Project. 4. Project Costs - Source of Funds. Each party is obligated and agrees to pay the portion of the Project Costs associated with the portion of the Project to be under its management and control, once in operation; provided, however, that Project Costs may be paid from any lawfully available funds or sources and certain funds or sources may be under the control of the other party. For example, general obligation financing and ARPA funds are under the control of the City but may be used to pay for certain Project Costs pertaining to the portion of the Project which will be under the management and control of - 2 - the Utility. The parties shall work together to establish the final financing plan, provided that such financing plan and the Project Cost allocation shall be made in accordance with applicable law. All payments shall be made from any lawfully available funds or sources. Project Cost payments may be made directly to the contractors associated with the Project or by reimbursement to the other party if such funds are advanced on behalf a party. If either party issues bonds or notes related to the Project (such party being the “Issuing Party”), and if such bonds or notes are used to construct portions of the Project that will be under the other party’s management and control once in operation, the other party agrees that it shall be responsible for paying the Issuing Party an amount or amounts equal to the portion of the debt service payments on such bonds or notes correlating with the portions of the Project financed by said bonds or notes which will be under its management and control. Payments to the Issuing Party may be made at the approximate time the applicable debt service payments are due, or by subsequent reimbursement to the Issuing Party. It is further understood that the Utility may use a portion of the backbone under the management and control of the City, and shall pay for such use in accordance with applicable law pursuant to a joint use agreement or other form of agreement to be prepared by the parties after the applicable Project Costs are known or at such other time as may be necessary and appropriate. If the City receives Utility services or uses portions of the FTTP system, the Utility may charge the City for such services or use. The parties shall cooperate with each other to execute and deliver such instruments and documents and take such actions as may be required to effectuate the provisions and intent of the cost sharing and usage provisions of this Agreement. 5. Project Responsibilities. The parties will have the following respective, responsibilities in connection with the Project. I. The City: A. The City shall be responsible for the portion of the Project Costs associated with the portion of the Project under its management and control, once in operation. B. The City will serve as the lead agency for the Project, and will enter into the engineering services agreement and the construction contract(s) for the Project. The Project shall be administered by the City and the City shall be responsible for the daily construction administration of the Project. C. The City shall post a combined notice to bidders for the City and - 3 - Utility as required by Iowa Code §§ 26.3 and 26.7. D. Before entering into a contract for the Project, the City shall publish a combined notice of public hearing for the City and Utility, as required by Iowa Code § 362.3, and hold a public hearing to consider and approve the proposed plans, specifications, form of contract, and estimated total cost of the public improvement, as required by Iowa Code § 26.12. E. Before entering into a contract for the Project, the City shall obtain authorization from the Utility after the Utility (1) holds its public hearing to consider and approve the proposed plans, specifications, form of contract, and estimated total cost of the public improvement, and (2) determines the lowest responsive, responsible bidder(s). II. The Utility: A. The Utility shall be responsible for the portion of the Project Costs associated with the portion of the Project under its management and control, once in operation. B. Before authorizing the City to enter into a contract for the Project, the Utility shall (1) hold a public hearing to consider and approve the proposed plans, specifications, form of contract, and estimated total cost of the public improvement, as required by Iowa Code § 26.12, and (2) either reject all bids or determine the lowest responsive, responsible bidder. C. After holding said hearing and determining the lowest responsive, responsible bidder, the Utility shall provide its authorization to the City for the City to enter into a contract or contracts for the Project. 6. The City shall be responsible for processing payments related to the Project, and will keep detailed payment records related to the Project. Project Cost and payment information will be shared with the Utility periodically throughout the construction of the Project. 7. Except as herein provided, the project shall be supervised by the City of Waterloo’s Public Works Division Manager, Randy Bennett. 8. Bids for the project shall be submitted to the City Clerk for the City of Waterloo. - 4 - 9. Award of Contract. After receipt of the report of bids, the Utility will either reject all bids or determine the lowest responsive, responsible bidder. The City will either reject all bids or determine the lowest responsive, responsible bidder and award the contract. Both parties must agree on the selection of the Contractor who is awarded the Project. 10. Project Acceptance. The public improvements associated with the Project shall be accepted as complete by resolutions approved by both the Utility and the City. 11. Project -- Timetable. The project shall be commenced on or before May 10, 2023, shall be substantially completed by December 31, 2026, barring any unforeseen delay. 12. Agreement -- Method of Approval. The parties hereto shall approve this Agreement by resolution. 13. Agreement -- Effective Date. This Agreement shall be effective from and after the date on which this Agreement is approved by the parties. 14. Agreement -- Duration. This Agreement shall be effective from the effective date herein provided until terminated as herein provided. 15. Agreement -- Termination. This Agreement shall terminate after the Project has been completed and all Project Costs and payments allocated to each party under this Agreement have been paid. 16. Agreement -- Method of Termination. This Agreement may be terminated by mutual agreement of the parties. Any such termination shall be in writing, and the parties hereto shall approve such termination by resolution. 17. Agreement -- Effect of Termination. The termination of this Agreement shall not relieve either party hereto of any obligations or liabilities accrued prior to the effective date of such termination, including but not limited to payment of Project Costs and other payment obligations hereunder incurred before termination. 18. Notices. Any notice under this Agreement shall be in writing. Notices to the City of Waterloo shall be addressed to: Martin Petersen, City Attorney, 715 Mulberry Street, Waterloo, IA 50703 Notices to the Municipal Telecommunications Utility shall be addressed to: Kelley Felchle, City Clerk, 715 Mulberry Street, Waterloo, IA 50703 - 5 - 19. Governing Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Iowa now or hereinafter applicable hereto. 20. Entire Agreement. This Agreement contains the entire Agreement between the parties hereto and may not be changed except by an amendment in writing signed by the parties hereto. 21. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute the same instrument. 22. Separate Legal Entity. This Agreement is not intended to establish a separate legal entity. 23. Severability. In case any one or more of the provisions contained in this Agreement shall be declared invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. (SIGNATURES ON FOLLOWING PAGES) - 6 - IN WITNESS WHEREOF, the City has caused this Agreement to be approved by resolution of its City Council this 20th day of February, 2023. CITY OF WATERLOO, IOWA By: __________________________________ Quentin Hart, Mayor ATTEST: By: __________________________ Kelley Felchle, City Clerk - 7 - IN WITNESS WHEREOF, the Utility has caused this Agreement to be approved by resolution of its Board of Trustees this 22nd day of February 2023. MUNICIPAL TELECOMMUNICATIONS UTILITY OF THE CITY OF WATERLOO, IOWA By: __________________________________ Andrew Van Fleet, Chair ATTEST: By: __________________________ Kelley Felchle, Secretary of the Board of Trustees 02157738-1\11310-157