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HomeMy WebLinkAboutCity of Ammon (WAN) 2016-17JOINT POWERS COOPERATION AGREEMENT between CITY OF AMMON, IDAHO and BONNEVILLE JOINT UNION SCHOOL DISTRICT #93 for bandwidth services THIS JOINT POWERS COOPERATION AGREEMENT ( "Agreement ") is made and entered into this day of 'j, 2016 ( "Effective Date "), by and between City of Ammon, Idaho ( "C "), an Idaho municipal corporation and Bonneville Joint Union School District #93 ( "District "), a political subdivision of the State of Idaho. The City and the District may sometimes be referred to herein, individually as "Ear" and, collectively, as the "Parties." RECITALS: WHEREAS, the City owns and operates a fiber optic advanced communications system ( "Network "); and WHEREAS, the District intends to use the City's Network for its internal communications; and WHEREAS, the City is willing to provide access to, and operations and maintenance for the Network to provide for District's internal communications; and WHEREAS, the City's Network has sufficient capacity to accommodate the District's needs; and WHEREAS, the District is willing to compensate the City for the District's use of the Network. WHEREAS, it is mutually beneficial for the City and the District to work cooperatively to provide the District's internal communications across the City's Network; and WHEREAS, Section 67 -2328, et seq., of the Idaho Code, commonly known as the Joint Powers Act ( "Act "), authorizes public agencies to enter into an agreement for joint and cooperative action; and WHEREAS, the City and the District are public agencies as defined by the Act; and 4848 - 1899 - 7266.1 NOW, THEREFORE, in consideration of the mutual terms, covenants and obligations set forth herein, the sufficiency of which is hereby acknowledged, the Parties mutually agree as follows: AGREEMENT: 1. Definitions. For the purposes of this Agreement, the following terms shall have the meanings set forth in this Paragraph: a. "Agreement" means this agreement and incorporates any Exhibits, Appendices, or other attachments referenced herein. b. "GE" means Gigabit Ethernet. "Initial Term" shall have the meaning set forth in Section 4. d. "Network" means optical fiber strands, innerduct, conduit, electronics, colocation spaces and associated appurtenances owned or leased, directly or indirectly, by the City, as they are updated, supplemented or replaced from time to time. The Network is more particularly described in Exhibit "A." C. "Renewal Term" shall have the meaning set forth in Section 4. f. "Services" shall have the meaning set forth in Section 2. g. "Term" shall have the meaning set forth in Section 4. 2. _Purpose and Services. The purpose of this Agreement is to provide the means whereby the City can provide and the District will benefit from the provisions of certain services (as more fully explained hereafter). The City will provide the District with connections and services ( "Services "), as more fully set forth in Exhibit "A" which is attached and incorporated by this reference, across the City's Network. The Parties expressly agree that Exhibit "A" may be amended from time to time by the Parties without the need for further approval by the governing body of either Party, upon written approval and amendment to this Agreement by the Chief Executive Officer of each Party. The Services will comply with the service level agreements set forth in Exhibit `B." 3. Compensation and Payments. In consideration for the Services described in Paragraph 2, the District will compensate the City according to the pricing schedule set forth in Exhibit "A," which may be amended from time to time by the Parties without the need for further approval by the governing body of either Party, upon written approval and amendment to this Agreement by the Chief Executive Officer of each Party. The pricing set forth in Exhibit "A" 4852- 9917- 7234.1 represents the District's portion of compensation for each connection. The Parties understand and acknowledge that the City will undertake steps to receive the rest of the compensation as part of the federal "B- Rate" program. The District will reasonably cooperate with the City to ensure the City receives the E -Rate portion of compensation. Payments shall be due within thirty (30) days of date of invoice. Any payments received after the due date shall accrue interest at the rate of eighteen percent (18 %) per annum. 4. Term. This Agreement shall remain in full force and effect for two (2) years from the Effective Date ( "Initial Term "), and shall automatically renew for successive period of one (1) year each (each, a "Renewal Term," and, collectively with the Initial Term, the "Term "), unless either Party gives written notice of its intent to terminate this Agreement at least ninety (90) days before the end of the then - existing Term, or unless this Agreement has been earlier terminated in accordance with Paragraph 5 during the Initial Term or any Renewal Term. 5. Termination. The occurrence and continuance of the following events may result in the termination of this Agreement, at the sole discretion of the terminating Party, subject to the provisions of this Paragraph 6: a. Breach of Default. A material breach or a material default under the terms, covenants and conditions of this Agreement by either the City or the District, including, without limitation, the failure of the District to make any payments under the terms of this Agreement when due, or the failure of the City to provide the Services set forth in Paragraph 2. b. Change in Law. A change in any law, regulation or rule, or the issuance of an order by the Federal Communication Commission or the Idaho Public Utilities Commission that materially impacts the City's ownership or operation of the Network. C. Right to Cure. If the termination event is a breach or default described in Paragraph 5.a, the non - defaulting Party shall give written notice of such occurrence to the defaulting Party. The defaulting Party shall be given a reasonable time to cure any breach or default as follows: In the case of a monetary default, the defaulting Party shall have thirty (30) days after receipt of the written notice in which to effect a cure. ii. In the case of a non - monetary default, the defaulting Party shall have sixty (60) days after receipt of the written notice in which to effect a cure. In the non - monetary default cannot be corrected within such sixty (60) day period, the defaulting Party shall have an additional reasonable time in which to effect a cure, provided the defaulting Party commences corrective action within the original 4852- 9917 - 7234.1 sixty (60) day period and thereafter diligently prosecutes the corrective action to completion. If the defaulting Party does not timely cure the breach of default within the time periods specified above, the non - defaulting Party may elect to terminate this Agreement by providing written notice of such election to the defaulting Party. 6. Contract Administration. In accordance with the Act, this Agreement shall be administered by the City's Technology Director. 7. Governmental Immunity. Each Party hereto acknowledges that it is a governmental entity subject to the provisions of the Idaho Tort Claims Act and Claims for Damages Against Public Officials ( "Claims Act "). Each Party, subject to the provisions of the Claims Act, assumes responsibility for its own negligence and misconduct, and that of its officers, employees and agents. Execution of this Agreement shall not constitute a waiver of any defense or limitation of liability under the Claims Act nor be considered to have been entered into for the benefit of any person other than the Parties hereto. 8. Assignment. The City, and any assignee hereunder, shall have the right to assign its interest in this Agreement without the District's prior consent. In the event that the City, or any assignee hereunder, assigns its interest in this Agreement, the City, or any assignee hereunder, shall obtain from such assignee a written commitment that so long as the District performs its obligations under the terms of this Agreement, the District's right to use the Network, on the terms provided in this Agreement, shall not be disturbed, or terminated, and that in the event the City, or any assignee hereunder, loses title to the Network, for any reason, the City's, or the assignee's, successor or successors in interest with respect to the Network shall honor this Agreement, and permit the District to continue using the Network in accordance with the terms of this Agreement. 9. Attornment. In the event that title to the Network changes pursuant to Paragraph 7, the District's obligations under this Agreement shall remain in force and in effect, and shall attorn to the benefit of the successor in interest. 10. Rights -of -Way. To the extent deployment of the City's Network is contingent upon receipt of right -of -way permits from other entities, the District will jointly cooperate with and, where requested, jointly apply for all necessary right -of -way permits. To the extent such permits are not granted, the parties will jointly terminate the City's obligation to provide Services to the affected location(s), with no liability to either Party. 11. General Provisions. Under this Agreement the general provisions in this Paragraph 9 shall apply. 4852- 9917 - 7234.1 a. Independent Contractor Status. The City and the District reserve no control whatsoever over the employment, discharge, compensation of or services rendered by the employees or contractors of each other. Nothing in this Agreement shall be construed as inconsistent with the foregoing independent status and relationship or as creating or implying a partnership or joint venture between the City and the District. b. Notices. Notices must be hand delivered or sent by nationally recognized overnight courier or by certified mail, return receipt requested, postage prepaid, addressed to the addresses specified below. Either Party may change its address for receipt of notices by written notice to the other. Notice shall be deemed given upon tender of delivery (in the case of a hand - delivered notice), upon the next business day after delivery to an overnight courier service, or on the third day after deposit in the United States mail. If to the City: City of Ammon 2135 South Ammon Road Ammon, ID 83406 With a copy (which shall not constitute notice) to: Ammon City Attorney Scott R. Hall P.O. Box 15630 Idaho Falls, ID 83405 -1630 If to the District: With a copy to: C. Governing- Law and Choice of Forum. This Agreement and all matters relating hereto shall be governed by, construed and interpreted in accordance with the laws of the State of Idaho. Jurisdiction for any disputes arising out of this Agreement shall be exclusively in the courts of the State of Idaho, located in Bonneville County, Idaho. Each Party Imowingly and voluntarily consents to the jurisdiction of such courts and waives any objection that such venue is inconvenient. d. Entire Agreement. This Agreement contains the entire agreement of the Parties and may not be modified or amended, except by instrument in writing signed by both Parties. 4852- 9917- 7234.1 e. Severability. If any term or provision of this Agreement shall, to any extent, be determined by a court of competent jurisdiction to be void, voidable, or unenforceable, such void, voidable, or unenforceable term or provision shall not affect any other term or provision of this Agreement. f. Waivers. The failure by the City or the District at any time or times hereafter to require strict performance by the other of any of the undertakings, agreements or covenants contained in this Agreement shall not waive, affect or diminish any right of the City of the District hereunder to demand strict compliance and performance therewith. None of the undertakings, agreements, or covenants of the City and the District under this Agreement shall be deemed to have been waived unless such waiver is evidenced by an instrument in writing signed by the Party to be charged specifying such waiver. g. Compliance with Policies. The District will comply, and will take commercially reasonable measures to ensure its faculty and students comply, with the City's acceptable use, privacy and other applicable policies, which the City will provide to the District before they become effective. h. Survival. The covenants and provisions contained in this Agreement which, by their terms, require or contemplate their performance after the expiration or termination of this Agreement shall be enforceable notwithstanding the expiration or termination of this Agreement including, without limitation, all indemnities by either Party. i. Not Recordable. Neither Party shall record this Agreement or any memorandum of this Agreement in the real estate records of any county in Idaho where the Network is located. j. Counterparts. This Agreement may be executed in multiple counterparts, and by each Party on separate counterparts, each of which shall be deemed to be an original but all of which shall together constitute one agreement. k. No Third -Party Beneficiaries. Except as otherwise expressly provided in this Agreement, the terms, covenants and conditions of this Agreement, shall not be construed as being for the benefit of any person who is not a signatory to this Agreement. 1. Excuse of Performance. Notwithstanding anything in this Agreement to the contrary, neither the City nor the District shall be liable or responsible for a delay or failure in performing or carrying out any of its obligations (other than obligations to make payments) under this Agreement caused by Force Majeure (as defined below). i. Definition. The term "Force Maieure" as used in this Agreement shall mean any cause beyond the reasonable control of the City or the District, as applicable, or beyond the reasonable control of any of their respective contractors, subcontractors, suppliers or vendors, including without limitation: 4852 -9917- 7234.1 (1) Acts of God. Acts of God, including, but not necessarily limited to, lightning, earthquakes, adverse weather of greater duration or intensity than normally expected for the job area and time of year, fires, explosions, floods, other natural catastrophes, sabotage, acts of a public enemy, utility outages, acts of government or regulatory agencies, wars, blockades, embargoes, insurrections, riots or civil disturbances; (2) Labor Disputes. Labor disputes, including, but not necessarily limited to, strikes, work slowdowns, work stoppages or labor disruptions, labor or material shortages, or delays or disruptions of transportation; (3) Court Orders. Orders and judgments of any federal, state or local court, administrative agency or governmental body; (4) Change in Law. The adoption of or change in any federal, state or local laws, rules, regulations, ordinances, permits or licenses, or changes in the interpretation of such laws, rules, regulations, ordinances, permits or licenses, by a court or public agency having appropriate jurisdiction after the Effective Date; or (5) Government Approvals. Any suspension, termination, interruption, denial or failure to issue or renew by any government authority or other Party having approval rights of any approval required or necessary hereunder for the construction, installation or operation of the Network or for either Party to perform its obligations hereunder, except when such suspension, termination, interruption, denial or failure to issue or renew results from the negligence or failure to act of the Party claiming the occurrence of an event of Force Majeure. (6) Continuance after Force Majeure Event. If either the City or the District cannot fulfill any of its obligations under this Agreement by reason of Force Majeure, such Party shall promptly notify the other and shall exercise due diligence to remove such inability with all reasonable dispatch; provided, that nothing contained in this Paragraph 8.1. shall be construed as requiring the City or the District to settle any strike, work stoppage or other labor dispute in which it may be involved, or to accept any permit, certificate, license or 4852 -9917- 7234.1 other approval on terms deemed unacceptable to such Party, or to enter into any contract or other undertaking on terms which the Party deems to be unduly burdensome or costly. M. Multiple Copies. Each copy of this Agreement that is signed, by original or facsimile signature, by both the City and the District shall be deemed an original thereof. 4852 -9917- 7234.1 IN WITNESS WHEREOF, the Parties have subscribed their names and seals the day and year first above written. /) OF AMMON, IDAHO Mayor ATTEST:$ y Jerk A SEAL APPROVAL AS TO FORM: /0 A ' C' ttorne BONNEVILLE JOINT UNION SCHOAL DISTRICT #93 CN Board President 4852- 9917 - 7234.1 EXHIBIT "A" NETWORK SERVICES Hillcrest High School to TC Dark $ 8,748 $ 0 Sandcreek Middle School to TC Dark $ 8,748 $ 0 Falls Valley Elementary to TC Dark $ 8,748 $ 0 Lincoln High School to TC Dark $ 8,748 $ 0 Ammon 1Gbps POP Circuit @ TC 1Gbps $420 $ 1,500 If new high school is desired additional costs and discounts will apply. Total NRC for Exhibit "A" $ 1,500 DATED this q,2/ day of SCHOOL DISTRICT: DATED this A I day of 4 aril CITY: By Its: Definition: Dark fiber shall consist of 2 single mode fibers terminated at the required end point addresses as shown in the schedule. 4852- 9917 - 7234.1 EXHIBIT B SERVICE LEVEL AGREEMENTS The City's Services will meet the following service level agreements: 1. Network availability will average 99.99% uptime, measured annually. 2. The mean time to repair outages shall average not more than 4 hours, end -to -end, including local loop. 4852- 9917- 7234.1