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16-38 Resolution No. 16-38 RESOLUTION AUTHORIZING EXECUTION OF A SERVICES AGREEMENT WITH NORTHERN ILLINOIS UNIVERSITY FOR NIUNET INTERNET SERVICE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Sean R. Stegall, City Manager, be and is hereby authorized and directed to execute Services Agreement on behalf of the City of Elgin with Northern Illinois University for NIUNet internet service, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: March 16, 2016 Adopted: March 16, 2016 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk eft► Ij,\ f`1�� Northern Illinois University (� Department of Information Technology Services -77-Ta-T-7", DeKalb II,60115 This SERVICES AGREEMENT,dated as 4. Maintenance of_Q3/16/16 (collectively with each Service Order Form,as defined ialow,the"Agreement"),is made by and (a) Facilities.NIU reserves the right to schedule regular or between the Boa d of Trustees of Northern Illinois University emergency maintenance on the network equipment. ("NIU")and CI ii-y nc'E lS'bei ("Affiliate"). NW's general policy for scheduling maintenance is with advanced warning during off hours. 1. Purpose of NIUNet (b) Losses.NIU cannot be held liable for losses incurred due to planned or unplanned outages in service. NIUNet is an initiative of Northern Illinois University that is designed to provide general technical and development 5. Security support,network services and co-location to other governmental and not-for-profit organizations affiliated with (a) Right to Monitor and Control Content NIU has no Northern Illinois University. obligation to monitor information or material on the system or network.However,Affiliate agrees that 2. Services Provided NW has the right to monitor the system electronically from time to time to disclose any NIU will provide to Affiliate the following services as mutually information as necessary to satisfy the law, agreed upon and set forth in a Service Order Form("Services"): regulation or other governmental request,to operate properly,or to protect itself or its users.NIU (a) Transport Network services that provide for a point to will not intentionally monitor or disclose any private point location through the NIUNet infrastructure. information unless required by law. NIUNet can support 100/1000/10000Mb/sec (b) Acceptable Use Policy.NIU reserves the right to remove speeds content or traffic from the network that violates the (b) Internet Services.NIUNet can provide a low cost access Northern Illinois University Acceptable Use Policy as to its current service provider for general defined in'Attachment A'. commodity internet access. (c) Laws.Use of the services provided must comply with (c) Co-location Services.NIU can provide co-location space all existing Federal,State and Local rules and in the N1U data center for the housing of equipment regulations. in a secure and controlled environment. (d) Right to amend Acceptable Use Policy.NIU reserves the (d) Helpdesk Services. NIU can provide services for right to amend the Northern Illinois University helpdesk administrative support and first level Acceptable Use Policy as defined in'Attachment A'. support for many commonly supported applications and systems. 6. Payment (e) Monitoring Services.NIUNet can offer alerting and monitoring service to devices connected through the Affiliate shall pay for(i)Services set forth on the attached NIUNet infrastructure.Monitoring services provide Schedule(s)I to this Agreement;(ii)any additional Services as an on-call reporting system that allows the end-user provided in the applicable Service Order Form(s);and(iii) notification of failing devices on the network. applicable maintenance services at the then-applicable rates. (fJ Filtering Services.NIUNet can offer access to the NIU Without limiting the foregoing,Affiliate shall pay all one-time SPAM and Virus filtering for E-mail. set-up and installation charges,any one-time or recurring (g) IT Development Services.NIU can assist in the telecommunications service charges(regardless of whether development and deployment of application design such costs are passed through by NW or billed separately by a for specific needs. telecommunications provider),related administrative fees charged by NIU,and all sales and use taxes,as well as duties or 3. Restrictions levies arising in connection with the Services.The annual Affiliate fee is billed in advance on an annual basis,except (a) Hardware.The NIUNet infrastructure is owned by NIU. Affiliate may elect monthly,quarterly or semi-annual billing for Affiliates are not allowed access to equipment an additional administrative fee.The amount of the operated and owned by NIU. administrative fee will vary with the frequency of the billing. (b) Installation of equipment Any network equipment All other amounts will be billed as the service or required to be installed into the NIUNet charge is incurred.Some qualifying Affiliates may be granted infrastructure will be installed by authorized NIU extended payment terms for one-time set-up and installation personnel only.NIU will authorize and specify charges with addition of an appropriate administrative fee. equipment compatible with NIUNet on an as needed Payment is due within thirty(30)days from the date appearing basis. on the invoice.Affiliate will be charged a 1.5%late charge on (c) Authorized Use.NIUNet network connections are only the for use by the authorized party to which service is first day of each month on all invoices remaining unpaid forty- granted.Connections may not be shared by any five(45)days after the date appearing on the invoice.These means including wired or wireless networking payment terms do not apply to amounts paid to NIU through except as authorized by NIU. the USF program. 7. Term and Termination rates will reflect the term discount of the new term period.If this Agreement provides Affiliate access (a) Term.The term of this Agreement begins on the first via fiber connectivity,the Affiliate may renew at the date that network connectivity is provided by NIU, new rates for a period coterminous with the initial and shall be fora period of 3 Y-'ft S ( ) agreement term. years: (b) Renewals.Unless either party gives a written 8. Limited Warranty termination notice at least thirty(30)days prior to the end of the current term(whether it's the initial NIU will supply,at no charge,new or rebuilt replacements for term or a renewal term),the term of this Agreement defective equipment or parts for the initial term of this will be renewed automatically for a similar term as Agreement This Limited Warranty does not cover damages the term which is then in effect due to accident,misuse,abuse or negligence.REPAIR OR (c) Early Termination.If Affiliate terminates this REPLACEMENT AS PROVIDED UNDER THIS LIMITED Agreement for any reason other than NIU's breach WARRANTY IS THE EXCLUSIVE REMEDY OF AFFILIATE.NIU of its responsibilities under this Agreement before SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR the end of the term,or if NIU terminates this CONSEQUENTIAL DAMAGES FOR BREACH OF ANY EXPRESS Agreement because of a violation by Affiliate of any OR IMPLIED WARRANTY OR ANY IMPLIED WARRANTY OF term or provision of this Agreement including,but MERCHANTABILITY OR FITNESS FOR A PARTICULAR not limited to,Affiliate's failure to make any PURPOSE. payment when due,then Affiliate shall be responsible for and shall pay(i)all 9. Rights and obligations of Affiliate telecommunications service charges applicable through the date service is actually terminated, (a) Affiliate is Responsible to Its Authorized Users.Affiliate regardless of the effective date of termination of the is solely responsible for communicating with its own Agreement,and any related administrative fees authorized users,and for handling all complaints charged by NIU,(ii)any additional early termination and trouble reports made by its authorized users, penalties or charges assessed by the with respect to the Services provided hereunder. telecommunications carrier,(iii)the balance of any (b) Acceptable Use Restrictions.NIU's Acceptable Use remaining fiber access fees or amortized install Policy("AUP")applies to the use of all Services charges,(iv)all costs associated with disconnecting provided by NIU,including any unsupervised Affiliate's service and removing any equipment from anonymous network access offered by Affiliate.By Affiliate's site(charged at the then-applicable rates accepting Services from NIU,Affiliate agrees to for maintenance),(v)any outstanding amounts comply with the AUP as defined in'Attachment A' previously incurred for maintenance,(vi)if Affiliate and any changes made from time to time thereto. previously received a discount as a result of Affiliate also agrees to be responsible for the ' agreeing to a term longer than one(1)year,an early compliance by its users with the AUP. termination penalty equal to the total amount of the discount,as calculated without any reduction or 10. Rights and Obligations of NIU proration to reflect the point during the term at which the termination occurs,and(vii)if Affiliate NIU shall be responsible only for the operation and previously received extended payment terms for maintenance of the Services.Affiliate shall be responsible one-time set-up and installation fees,the balance for maintaining and managing its own network that remaining plus any assessed administrative charge interfaces with the Services.NIU shall not be responsible are due and payable upon termination.One-time for cabling that connects Affiliate-owned equipment to installation charges are not refundable.In the event NIU equipment or the Services.Any interruption in the Affiliate requests NIU to continue providing any Services that is caused by the malfunction or interruption portion of the Services beyond the requested of any physical telecommunications media or facility termination date,Affiliate agrees to pay NIU for (including,but not limited to cables and fiber optic lines) those Services at the then-applicable rates in or by any malfunction or manufacturer's defects of accordance with the terms of payment provided in equipment either provided by NIU to Affiliate or Section 6 above.The above termination penalties do separately purchased by Affiliate will not be deemed a not apply to service moves or upgrades. breach of NIU's obligations under this Agreement (d) Termination.Upon termination of dedicated service with NIU,whether such termination occurs at the 11. Indemnification end of the initial term or any subsequent terms,or as an early termination during an agreement period, Affiliate will indemnify,save harmless and defend NIU Affiliate agrees that all IP addresses assigned from and all of NIU's members and affiliates,as well as their NIU's CIDR block shall be promptly returned.In respective employees,officers,directors and agents addition,Affiliate shall be responsible for (collectively"Indemnified Parties")from and against any transitioning responsibility of primary and/or claims,damages,losses,liabilities,suits,actions, secondary DNS to their own DNS server,or that of demands,proceedings(whether legal or administrative) its new carrier. and expenses(including,but not limited to reasonable (e) Price Adjustments.If NIU initiates reduced Affiliate attorney's fees incurred with or without suit,in Fees to its Non-Profit Affiliates during the arbitration or mediation,on appeal or in a bankruptcy or Agreement period,Affiliate may renew this similar proceeding)(collectively"Claims")threatened, Agreement at the new rates for a term of equal or asserted,or filed by a third party against any of the greater length than the balance remaining on the Indemnified Parties to the extent that such third party initial term.In all instances,the renewal will be for a Claims arise out of or relate to(i)the breach or alleged minimum of twelve(12)months and the renewal breach of this Agreement by Affiliate;(ii)any negligent or tortious act or omission to act of Affiliate;or(iii)any 13. Data Content claim that the data content delivered by Affiliate via the Services provided by NIU under this Agreement NIU is not liable for the content of any data transferred constitutes an infringement of any confidential either to or from Affiliate via the Services provided by information,trade secret,patent,copyright,trademark, NIU,nor for any loss or damage,whether personal, - trade name or other legal right of any third party. material,or financial,suffered by Affiliate as a direct or indirect consequence of the Services provided by NIU. 12. Limitation of Liability 14. Miscellaneous AFFILIATES ACCESS TO AND USE OF THE SERVICES ARE AT ITS SOLE RISK EXCEPT FOR THE LIMITED (a) Governing Law;Jurisdiction.The validity, WARRANTY IN SECTION 8 ABOVE,THE SERVICES interpretation,enforceability,and performance of PROVIDED BY NIU ARE PROVIDED ON AN"AS IS"AND this Agreement shall be governed by and construed AS AVAILABLE"BASIS. NIU DOES NOT WARRANT THAT in accordance with the law of the State of Illinois. THE SERVICES WILL BE UNINTERRUPTED OR FREE OF (b) Entire Agreement.This Agreement,and the Service HARMFUL COMPONENTS. EXCEPT FOR THE LIMITED Order Forms entered into by the Parties from time- WARRANTY IN SECTION 8 ABOVE,NIU MAKES NO to time,is the final expression of their agreement EXPRESSED OR IMPLIED WARRANTIES. NIU AND ITS with respect to the subject matter hereof and may EMPLOYEES ARE NOT LIABLE FOR ANY COSTS OR not be contradicted by evidence of any prior or DAMAGES ARISING FROM AFFILIATES USE OF THE contemporaneous agreement This Agreement may SERVICES OR THE INTERNET,INCLUDING ANY not be amended except upon the written consent of INDIRECT,INCIDENTAL,EXEMPLARY,MULTIPLE, the parties.No failure to exercise and no delay in SPECIAL,PUNITIVE OR CONSEQUENTIAL DAMAGES. exercising any right,remedy,or power hereunder AFFILATE ASSUMES FULL RESPONSIBILITY AND RISK shall operate as a waiver thereof,nor shall any FOR THE USE OF THE SERVICES AND THE INTERNET, single or partial exercise of any right,remedy,or AND IS SOLELY RESPONSIBLE FOR EVALUATING THE power hereunder preclude any other or further ACCURACY,COMPLETENESS,AND USEFULNESS OF ALL exercise thereof or the exercise of any other right, SERVICES PROVIDED HEREUNDER If Affiliate is remedy,or power provided herein or by law or in dissatisfied with the Service(s)or with any terms, equity.The waiver by any party of the time for conditions,rules,policies,guidelines or practices of performance of any act or condition hereunder shall Provider in operating the Services(s),Affiliate's sole and not constitute a waiver of the act or condition itself. exclusive remedy is to terminate this Agreement in (c) Assignment.This Agreement shall be binding upon and accordance with Section 7,above,and discontinue using inure to the benefit of the Parties and their the Service(s).NIU's cumulative liability to Affiliate or any respective successors and assigns.Affiliate may not third party for any and all claims relating to the use of the assign this Agreement without the prior written equipment and Services provided by NIU shall in no event consent of NIU. exceed the amount of the annual Affiliate fees paid by (d) Headings;Severability.Headings used in this Affiliate to NIU during the twelve(12)month period Agreement are for reference purposes only and shall ending on the date of the event giving rise to the claim. not constitute a part hereof or affect the meaning or NIU shall not be liable for failure or delay in performing interpretation of this Agreement If any provision of its obligations hereunder if such failure or delay is due to this Agreement shall be held by a court of competent circumstances beyond its reasonable control,including, jurisdiction to be invalid,unenforceable,or void,the without limitation,acts of any governmental body,war, remainder of this Agreement shall remain in full insurrection,sabotage,embargo,fire,flood,strike or force and effect other labor disturbance,interruption of or delay in (e) Counterparts.This Agreement may be executed in transportation,or inability to obtain raw materials, counterparts,each of which shall be deemed an supplies,or power used in or equipment needed for original,but all of which taken together shall provision of the Services. constitute one and the same instrument IN WITNESS WHEREOF,the Parties hereto have caused this Agreement to be executed and delivered as of the date first written above. i Nor i no`. ; itY By: 1(101 Pr _ • Sean R. tegall Print . Prt ted Na rL� X' Title: City Manager Tit} . c. 0, 1r..a ►'� Date Signed: . Date Signed: March 16. 2016 Alternate Attachment A Northern Illinois University Acceptable Use Policy Overview This Policy is a guide to the acceptable use of NIU network facilities and services(Services).Any Member or Affiliate organization or individual connected to NIU's network in order to use it directly,or to connect to any other network(s),must comply with this policy and the stated purposes and Acceptable Use policies of any other network(s)or host(s)used.Each Member and Affiliate organization is responsible for the activity of its users and for ensuring that its users are familiar with this policy or an equivalent policy.In addition,each Member and Affiliate is encouraged to maintain and enforce its own Acceptable Use policies.The provisions of this policy govern all use of the Services,including any unsupervised anonymous network access offered by Members or Affiliates.The following guidelines will be applied to determine whether or not a particular use of the Services is appropriate: (1) Users must respect the privacy of others.Users shall not intentionally seek information on,or represent themselves as, another user unless explicitly authorized to do so by that user.Nor shall Users obtain copies of,or modify files,other data, or passwords belonging to others. (2) Users must respect the legal protection applied to programs,data,photographs,music,written documents and other material as provided by copyright,trademark,patent,licensure and other proprietary rights mechanisms. (3) Users must respect the integrity of other public or private computing and network systems.Users shall not intentionally develop or use programs that harass other users or infiltrate any other computer,computing system or network and/or damage or alter the software components or file systems of a computer,computing system or network. (4) Use should be consistent with guiding ethical statements and accepted community standards.Use of the Services for malicious,fraudulent,or misrepresentative purposes is not acceptable. (5) The Services may not be used in ways that violate applicable laws or regulations. (6) The Services may not be used in a manner that precludes or significantly hampers network access by others.Nor may the Services be used m a manner that significantly impairs access to other networks connected to NIU. (7) Connections which create routing patterns that are inconsistent with the effective and shared use of the Services may not be established. (8) Users are prohibited from sending unsolicited advertising,whether commercial or informational in nature to addresses that have not specifically requested such material. (9) Repeated,unsolicited and/or unwanted communication of an intrusive nature is strictly prohibited.Continuing to send e- mail messages or other communications to an individual or organization after being asked to stop is not acceptable. The intent of this policy is to identify certain types of uses that are not appropriate,but this policy does not necessarily enumerate all possible inappropriate uses.Using the guidelines given above,NIU may at any time make a determination that a particular use is not appropriate. NIU will not monitor or judge the content of information transmitted via the Services,but will investigate complaints or abusive data stream patterns of possible inappropriate use.In the course of investigating complaints,NIU staff will safeguard the privacy of all parties and will themselves follow the guidelines given in this policy and in NIU's Privacy Policy.NIU will only release sensitive,confidential or personally identifiable information to third parties when required by law,or when in NIU's judgment,release is required to prevent serious injury or harm that could result from violation of this policy. Remedial Action When NIU learns of possible inappropriate use,NIU staff will notify the Member or Affiliate responsible,who must take immediate remedial action and inform NIU of its action.NIU will assist the Member or Affiliate in identifying the nature and source of the inappropriate use and in implementing remedial action if requested.Provided the Member or Affiliate implements remedial action promptly,NIU will take no further action.If NIU is unable to contact the Member or Affiliate,or if the Member or Affiliate is unable to implement remedial action,NIU reserves the right to pursue remedial action independently.Wherever possible,NIU will pursue remedial action with the least impact to the overall service for the Member or Affiliate.Should the situation be considered an emergency,and NIU deems it necessary to prevent further inappropriate activity,NIU may temporarily disconnect a Member or Affiliate.An emergency is defined as:"Serious security incidents that require immediate attention to prevent harm to an individual,to protect information from loss or damage that would be difficult or impossible to correct or to deal with serious on-going denial of service attacks."If temporary disconnection is deemed necessary by NIU staff,every effort will be made to inform the Member or Affiliate prior to disconnection,and every effort will be made to re-establish the connection as soon as it is mutually deemed safe. 11'x , Northern Illinois University Date: 12110/2016 Information Technology Services Prepared For Elgin City ' ' ,' DeKalb,II 60115 Contract#: KRF20161210A !LV C www.its.niu.edu Description: Internet Bandwidth&G.8032 Ring "� ""_ -` "r"."1 Contract for NIUNet Services One-Time NRC Annual Total 1 Gbps Internet Bandwidth n/a $24,000.00 $24,000.00 G.8032 Ring Protection Circuit n/a _ $3,000.00 $3,000.00 Total Costs Annual $27,000.00 Prepared by: Kevin Finley 815-753-7272 kfinlev @niu.edu PO# Date: Customer Signature: Authorized Vendor Signature: Email to:kfinley @niu.edu Preferred Annual Billing Period circle one (7/1-6/30)or(1/1-12/31) 1 Gbps NIUNet Internet bandwidth upgrade for current customer. G.8032 Ring Protection service included. $27,000 invoiced annually. Page 1 of 1