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19-47 Resolution No. 19-47 RESOLUTION AUTHORIZING EXECUTION OF A SERVICES AGREEMENT WITH THE BOARD OF TRUSTEES OF NORTHERN ILLINOIS UNIVERSITY (NIU) 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 Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a Services Agreement on behalf of the City of Elgin with the Board of Trustees of Northern Illinois University (NIU) 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 20, 2019 Adopted: March 20, 2019 Omnibus Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk NIUNET SERVICES AGREEMENT Northern Illinois University N I V Department of Information Technology Services Broadband Solutions DeKalb Il,60115 This NIUNET SERVICES AGREEMENT executed Service Order Form,which shall (collectively with each Service Order also be incorporated into this Agreement Form,as defined below shall henceforth as Attachment B (in sequence) and shall be referred to as the"Agreement"),is be made a part hereof by this reference. made by and between the Board of Services may include but are not limited Trustees of Northern Illinois University to the following: ("NIU") and the City of Elgin,a municipal corporation, ("Customer") this 20th day (a) Transport. Network services that of March ,2019. Each of the provide for a point to point aforestated parties shall be known location through the NIUNet individually as a"Party"and collectively infrastructure. NIUNet can as the"Parties." support 100/1000/10000Mb/sec speeds. The Parties agree as follows: (b) Internet Services.NIUNet shall provide a low cost access to its 1. Purpose of NIUNet current service provider for general commodity internet access NIUNet is an initiative of Northern Illinois upon request. University that is designed to provide (c) Co-location Services. NIU can general technical and development provide co-location space in the support,network services and co-location NIU data center for the housing of to other governmental and not-for-profit equipment in a secure and organizations. controlled environment. (d) Storage services. NIU shall provide 2. Services Provided storage as a service upon request. NIU will provide to Customer the services Notwithstanding anything to the contrary outlined in any applicable Service Order stated herein, no payment by Customer Form(s) attached to this Agreement as to NIU shall be due except as stated in a Attachment B ("Services") as may be Service Order Form that is executed by added to from time to time by the Parties the Parties, hereto,and which shall be incorporated into and made a part hereof by this 3. Restrictions reference.During the term of this Agreement,the Parties may agree to (a) Hardware.The NIUNet additional services pursuant to a fully infrastructure is owned by NIU. 1 Customers are not allowed access disclose any information as to equipment operated and owned necessary to satisfy the law, by NIU. regulation or other governmental (b) Installation of equipment. Any request,to operate appropriately, network equipment required to be or to protect itself or its users.NIU installed into the NIUNet will not intentionally monitor or infrastructure will be installed by disclose any private information, authorized NIU personnel only. unless required by law. NIU will authorize and specify (b) Acceptable Use Policy. NIU reserves equipment compatible with the right to remove content or NIUNet on an as needed basis. traffic from the network that (c) Authorized Use. NIUNet network violates the Northern Illinois connections shall only be available University Acceptable Use Policy for use by the Customer to whom ("Acceptable Use Policy") as stated Service is granted.Connections in 'Attachment A,'incorporated may not be shared by any means herein and made a part hereof. including wired or wireless (c) Laws and Policies. Use of the networking except as authorized Services provided must comply by NIU. with all existing Federal,State and municipal rules and regulations. 4. Maintenance (d) Right to amend Policies. NIU reserves the right to amend the (a) Facilities. NIU reserves the right to Acceptable Use Policy at its schedule regular or emergency discretion,provided the changes maintenance on the network do not materially affect the terms equipment. NIU shall use its and conditions of this Agreement. reasonable efforts to provide advance notice for maintenance 6. Payment and shall use reasonable efforts to schedule maintenance during off Customer shall pay for(i) Services set hours. forth on the attached Schedule(s)to this (b) Losses. Customer agrees that NIU Agreement; (ii) any additional Services as shall not be held liable for losses provided in the applicable Service Order incurred due to planned or Form(s); and (iii) applicable maintenance unplanned outages in Service. services at the then-applicable rates. Without limiting the foregoing, Customer 5. Security shall pay all one-time set-up and installation charges,any one-time or (a) Right to Monitor and Control recurring telecommunications service Content NIU shall have no charges (regardless of whether such costs obligation to monitor information are passed through by NIU or billed or material on the system or separately by a telecommunications network. However,NIU shall have provider), related administrative fees the right to monitor the system charged by NIU,and all sales and use electronically to identify and taxes,as well as duties or levies arising in 2 connection with the Services.The annual Agreement before the end of the Customer fee is billed in advance on an term,or if NIU terminates this annual basis,except Customer may elect Agreement because of a violation monthly,quarterly or semi-annual billing by Customer of any material term for an additional administrative fee.The or provision of this Agreement amount of the administrative fee will vary including,but not limited to, with the frequency of the billing.All other Customer's failure to make any amounts will be billed as the service or payment when due,then Customer charge is incurred. Some qualifying shall pay NIU an early termination Customers may be granted extended fee of Three Thousand Dollars payment terms for one-time set-up and ($3,000),which both Parties agree installation charges with addition of an is fair and reasonable and shall not appropriate administrative fee. Payment be construed or deemed as an is due within thirty(30) days from the unfair or unenforceable penalty. receipt of the invoice.Unless superseded Previously paid and one-time or prohibited by applicable provisions of installation charges are not law, Customer will be charged a 0.5%late refundable. In the event Customer charge on the first day of each month on requests NIU to continue providing all invoices remaining unpaid forty-five any portion of the Services beyond (45) days after the date appearing on the the requested termination date, invoice.These payment terms do not Customer agrees to pay NIU for apply to amounts paid to NIU through the those Services at the then- Universal Service Fund (USF) program applicable rates in accordance established by the FCC. with the terms of payment provided in Section 6 above.The 7. Term and Termination above termination charges do not apply to Service moves or (a) Term.The term of this Agreement upgrades. shall be effective from March 1, (c) Termination. Upon termination of 2019 for the greater of a period of dedicated Service with NIU, Five (5)years ("Agreement End whether such termination occurs Date") or the date a Service Order at the end of the initial term or any Form terminates ("Service Order subsequent terms,or as an early End Date"),provided that no termination during an agreement Service Order Form's term shall period, Customer agrees that all IP commence after the Agreement addresses assigned from NIU's End Date. Classless Inter-Domain Routing (b) Early Termination. Either Party may (CIDR) block shall be promptly terminate this Agreement at any returned. In addition,Customer time for any reason upon thirty shall be responsible for (30) days written notice. If transitioning responsibility of Customer terminates this primary and/or secondary DNS to Agreement for any reason other their own DNS server, or that of its than NIU's breach of its new carrier. responsibilities under this 3 (d) Price Adjustments. If NIU initiates WARRANTY IS THE EXCLUSIVE REMEDY reduced Customer Fees to its Non- OF CUSTOMER. NIU SHALL NOT BE Profit Customers during the LIABLE FOR ANY INCIDENTAL OR Agreement period,Customer may CONSEQUENTIAL DAMAGES FOR renew this Agreement at the new BREACH OF ANY EXPRESS OR IMPLIED rates for a term of equal or greater WARRANTY OR ANY IMPLIED length than the balance remaining WARRANTY OF MERCHANTABILITY OR on the initial term. In all instances, FITNESS FOR A PARTICULAR PURPOSE. the renewal will be for a minimum of twelve (12) months and the 9. Rights and obligations of Customer renewal rates will reflect the term discount of the new term period. If (a) Customer is Responsible to Its this Agreement provides Customer Authorized Users.Customer is access via fiber connectivity,the solely responsible for Customer may renew at the new communicating with its own rates for a period coterminous authorized users,and for handling with the initial agreement term. all complaints and trouble reports (e) Fiscal Appropriation Termination. made by its authorized users,with Notwithstanding the foregoing, if, respect to the Services provided for any fiscal year during the term hereunder. of this Agreement,sufficient funds (b) Acceptable Use Restrictions.The for the discharge of the Customer's Acceptable Use Policy applies to obligations under this Agreement the use of all Services provided by are not appropriated and NIU. By accepting Services from authorized,then the Agreement NIU, Customer agrees to comply shall terminate as of the last day of with the AUP as defined in Customer's preceding fiscal year 'Attachment A'and any changes (i.e., December 31st),or when such made from time to time thereto. appropriated and authorized funds Customer also agrees to be are exhausted,whichever is later, responsible for the compliance by without liability to Customer for its users with the AUP. damages, early termination fee or other charges on account of the 10.Rights and Obligations of NIU termination. NIU shall be responsible only for the 8. Limited Warranty operation and maintenance of the Services.Customer shall be NIU will supply,at no charge,new or responsible for maintaining and rebuilt replacements for defective managing its own network that equipment or parts for the initial term of interfaces with the Services. NIU shall this Agreement.This Limited Warranty not be responsible for cabling that does not cover damages due to accident, connects Customer-owned equipment misuse, abuse or negligence by Customer. to NIU equipment or the Services.Any REPAIR OR REPLACEMENT AS interruption in the Services that is PROVIDED UNDER THIS LIMITED caused by the malfunction or 4 interruption of any physical and issue insurance in the State of telecommunications media or facility Illinois and must be rated"A-"or (including,but not limited to cables better in accordance with the latest and fiber optic lines) or by any edition of Best's Insurance Guide malfunction or manufacturer's defects published by A.M. Best Company, Inc. of equipment either provided by NIU or its equivalent. Notwithstanding to Customer or separately purchased anything to the contrary herein,the by Customer will not be deemed a Indemnifying Party shall not be liable breach of NIU's obligations under this under this Section 11 for any Agreement. monetary damages in excess of the aforementioned amount or for any 11. Indemnification and Insurance Claims or occurrences not covered under such general liability coverage. Each Party(the Indemnifying Party for purposes of this Section) shall This Section 11 is subject to applicable indemnify, hold harmless and defend provisions and limitations of Illinois the other Party as well as its law. employees and agents, (collectively "Indemnified Parties") from and 12.Limitation of Liability against any and all claims, damages, losses,liability,suits,actions, CUSTOMER'S ACCESS TO AND USE OF demands,proceedings whether legal THE SERVICES ARE AT ITS SOLE RISK. or administrative and expenses, EXCEPT FOR THE LIMITED including,but not limited to related WARRANTY IN SECTION 8 ABOVE, reasonable attorney's fees THE SERVICES PROVIDED BY NIU (collectively"Claims") attributable to ARE PROVIDED ON AN "AS IS"AND a third party or government agency "AS AVAILABLE"BASIS. NIU DOES against any of the Indemnified Parties NOT WARRANT THAT THE SERVICES to the extent that such third party or WILL BE UNINTERRUPTED OR FREE government Claims arise out of or OF HARMFUL COMPONENTS. EXCEPT relate to (i) any willful misconduct, FOR THE LIMITED WARRANTY IN negligent or tortious act or omission SECTION 8 ABOVE, NIU MAKES NO by the Indemnifying Party; (ii) EXPRESSED OR IMPLIED infringement of intellectual property WARRANTIES. rights or violation of laws and regulations by the Indemnifying Party NIU AND ITS EMPLOYEES ARE NOT (ii)a breach or alleged breach of this LIABLE FOR ANY COSTS OR DAMAGES agreement by the Indemnifying Party. ARISING FROM CUSTOMER'S USE OF THE SERVICES OR THE INTERNET. Each Party shall carry and maintain comprehensive general liability EXCEPT FOR INDEMNIFICATION, insurance in the amount of$2,000,000 DEFENSE AND HOLD HARMLESS per occurrence. The insurance shall OBLIGATIONS PROVIDED FOR be written by and secured from HEREIN AND TO THE MAXIMUM companies approved to do business EXTENT PERMISSIBLE UNDER 5 ILLINOIS LAW, NEITHER PARTY IS this Agreement shall be governed LIABLE TO THE OTHER PARTY FOR by and construed in accordance ANY INDIRECT, INCIDENTAL, with the law of the State of Illinois. EXEMPLARY, MULTIPLE,SPECIAL, Venue for the resolution of any PUNITIVE OR CONSEQUENTIAL disputes or the enforcement of any DAMAGES. rights arising out of or in connection with this Agreement CUSTOMER ASSUMES FULL shall be in the Circuit Court of RESPONSIBILITY AND RISK FOR THE Kane County,Illinois,with jury USE OF THE SERVICES AND THE trial waivable only with the INTERNET,AND IS SOLELY written consent of both Parties at RESPONSIBLE FOR EVALUATING THE the time of trial. ACCURACY,COMPLETENESS,AND (b) Entire Agreement.This Agreement, USEFULNESS OF ALL SERVICES its Attachments, exhibits and the PROVIDED HEREUNDER. NIU shall not Service Order Forms entered into be liable for failure or delay in by the Parties from time-to-time performing its obligations hereunder (all of the aforementioned are if such failure or delay is due to incorporated into and made a part circumstances beyond its reasonable of this Agreement),is the final control,including,without limitation, expression of their agreement with acts of any governmental body,war, respect to the subject matter insurrection,sabotage,embargo,fire, hereof and may not be flood,strike or other labor contradicted by evidence of any disturbance,interruption of or delay prior or contemporaneous in transportation,or inability to obtain agreement.This Agreement raw materials,supplies,or power supersedes and replaces any and used in or equipment needed for all past agreements between the provision of the Services. Parties hereto regarding the subject matter hereof whether This Section 12 is subject to applicable written,oral or implied.This provisions and limitations of Illinois Agreement may not be amended law. except upon the written consent of the Parties. No failure to exercise 13.Data Content and no delay in exercising any right,remedy,or power hereunder NIU is not liable for the content of any shall operate as a waiver thereof, data transferred either to or from nor shall any single or partial Customer via the Services provided by exercise of any right, remedy, or NIU. power hereunder preclude any other or further exercise thereof or 14.Miscellaneous the exercise of any other right, remedy,or power provided herein (a) Governing Law;Jurisdiction.The or by law or in equity.The waiver validity,interpretation, by any Party of the time for enforceability,and performance of performance of any act or 6 condition hereunder shall not context or intent reasonably ought constitute a waiver of the act or to survive the termination or condition itself. expiration of this Agreement,shall (c) Assignment.This Agreement shall be so survive. binding upon and inure to the (h) Waiver of Service. The Parties agree benefit of the Parties and their that service by certified first class respective successors and assigns. U.S.mail to the Legal Customer may not assign this Department/Office of General Agreement without the prior Counsel of the other Party shall written consent of NIU. constitute effective service. (d) Headings;Severability.Headings (i) Execution by Counterparts.This used in this Agreement are for agreement may be executed in reference purposes only and shall counterparts, each of which shall not constitute a part hereof or be an original and all of which affect the meaning or shall constitute one and the same interpretation of this Agreement. If agreement. For the purposes of any provision of this Agreement executing this agreement,any shall be held by a court of signed copy of this agreement competent jurisdiction to be transmitted by fax machine or e- invalid,unenforceable,or void,the mail shall be treated in all manners remainder of this Agreement shall and respects as an original remain in full force and effect. document. The signature of any (e) Counterparts. This Agreement may Party on a copy of this agreement be executed in counterparts,each transmitted by fax machine or e- of which shall be deemed an mail shall be considered for these original, but all of which taken purposes as an original signature together shall constitute one and and shall have the same legal effect the same instrument. as an original signature. Any such (f) Independence. Each Party is faxed or e-mailed copy of this independent of each other and agreement shall be considered to shall not be deemed as an have the same binding legal effect employee,joint venture,affiliate or as an original document. At the partner of the other. request of either Party any fax or (g) Survivability. Sections 11, 12 and e-mail copy of this agreement shall 14(a),along with any payment be re-executed by the Parties in an obligations by Customer under this original form. No Party to this Agreement shall survive its agreement shall raise the use of fax termination or expiration. machine or e-mail as a defense to Notwithstanding the foregoing, this agreement and shall forever any other section or provision of waive such defense. this Agreement,based on its [SIGNATURE PAGE FOLLOWS] 7 IN WITNESS WHEREOF,the Parties hereto have caused this Agreement to be executed and delivered as of the dates below. Board of Trustees of Northern Illinois CITY OF EL Signed: 0" $ 1 l i ' ' I Signed Name:Sarah McGill Name(Printed): Richard G. Katal Title:VP Administration&Finance Title: City Manager and CFO Date Signed: —14g--1C1 Date Signed: March 20, 2019 ATT ST: c i. L/ al14666 City Clerk 8 Attachment A Northern Illinois University Acceptable Use Policy Overview This Policy is a guide to the acceptable use of Services. By Customer.Any Customer 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.Customer 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, Customer 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 Customer.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 in 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. 9 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 Customer,who must take immediate remedial action and inform NIU of its action. NIU will assist the Customer in identifying the nature and source of the inappropriate use and in implementing remedial action if requested. Provided the Customer implements remedial action promptly,NIU will take no further action. If NW is unable to contact Customer or if Customer 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 Customer. Should the situation be considered an emergency,and NIU deems it necessary to prevent further inappropriate activity, NIU may temporarily disconnect a Customer.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 Customer prior to disconnection, and every effort will be made to re-establish the connection as soon as it is mutually deemed safe. 10 Attachment B [Attach final Service Order Form(s)numbered in sequence(i.e..B-1,B-2,B-3,etc.)] 11 SERVICE ORDER FORM B-1 NIU Broadband SoluUanx As a Service Order to the Services Agreement between City of Elgin and NIU commencing March 1, 2019 Attachment: 61 Description: City of Elgin Renewal of NIUNet ISP and G.8032 protection Contact and Notice Information Northern Illinois University ("NIU") !City of Elgin CONTACT: Dorf Admin Services(c/o Matt Parks) COMPANY CONTACT: Jeff Massey PHONE:815-753-1071 _ PHONE: 847-931-5642 EMAIL:DoITAdminServices@niu.edu EMAIL: masseyj@cityofelgin.org PAYMENT ADDRESS: Commercial Accounts Receivable BILLING ADDRESS: Bursars Office 150 Dexter Court Northern Illinois University Elgin, IL 60120-5555 1425 W.Lincoln Highway DeKalb, IL 60115 Billing Information and Service Commitment Period Order Type/Term Renewal /36 month Billing cycle (select one): Annual 3/1/2019-2/28/2022 Actual Service Start and End Date: 3/1/2019-2/28/2022 Service Order Monthly Recurring Charge(select one): 1Gps of Internet access $2000/month G.8032 ring protection for intemet acces $250/month Service Order Non-recurring Charge: n/a Other Charges: n/a Service Description ISP Service connection consists Symmetrical Internet Access. Total cost will be Eighty One Thousand Dollars ($81,000). By signing,Customer and NIU considers all associated requirements of the contractual terms on this specific projec/circuit to be satisfactory Northern Illinois University Customer Si- W 'E1 /th 3/20/19 Signature/Date Signature/Date Sarah McGill /VP Admin &Finance and CFO Richard G. Kozal, City Manager Print Name/Title Print Name/Title