HomeMy WebLinkAboutresolution.council.040-19 RESOLUTION #40
(Series of 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND NORTHWEST COLORADO COUNCIL OF GOVERNMENT
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON
BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract for the
MeetMe Center between the City of Aspen and Northwest Colorado Council of
Governments a true and accurate copy of which is attached hereto as Exhibit " A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract
for the MeetMe Center between the City of Aspen and Northwest Colorado
Council of Governments a copy of which is annexed hereto and incorporated
herein, and does hereby authorize the City Manager to execute said agreement on
behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 22nd day of April, 2019.
i
Steven SL on, Mayor
I, Linda Manning, duly appointed and acting City lerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held April 22, 2019.
Xnda anning, City Clerk
Project THOR Meet Me Center Host Agreement
This Agreement, dated April 1, 2019 2019 (the "Effective Date"), is between the
Northwest Colorado Council of Governments (the "NWCCOG") located at 249 Warren
Avenue, Silverthorne Colorado, and City of Aspen, (the "Host") located at 130 South
Galena, St., Aspen, CO, referred to collectively herein as the "Parties."
Background
This Agreement provides for the provision of Middle Mile Services to Host by the
NWCCOG.
WHEREAS, the NWCCOG desires to:
• continue to extend technical support to NWCCOG communities seeking
local solutions to meet local broadband needs and help those
communities continue to innovate and collaborate on solutions tailored to
meet those needs through a robust, affordable, resilient middle mile
network;
• provide leadership and promotion of the Project THOR Middle Mile
Broadband Network ("Network"), as generally described in Exhibit B —
Network (Diagram) and owned by NWCCOG on behalf of participating
Project THOR communities, to NWCCOG members and other
governmental and non-governmental organizations who may benefit in the
future from Project THOR;
• contract with a "Network Operator" to design, operate, and manage the
Network, including without limitation, the provision of Services through the
Network to the Host;
• provide guidance to the Network Operator on requirements and needs for
the network as created and derived from the NWCCOG Broadband
Steering Committee;
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• review network development, pricing, and network performance data;
• serve as a channel to state, local government, and other partners on the
status, subscription, experiences, and outcomes of the Network;
• deliver outreach to additional Colorado partners to ensure expansion of
the Network to support adjacent economic development regions, the State
of Colorado, and public safety; and continue to seek such connections to
increase the resiliency of Project THOR with additional redundant
connections;
• support and obtain funding for the Network, if necessary, to design and
build network elements to achieve the objectives of the Network and
Network users;
• report on Network performance, utilization, enhancement, and
maintenance.
and
WHEREAS, the Host desires to:
• own and maintain a local Project THOR Meet Me Center ("MMC');
• fund and construct that Meet Me Center per Project THOR network
specifications, or dedicate equivalent space in an already constructed
MMC;
• enter into and maintain contracts with NWCCOG to be billed through the
Network Operator for the Monthly Recurring Costs for the Project THOR
Network and Network Transport, and optionally with the Network Operator
for specially negotiated rates for bandwidth;
• connect to and utilize the Services of the Network in compliance with the
requirements from NWCCOG detailed below;
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• participate in the NWCCOG Broadband Steering and Project THOR
Committees as appropriate;
• support NWCCOG by promoting broadband connections through the
Network to local government, schools and other public entities and ISPs
throughout Northwest Colorado to connect and obtain benefits from the
Network;
• advise the Network Operator and NWCCOG on evaluation and expansion
of connections, and network performance and scheduling for moves,
adds, and changes to the Network as they affect the participants in the
Network to the greater good of participating communities; and
• enter into this contractual agreement for the initial three year period with
the option of additional periods to provide local match for Colorado
Department of Local Affairs ("DOLA") grant funds secured by NWCCOG
for the purpose of purchasing equipment for Project THOR construction to
bring the network to local Meet Me Center Host communities, as well as to
commit to make monthly recurring payments so that NWCCOG may enter
into a 10-year Fiber Lease with the Colorado Department of
Transportation ("CDOT") with local matching funds from MRC for a second
DOLA grant to cover initial CDOT fiber lease period.
Accordingly, in consideration of the mutual promises stated in this Agreement, the
parties agree as follows:
AGREEMENT
1. DEFINITIONS
1.1. The terms defined in the preamble and recital have their assigned
meanings, and each of the following terms has the meaning assigned to it:
"Broadband Service" means the bandwidth that Host may purchase
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from Network Operator or another carrier that connects to the greater
internet.
"Broadband Steering Committee" means the standing committee of the
NWCCOG that has given direction to the establishment of Project THOR.
"Community Anchor Institutions" or "CAI" means governmental,
nonprofit, educational and similar entities including by way of illustration
and not limitation: schools, libraries, hospitals and other medical providers,
public safety entities, institutions of higher education, governmental
entities, rural electric cooperatives, and community support organizations
that facilitate greater use of broadband by vulnerable populations,
including low-income, the unemployed, and the aged.
"Customer Premises Equipment" or "CPE" means any equipment
required to attach to the Network, including receiving radio and associated
power hardware, but does not include customer routers and customer
networking equipment.
"Internet Service Provider" or "ISP" means an entity providing retail last
mile service to end user subscribers.
"Maintenance" means work that must be performed upon or to the
network to ensure the continuity of an acceptable signal transmitted
through wireless technology and/or fibers (in conformance with the
manufacturer's specifications), or to ensure the safety and reliability of the
assets.
"Middle Mile" means the network connection between the last mile and
greater Internet.
"MRC" means the monthly recurring cost of a Service which will be as set
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forth in Section 4or as agreed upon by the Parties and documented on a
Service Order, as applicable.
"Network Operator" means the entity retained by NWCCOG to provide
Service on the Network to MMC hosts.
"NRC" means a one-time, non-recurring cost with respect to a Service
which will be as set forth in Section 4 or as agreed upon by the Parties
and documented on a Service Order, as applicable.
"Project THOR Meet Me Center" or "MMC" means the Meet Me Centers
owned by the Meet Me Center Host and future Meet Me Center hosts that
may contract with the NWCCOG as part of expansion of Network.
"Project THOR Steering Committee" means a future committee
comprised of the Project THOR Meet Me Center Hosts, with a governance
framework to be established, which will provide guidance to the NWCCOG
regarding the direction of the project in the future. Each MMC Host will
have at least one member on the Steering Committee.
"Service" means Transport, andBroadband Service and other Network-
enabled services that the parties agree, per the terms of this Agreement,
will be made available to MMC Hosts.
"Service Order" means the order form representing a specific Service or
Duty to be provided for a defined period to MMC Hosts by the Network
Operator.
"Transport", "Transport Service" or "Port to Port Service" means the
intra-network traffic between MMC Host locations independent of network
traffic connecting to the internet.
"Transport Packets" means a formatted unit of data carried by a packet-
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switched network.
2. SCOPE OF AGREEMENT
2.1. Project THOR Network: The NWCCOG shall provide access to the
Network to the Network Operator, who shall plan for and execute future
Network expansions with input and direction from the NWCCOG. The
NWCCOG is financially responsible for the Network and Network
Maintenance. The Network Operator will manage the day-to-day
operations and maintenance of the Network. Other Network Providers
may subsequently provide Broadband Service through the Network, at the
discretion of the NWCCOG.
2.2. Meet Me Center Host: The Meet Me Center Host shall function as a
community-facing organization for the Network. The Host is responsible
for providing the Meet Me Center per NWCCOG standards; reselling of
the bandwidth that it has purchased through the Network to Community
Anchor Institutions, Internet Service Providers, local governments, and
other regional authorities in the area(s) it serves; and bringing more of
such customers to the Network to help lower aggregate bandwidth prices
for all involved. The MMC Host may resell Services offered through the
Network, and may, in its discretion, provide Broadband Service through
the Network to end user subscribers. The MMC Host shall determine the
pricing for Services it resells, subject to the limitations in Section 6.1.
2.3. Customer Premises Equipment: Host may choose to offer, for sale or
lease, customer premises equipment (CPE) and services, such as
customer premises wiring and customer premises equipment which lie
outside the scope of this Agreement.
2.4. Host Costs: Host will execute and maintain all contracts with their
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regional Community Anchor Institutions, ISPs, and other entities that want
to utilize the MMC Host's bandwidth. MMC Host will maintain an accurate
database of customers and Services sold from the MMC. Host is
responsible for anchor customer acquisition costs and contracting with
these customers. The Host may recover costs through reselling
bandwidth from the MMC. Host is responsible for building or assisting the
anchor customers with direction in building any network infrastructure
required to the MMC, providing the NWCCOG authorizes any required
interface with the Network.
2.5. Accuracy of Statements: MMC Host will make accurate representations
and statements regarding the Network that are consistent with the
representations and statements made in this Agreement and will portray
the Network positively to Customers or the public. MMC Host will first
address any concerns to Network Operator. If MMC Host is unsatisfied
with Network Operator's response, MMC will address such concerns to
NWCCOG at a recorded public session.
2.6. Meetings: NWCCOG will establish and maintain a Project THOR Steering
Committee or board comprised of Project THOR MMC Host
representatives to provide feedback and input on Project THOR budget
and decisions, including without limitation, establishment of the Project
THOR budget. NWCCOG will establish meeting schedule and location for
regular meetings and will convene meetings as needed to provide timely
direction or approvals on policies impacting Network operation. MMC Host
will participate in NWCCOG meetings as necessary. NWCCOG will work
with Network Operator on items requiring approval in a timely manner.
2.7. Project THOR Budget: NWCCOG will establish a Project THOR budget,
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with monies to be used on defined project expenses.
2.8. Customer Support: MMC Host will be responsible for customer support
in connection with any of the entities to which it sells Services. MMC Host
is responsible for providing, either directly or through a qualified third party
an adequate number of qualified, courteous, knowledgeable and helpful
staff to provide effective and satisfactory service in all contacts with the
Customer and Network Operator.
2.9. Acceptable Use Policies: Upon recommendation of the Project THOR
Steering Committee, the NWCCOG may adopt Acceptable Use Policies
with respect to the Network, and MMC Host shall abide by any such
policies of which it has notice.
2.10. NWCCOG Customer Support: The NWCCOG is responsible for
managing its contract obligations with Network Operator related to
customer care issues impacting the NWCCOG elements of the Network,
including but not limited to Middle Mile Network Services and SLA
administration as shown on Exhibit C-SLA.
2.11. Meet Me Center Host Locations and Equipment: The MMC Host will
fund, construct, and own space, or dedicate equivalent space for a Project
THOR Meet-Me Center that meets Project THOR network specifications.
MMC Host will purchase, install and maintain MMC Equipment. This
equipment is defined in the MMC Equipment Specification in EXHIBIT D-
MEET ME CENTER EQUIPMENT SPECIFICATIONS. NWCCOG will
issue Request for Proposals (RFP) for required MMC Equipment. The
NWCCOG will issue and maintain up-to-date network specifications for
Project THOR MMC Locations. These specifications will be determined by
the NWCCOG and all Meet Me Center Hosts.
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2.12. Middle Mile Network Equipment: The NWCCOG will select the brand
and model of equipment used to provide the Project THOR Middle Mile
Network, purchase the equipment used to provide the Middle Mile
Network, and will be responsible for expenses incurred by operation of the
Project THOR Middle Mile Network. NWCCOG will work closely with
Network Operator to anticipate Network equipment and software
replacement and upgrades and seek funding from all MMC Hosts as
necessary.
2.13. Access: Host will permit the NWCCOG reasonable access to the MMC to
access and maintain their equipment in the MMC. MMC Host shall
provide a list of contact individuals to the Network Operator and
NWCCOG with whom access issues will be coordinated. MMC Host shall
maintain its Meet Me Center to the original specifications set forth in
Exhibit D-MEET ME CENTER EQUIPMENT SPECIFICATIONS.
3. PERFORMANCE
3.1. The Host represents and warrants that it owns the Meet Me Center
Location and that it has the power and authority to enter into and perform
this Agreement, and that its performance of this Agreement will not
infringe upon or violate the rights of any third party, nor violate any federal,
state, or municipal laws ("Applicable Law").
3.2. Host will perform its duties under this Agreement, such performance to be
excused only due to a force majeure condition as described in Section 10.
4. PAYMENT
4.1. The Host shall purchase Project THOR Middle Mile Service from the
Network in accordance with the payment provisions below.
4.2. MMC Host location in 130 South Galena St, Aspen, CO is a Class 4
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location.
4.3. At the time of executing this Agreement, Host shall pay the Total Non-
Recurring Cost (NRC) for network establishment for Project THOR of
$51,151.49 for Aspen to NWCCOG. The parties understand and agree
that the NRC pricing is based upon the nine (9) initial MMC Host entities
executing a MMC Host Contract with NWCCOG. If fewer entities enter
into a MMC Host Contract, costs will necessarily increase. Should that
occur, the MMC Host may continue to operate under this Agreement,
subject to modification of this Section 4.3 to reflect the increased NRC.
Alternatively, the MMC Host may terminate this Agreement without
penalty, by providing written notice of such termination to the NWCCOG
within 30 days of receiving revised NRC pricing. Even if MMC Host
prefers to remain obligated by this Agreement, subject to increased costs
as described herein, the parties understand that if enough entities fail to
sign a MMC Host Contract, the operation of the Network may no longer be
viable, and in such case, the NWCCOG may terminate this Agreement
without penalty by providing written notice of such termination to the MMC
Host within 30 days of the revised NRC pricing.
4.4. Host site 130 South Galena, St, Aspen, CO is a Class 4 with Project
THOR Monthly-Recurring Costs (MRC) of $ 5,061.54. MRC will be paid
as billed beginning June 1, 2019.
4.5 Network Port to Port pricing on the Network between MMCs for Project
THOR Hosts is set at an initial rate of $250 per managed port not at
purchasing host's MMC per month.
4.6 MRCs will be charged in advance, biannually for six (6) months of Network
MRC in June and December of each year for the upcoming 6-month
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period.
4.7 At NWCCOG's sole discretion in consultation with the Project THOR
Steering Committee, there may be an annual adjustment to the MRC fee
based on the overall financial stability and revenues received on the
network. Future adjustments to rates or Services purchased shall be
documented in mutually executed Service Orders, subject to the terms
and conditions of this agreement.
4.8 Meet Me Center Host will have access to specially negotiated rates for
bandwidth. MMC Host acknowledge that the NWCCOG may annually
adjust these rates depending on the amount of Meet Me Center Hosts
participating in Project THOR in consultation with the Project THOR
Steering Committee. Optional Bandwidth can be purchased from Network
Operator at the bulk rates detailed in Exhibit A-OPTIONAL BANDWIDTH
RATES as it may be amended from time to time.
5. TERM OF AGREEMENT
5.1. Initial Term: The initial term of this Agreement shall commence on April 1,
2019 (the "Effective Date") and the initial term shall terminate on
December 31, 2022. This initial three (3) year term is required by DOLA as
part of the Project THOR program grants received and managed by
NWCCOG. The parties understand and agree that notwithstanding the
commencement date of this Agreement and the beginning of payment of
the MRC, the startup of the Project THOR Network depends upon
completion of various MMCs and fiber builds, and will occur over a 3 — 6-
month period, after which time the parties expect that all entities will have
completed construction work to facilitate the Services anticipated herein
from Project THOR.
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5.2. Renewal: Unless otherwise terminated as provided in Section 11, this
Agreement will automatically renew for up to five (5) additional three (3)
year terms unless notice is received 180 days prior to the end of each
three (3) year term.
6. OPEN ACCESS
6.1. Open Network: The NWCCOG has negotiated bulk pricing for bandwidth
and service level agreements with Network Operator for MMC hosts.
However, Host acknowledges that Network is governed by open access
principles, and therefore Hosts are free to contract with another provider
for Broadband Service. Because Network is an Open Access Network,
while Host is free to contract with another provider for Broadband Service,
all such contracts are subject to the requirement that if the Host enters into
any agreement with a provider for Services on the Network, it must make
comparable offerings to any other provider on comparable terms and
conditions. Notwithstanding the foregoing, in order to resell Broadband
Service, the Host is required to purchase its Transport Services from the
Network.
6.2. Network Neutrality: Host acknowledges that the Network shall be
governed by the principles of network neutrality. Therefore, Host will not
block, throttle, or prioritize internet content or applications or require that
customers pay different or higher rates to access specific types of content
or applications, and if Host enters into any agreements for the provision of
Service using the Network, any such agreement will mandate the same
requirement.
7. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER, OR ANY OF THEIR
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RESPECTIVE AGENTS, REPRESENTATIVES, EMPLOYEES FOR ANY LOST
REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES,
INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES,
LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY
OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE.
8. ASSIGNMENT AND MODIFICATION
8.1. Assignment: Host's obligations under this Agreement may not be
assigned or transferred to any other person, firm, or corporation without
prior written consent of NWCCOG.
8.2. Transfer: Should Host choose to terminate ownership or operation of the
MMC, Host will advise NWCCOG and make all best efforts to transition
ownership and control of the MMC to an agreeable party who will either
assume the obligations of this Agreement, or otherwise contract with
NWCCOG and the Network Operator to ensure continuity of operations
and Services to NWCCOG and MMC subscribers. Pursuant to Sections
5.1 and 11.1, the Parties understand and agree that this Agreement may
not be transferred by the Host during the first three (3) years of its term,
unless the transferee agrees to comply with all terms, conditions and
obligations of this Agreement for the three (3) year term.
8.3. Modification: The Agreement may be modified only if the amendment is
made in writing and is signed by both Parties.
9. Confidentiality
9.1. Open Records: The Parties acknowledge that this Agreement is public
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record within the meaning of the Colorado Open Records Act§ 24-72-
202(6), C.R.S., and accordingly may be disclosed to the public. The
Parties agree to treat as confidential any records that constitute
proprietary or confidential information under State law, to the extent a
party makes the other party aware of such confidentiality. Each party shall
be responsible for clearly and conspicuously stamping the word
"Confidential" on each page that contains confidential or proprietary
information and shall provide a brief written explanation as to why such
information is confidential under state law. If a party believes it must
release any such confidential records in the course of enforcing this
Agreement, or for any other reason, it shall advise the other party in
advance so that party may take appropriate steps to protect its interests.
If a party receives a demand from any person for disclosure of any
information designated by the other party as confidential, the party shall,
so far as consistent with Applicable Law, advise the other party and
provide the other party with a copy of any written request by the person
demanding access to such information within a reasonable time. Until
otherwise ordered by a court or agency of competent jurisdiction, the
Parties agree that, to the extent permitted by State law, it shall deny
access to any of the party's records marked confidential as set forth above
to any person. The party whose records are being withheld shall
reimburse the other party for all reasonable costs and attorney's fees
incurred in any legal proceedings pursued under this Section.
10. FORCE MAJEURE
In the event either party is prevented or delayed in the performance of any of its
obligations under this Agreement by reason beyond the control of that party, it
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shall have a reasonable time, under the circumstances, to perform the affected
obligation under this Agreement or to procure a substitute for such obligation
which is satisfactory to the other party. Those conditions which are not within the
control of a party include, but are not limited to, natural disasters, civil
disturbances, defaults by other parties impacting the Network, work stoppages or
labor disputes, power outages, telephone network outages, and severe or
unusual weather conditions which have a direct and substantial impact on the
party's ability to comply with this Agreement and which was not caused and
could not have been avoided by the party which used its best efforts in its
operations to avoid such results.
11. DEFAULT AND TERMINATION
11.1. Voluntary Termination: This Agreement can be terminated by either
party at any time with one hundred eighty (180) days written notice after
the initial three (3) year period.
11.2. Default by Host: The following shall constitute defaults by Host: Any failure
by Host to perform any covenant or obligation required by this Agreement
(other than the payment of fees due hereunder), and the failure to cure said
default within a period of thirty (30) days following written notice to Host of
said default. The failure to pay any fees due by Host shall be considered a
default if Host does not make payment in full within fourteen (14) days
following written notice to Host of such non-payment.
11.3. Default by NWCCOG: The following shall constitute default by
NWCCOG: The breach of any promise or covenant of NWCCOG made
herein which shall continue and not be cured within thirty (30) days after
Host has given written notice to NWCCOG of such breach.
11.4. Remedy for Default of Host: Upon the occurrence of an event of default
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with respect to Host, NWCCOG may at its election terminate this
Agreement by written notice to Host of such election. NWCCOG may also
pursue such legal and equitable remedies for any breach by Host without
waiving the right to subsequently terminate this Agreement based on the
related event of default.
11.5. Remedy for Default of NWCCOG: Upon the occurrence of an event of
default with respect to NWCCOG, Host may at its election terminate this
Agreement by written notice to NWCCOG of such election. Host may also
pursue such legal and equitable remedies for any breach by NWCCOG
without waiving the right to subsequently terminate this Agreement based
on the related event of default.
11.6. Additional Remedies: These remedies are in addition to any special
remedies provided elsewhere in this Agreement and in addition to any
other rights or remedies now or subsequently existing at law, in equity, by
statue or otherwise.
12. NOTICE
All notices required or permitted to be given pursuant to this Agreement shall be
in writing and shall be deemed given when personally served or three (3) days
after deposit in the United States Mail, certified mail, return receipt requested,
and addressed to the following Parties or to such other addressee(s) as may be
designated by a notice complying with the foregoing requirements:
For Northwest Colorado Council of Governments:
Jon Stavney, Executive Director
249 Warren Avenue
Silverthorne, CO 80498
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or via US Mail to
P.O. Box 2308
Silverthorne, CO 80498
For Host, City of Aspen:
Paul Schultz, Director Information Technology
130 South Galena St.
Aspen, CO 81611
13. CONTRACT WITH INTERGOVERNMENTAL ENTITY
13.1. Annual Appropriation: Nothing in this Agreement shall be deemed or
construed as creating a multiple fiscal year obligation on the part of the
either party within the meaning of Colorado Constitution Article X, Section
20, or any other constitutional or statutory provisions. Each party's fiscal
obligations hereunder are expressly conditional upon annual appropriation
by its respective governing body, in its sole discretion. The Parties
understand and agree that any decision by a governing body to not
appropriate funds for payment shall result in termination of this
Agreement. If a MMC Host is not going to appropriate funds for its next
fiscal year to continue under this Agreement, it shall utilize best efforts to
advise the NWCCOG of the intent not to appropriate by October 1St of
each year.
13.2. Governmental Immunity: No term or condition of this Agreement shall be
construed or interpreted as a waiver, express or implied, of any of the
immunities, rights, benefits, protection, or other provisions, of the Colorado
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Governmental Immunity Act, C.R.S. 24-10-101 et seq., or any other
Applicable Law, as now or hereafter amended.
14. MISCELLANEOUS PROVISIONS
14.1. Entire Agreement: This Agreement and all Exhibits represent the entire
agreement between the Parties and there are no other promises or
conditions in any other agreement whether written or oral. This Agreement
supersedes any prior written or oral agreements between the Parties.
14.2. Severability: If any provision of this Agreement is invalid or unenforceable
for any reason, the remaining provisions shall continue to be valid and
enforceable. If a court finds that any provision of this Agreement is invalid
or unenforceable, but that by limiting such provision it would become valid
and enforceable, then such provision shall be deemed to be written,
construed, and enforced as so limited.
14.3. Governing Law: This Agreement shall be governed by and construed in
accordance with the Laws of the State of Colorado, and Applicable Law.
14.4. Jurisdiction: Venue for any judicial dispute between the Parties arising
under or out of this Agreement shall be in District Court in the county
where at least one of the parties resides.
14.5. Authority to Execute: The individual executing this Agreement
represents and warrants that he or she is duly authorized to execute and
deliver this Agreement on behalf of such party, and this Agreement is
binding upon such party in accordance with its terms.
14.6. Waiver: The failure of either party to enforce any provision of this
Agreement shall not be construed as a waiver or limitation of that party's
right to subsequently enforce and compel strict compliance with every
provision of this Agreement. Both the NWCCOG and Host expressly
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reserve all rights they may have under law to the maximum extent
possible, and neither the NWCCOG nor Host shall be deemed to have
waived any rights they may now have or may acquire in the future by
entering into this Agreement.
14.7. No Joint Venture: The relationship between NWCCOG and Host shall
not be that of partners, agents, or joint ventures for one another, and
nothing contained in this Agreement shall be deemed to constitute a
partnership or agency agreement between them for any purposes.
NWCCOG and Host, in performing any of their obligations hereunder,
shall be independent contractors or independent parties and shall
discharge their contractual obligations at their own risk subject, however,
to the terms and conditions hereof.
14.8. Network Transport pricing on the Network may be billed to each MMC for
incoming and outgoing Transport Packets. Billing for Transport may be
determined by the Project THOR Steering Committee prior to each three-
year renewal period of this agreement.
14.9. Survival: Any provision of this Agreement, which by its nature extends
beyond the term hereof or which is required to ensure that the parties to
fully exercise their rights and perform their obligations hereunder shall
survive the expiration or termination of this Agreement for any cause
whatsoever.
14.10. Headings: Headings used in this Agreement are provided for
convenience only and will not be used to construe meaning or intent.
14.11. No Ability to Bind Other Party: Neither Party will have the authority to
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bind the other by contract or otherwise or make any representations or
guarantees on behalf of the other. The relationship arising from this
Agreement will be and will at all times remain that of an independent
contractor, and does not constitute an agency, joint venture, partnership,
employee relationship or franchise.
NORTHWEST COLORADO COUNCIL OF GOVERNMENTS
By:
Jon Stavney, Executive Director Date
City of Aspen,
By: &T-T' CA-t sae
Date
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EXHIBIT A- OPTIONAL BANDWIDTH RATES
Optional bandwidth can be purchased directly from the Network Operator from which
NWCCOG has negotiated the following combined bulk rate (bulk rate is calculated by
the total aggregation of all contracted parties) of:
IP Transit Tier MRC Price / Mbps
1 Gbps To 2Gbps $0.75
2Gbps To 5Gbps $0.70
5Gbps To 10Gbps $0.60
10Gbps To 15Gbps $0.50
15Gbps To 20Gbps $0.48
20Gbps To 30Gbps $0.45
30Gbps To 40Gbps $0.40
40Gbps To 50Gbps $0.35
50Gbps To 60Gbps $0.33
60Gbps To 70Gbps $0.30
70Gbps To 80Gbps $0.28
80Gbps To 90Gbps $0.26
90Gbps To 100Gbps $0.25
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Exhibit C-Service Level Agreement
This Service Level Agreement (SLA) establishes Network Operator network
performance and service level metrics for the Network. The NWCCOG has contracted
with the Network Operator for its performance under the SLA described below, and
each MMC Host is a third-party beneficiary to, and may independently enforce the terms
of the SLA with the Network Operator with respect to the Services it purchases from the
Network Operator.
This Service Level Agreement (SLA) establishes the Network Operator's network
performance and service level metrics for the Network. When the Network fails to
deliver a standard of performance (as established in the Table below), the Network
Owner shall be eligible for a corresponding credit. All Service Outages, service
impacting and non-impacting situations, and potential Service Level credits, will be
handled according to the guidelines and priorities as defined and set forth in this SLA,
and which may be subject to change from time to time with written notice.
Network Performance:
Upon Effective Date, in the event Network Operatorsuffers a network outage outside of
events defined as Force Majeure, planned outage or scheduled network maintenance,
then Network Operator and Network Owner will adhere to the guidelines set forth in this
Exhibit.
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Monthly Service Availability Percentage and Outage Credits are as follows:
Monthly Service Availability Outage credit %
Percentage
Upper Level Lower Level % of MRC credit per affected
and Network Operator
authorized Customer
100% >=99.9% 0%
<99.9% >=99.5% 5%
<99.5% >=99.0% 10%
<99.0% >=95.0% 25%
<95.0% >=90.0% 50%
<90.0% >=00.0% 100%
Network Operator will be responsible for ensuring the Network functions at or above the
Service Levels outlined in the preceding table, by performing the duties and
responsibilities outlined in the SOW. Any outage not directly related to Network
Operator's duties and responsibilities will not constitute an outage credit between
Network Owner and Network Operator.
The length of each outage will be calculated in full minutes for the purposes of
determining outage credits. The existence and end of each outage will be determined
by Network Operator in good faith based on network tests performed by Network
Operator. Under no circumstances will network tests performed by MMC Host or
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Network Owner without collaboration with Network Operator be considered valid
measurable criteria for outage determination for the purposes of establishing outage
credit. In the event that the parties disagree as to the accuracy of Network Operator's
test results, the parties shall work together to identify an independent entity to verify test
results.
Transparency: In the case of any outage or disruption of Service on the Network,
Network Operator shall promptly notify the Network Owner, MMC Hosts, and customers
with details of the outage and when Service is expected to be restored. Network
Operator may also make such outage information available electronically.
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EXHIBIT D-MEET ME CENTER EQUIPMENT SPECIFICATIONS
Project THOR MMC Host Requirements
• Physical Space for Equipment
• MMC Host must provide adequate space for THOR Equipment
• THOR equipment will require up to 10 Rack Units of Space
• MMC Host to provide space for Anchor Institution and ISP equipment as
needed
• 2 x 19" racks would be preferred
• Entrance conduits
• MMC Host must provide entrance conduits and related infrastructure for
THOR middle mile connection
• For sites where fiber build is required, the entrance conduits must be
installed from equipment room to property line
• For sites where lit services will be used, underlying carrier requirements
will be applicable and likely to include conduit to property line, as well as
space and power for underlying carrier equipment
• HVAC
• MMC Host is responsible for maintaining proper environmental controls to
ensure the longevity of the THOR equipment
• Proper temperature controls should maintain an ambient temperature of
no more than 80 degrees Fahrenheit
• Access Control
• MMC Host to provide secure access to equipment room
• Only authorized personnel should be granted access
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• MMC Host to provide 24/7 procedure for access by Network Operator
• MMC Host to provide 24/7 procedure for access by Colocators
• Power
• MMC Host must provide adequate commercial power for THOR
Equipment
• 20Amp, 120VAC dedicated power circuit minimum
• Backup provisions in case of commercial power outage
• Uninterrupted Power Supply (UPS)
• Used to bridge power from time of outage to generator
power
• Generator with automatic transfer switch capable of providing
power to equipment room during loss of commercial power
• Land use/easements/lease
• MMC Host must ensure that the equipment space provided has the proper
use, zoning, and easements in place for allowing the use by NWCCOG
and Project THOR
• No additional compensation will be provided by NWCCOG for use of
space
• Colocation
• MMC Host shall make available space for ISPs to locate equipment and
connect to THOR within the MMC
• MMC Host to make available entry/exit conduits for delivery of services
out of the MMC
• MMC Host to make available roof space (if possible) for locating ISP
wireless equipment and/or wireless equipment to connect Community
Anchor Institutions
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