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HomeMy WebLinkAboutCity of Rexburg Master Service Agreement MSA 1TELECOMMUNICATION SERVICES AGREEMENT THIS TELECOMMUNICATION SERVICES AGREEMENT (this "Agreement") is made this ____ day of_______________, 2025 by and between Silver Star Communications, a dba of Millennium Networks LLC with a principal location at 104101 US Highway 89 Freedom, Wyoming (“Silver Star") and the City of Rexburg, with a principal address of 35 N 1st Street, Rexburg, Idaho (“Customer”), each may referred to individually as “Party” or jointly as “Parties”. RECITALS A. Silver Star Communications owns and operates a fiber network in Idaho and Wyoming, together with such associated facilities, equipment or services, including but not limited to switches and electronic equipment, necessary or convenient for the purpose of transporting telecommunications traffic, and for other purposes. B. Customer desires to use certain Silver Star Communications Services. NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Scope of Agreement. Silver Star agrees to provide, and Customer agrees to purchase from Silver Star, the telecommunication services described in Exhibit A (“Telecommunications Services”), which is attached hereto and incorporated by reference herein. 1.1 Service and Price Changes. Unless otherwise specified in Exhibit A, Silver Star Communications reserves the right to cancel or change any service offering or alter the prices for individual Telecommunications Services upon 90 days written notice to Customer. 1.2 Additional Services. With Silver Star Communications’ concurrence, Customer may order additional or different Telecommunications Services, and each such change or addition will be memorialized in a revised Exhibit A. Each revision of Exhibit A will be incorporated in this Agreement in the same manner as the original Exhibit A. 1.3 Other Providers. Customer acknowledges and agrees that certain Telecommunications Services, or components thereof, may be offered by Silver Star Communications’ affiliates, underlying service providers, subcontractors or vendors. 1.4 Non-Exclusive. This Agreement is non-exclusive and shall not prevent or prohibit either Party from entering into similar agreements for similar services with third parties. 2. Compensation. 2.1 Payment of Compensation. Unless otherwise provided in Exhibit A, Customer shall pay to Silver Star Communications, in advance, the nonrecurring amounts set forth on Exhibit A upon execution of this Agreement, and shall continue to pay applicable monthly recurring payments thereafter as long as the Agreement is in effect. 2.2 Payment Schedule. 2.2.1 Silver Star Communications will forward an invoice to Customer on or before the first (1st) day of the month for Telecommunications Services to be provided during the following month after the invoice is forwarded. 2.3 Customer shall pay the invoice within thirty (30) days of receipt; provided, however, that the compensation shall be paid by Customer, regardless whether an invoice is received, on or before the first (1st) day of the month for which Silver Star Communications is to provide the Telecommunications Services. 2.4 Default Payments. If Customer defaults in the payment of any sum due hereunder, then such unpaid amount shall bear interest at the rate of one and one-half percent (1.5%) APR on the date of such default from the date due to the date of payment. In addition, if Customer defaults in the payment of any sum due hereunder, Customer shall pay to Silver Star Communications a late charge equal to five percent (5%) of the overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Silver Star Communications will incur by reason of late payment of Customer. Acceptance of such late charge by Silver Star Communications shall in no event constitute a waiver of Customer’s default with respect to such overdue amount, nor prevent Silver Star Communications from exercising any of the other rights and remedies granted hereunder. 3. Mutual Cooperation. Each party will cooperate with the other, and take all actions necessary and appropriate for the connection of Customer’s network with the Telecommunications Services provided by Silver Star Communications. Each party will take such measures as may be reasonably necessary to inform the other party in advance of any changes in its network or practices that may affect the other party’s network or services. 4. Term of Agreement. This Agreement shall commence upon execution of hereof by the Parties and shall terminate five (5) years from the effective date hereof to Silver Star (the ”Term”). The Term shall automatically extend for an additional period of five (5) years unless either party gives notice of termination to the other party twelve (12) months prior to the expiration of the then current term. Notwithstanding anything herein to the contrary, Silver Star Communications may terminate this Agreement at any time, with or without notice, if it reasonably concludes that Customer’s use of the Telecommunications Services is unlawful or threatens the integrity and functionality of Silver Star Communications’ network. 5. Continuity of Service. Silver Star Communications shall use its best efforts to service and maintain the Telecommunications Services in conformity with the operations and procedures set forth in its tariffs, operating manuals and any other specifications or maintenance requirements as may be in accordance with industry standards. 5.1 Interrupted Service. Silver Star Communications shall notify Customer of any anticipated or planned service interruption and Customer will cooperate with Silver Star Communications to take appropriate actions to restore service availability. 6. Limitation of Liability. If the Telecommunication Services are unavailable for ten (10) consecutive hours during any calendar day and such unavailability results from the failure of equipment or facilities of Silver Star Communications, Silver Star Communications will credit a prorated amount to Customer’s account in an amount equal to the charges which would have been charged by Silver Star Communications to Customer during the period when services or access is unavailable. This credit shall constitute the sole available remedy for any Silver Star Communications errors, interruptions or defects in the ordering processing, provisioning or transmission of services. In no event shall Silver Star Communications be liable to any person or entity for any indirect, consequential, special, incidental actual or punitive damages, or for any lost profits of any kind or nature, arising out of the performance of this Agreement. 7. Warranties. 7.1 The Parties. Each Party represents and warrants it is, and will remain, duly organized, validly existing, and in good standing under the laws of the place of its origin, and possesses all the authority necessary to enter into and perform its obligations under this Agreement. 7.2 Silver Star. Silver Star Communications represents and warrants that: (a) its On-Net Service is designed, installed, provided, and maintained in compliance with applicable legal requirements; and (b) it possesses, and will maintain, all licenses, approvals, registrations and certifications required by regulators or other third parties to furnish its Services to Customer. 7.3 Customer. Customer represents and warrants that: (a) services it furnishes to its end users are designed, installed, provided, and maintained in compliance with applicable legal requirements and those established in this Agreement; (b) all custom Silver Star Communications traffic handled by Silver Star Communications is compliant with applicable legal requirements and those established in this Agreement; and (c) it possesses, and will maintain, all licenses, approvals, registrations and certifications required by regulators or other third parties to furnish its services. 7.4 Exclusion of Other Warranties. THE WARRANTIES SET FORTH IN SECTIONS 7.1-7.3 ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INTERFERENCE, AND NON-INFRINGEMENT. 8. Relationship of the Parties. This Agreement does not constitute either party as an agent, legal representative, joint venturer, partner, franchisee or employee of the other party for any purpose. Each party shall be an independent contractor and is in no way authorized to make a contract, agreement, warranty, or representation on behalf of the other or to create any obligation, express or implied, on behalf of the other. The Parties agree that this Agreement does not constitute a fiduciary relationship between Silver Star Communications and Customer. 9. Confidentiality. Unless required by law, the Parties shall not disclose, duplicate or copy, or make use of this Agreement and any exhibits for any purpose other than the performance of this Agreement, and shall treat as confidential and proprietary the terms and conditions of this Agreement and all information supplied or disclosed to each other in connection with this Agreement. 10. Assignment. Either party may assign its rights and/or obligations under this Agreement, or any portion thereof, upon the written notice to the other party. Any assignee must become obligated to the terms of this Agreement prior to said assignment. 11. Notice. Any notice under this Agreement shall be in writing and shall be delivered in person or by public or private courier service (including U.S. Postal Service Express Mail and Federal Express) or certified mail or by facsimile. Any notice given by certified mail shall be sent with return receipt requested. Any notice given by facsimile shall be verified by a facsimile confirmation. All notices shall be addressed to the parties at the following addresses or at such other addresses as the parties may from time to time direct in writing: If to Customer: __________________ __________________ If to Silver Star Communications: Silver Star Communications Attn: Legal & Regulatory Administrator P.O. Box 226 Freedom, WY 83120 Facsimile: 307-883-2575 Any notice shall be deemed to have been given on (a) actual day of delivery or refusal to accept delivery, (b) the day of mailing by registered or certified mail, or (c) the day facsimile transmission is verified. 12. Default. 12.1 Events of Default. The occurrence of any one or more of the following events shall constitute a default under this Agreement: 12.1.1 Failure by Customer to make any payment or other compensation payable by Customer to Silver Star Communications when due under the terms of this Agreement; or 12.1.2 Failure by either party in performing any other term, covenant, or condition of this Agreement upon the expiration of thirty (30) days from receipt of written notice from the other party, or the inaccuracy in any material respect of any representation or warranty made by either party to the other. 12.2 Defaulting Party’s Right to Cure. The party failing to perform shall not be deemed to be in default if such party, prior to the expiration of said thirty (30) days, has cured such failure as set forth in the notice of default. With respect to any non-monetary default that cannot reasonably be cured within thirty (30) days, the default shall not be deemed to be uncured if the defaulting party commences cure within thirty (30) days for so long as the defaulting party is diligently prosecuting the cure thereof. 12.3 Non-defaulting Party’s Right to Perform. If the defaulting party fails to pay any sum of money required to be paid by such party to a person or entity other than the non- defaulting party or fails to perform any other act to be performed by such defaulting party hereunder, and such failure continues for thirty (30) days after notice thereof by the non-defaulting party, the non-defaulting party may, but shall not be obligated so to do, and without waiving or releasing the defaulting party from any of its obligations, make any such payment or perform any such other act on the defaulting party’s part to be made or performed as provided in this Agreement. 13. Specific Performance. Each Party agrees that the other Party would be irreparably damaged if any of the provisions of this Agreement are not performed in accordance with their specific terms and that monetary damages would not provide an adequate remedy in such event. Accordingly, it is agreed that, in addition to any other remedy to which the non- breaching party may be entitled, at law or in equity, the non-breaching party shall be entitled to injunctive relief to prevent breaches of the provisions of this Agreement and specifically to enforce the terms and provisions hereof. 14. Remedies. In the event of a default by either party, which is not corrected within the time frames specified herein, the non-defaulting party shall be entitled to all rights and remedies available at law or in equity, including, without limitation, specific performance of the terms of this Agreement against the defaulting party. 15. Force Majeure. With the exception of payment of fees and charges due under this Agreement, a party shall be excused from performance, if its performance is prevented by acts or events beyond the party's reasonable control, including but not limited to, severe weather and storms; earthquakes or other natural occurrences; strikes or other labor unrest; nuclear or other civil or military emergencies; or acts of legislative, judicial, executive, or administrative authorities. 16. Severability. If any provisions of this Agreement shall be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provision of this Agreement and all such other provisions shall remain in full force and effect and shall be valid and enforceable to the fullest extent permitted by law. 17. Indemnification. Each party to this Agreement hereby indemnifies and holds harmless the other party with respect to any third-party claims, lawsuits, damages or court actions arising from performance under this Agreement to the extent that the indemnifying party is liable or responsible for said third-party claims, losses, damages, or court actions. Whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification shall promptly notify the other party of the claim and, when known, the facts constituting the basis for such a claim. In the event that one party to this Agreement disputes the other party's right to indemnification hereunder, the party disputing indemnification shall promptly notify the other party of the factual basis for disputing indemnification. Indemnification shall include, but is not limited to, costs and attorney fees. 18. Governing Law. It is agreed that this Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Idaho. 19. Successors and Assigns. This Agreement and all terms and conditions hereof shall be binding upon and shall inure to the benefit of all authorized heirs, successors in interest or assignees of either party hereto. 20. Entire Agreement. This Agreement, together with all exhibits, notices, appendices and any jointly executed written supplements hereto, represent the entire agreement contemplated by the parties hereto. It is understood and agreed by the parties that there are no verbal promises or implied promises, agreements, stipulations or other representations of any kind or character pertaining to the Telecommunications Services between them other than as set forth herein. 21. Written Modification. No modification, release, discharge, or waiver of any provisions hereof shall be of any force, effect or value unless in writing signed by both parties. 22. Waiver. No covenant, term or condition contained in this Agreement nor the breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed, and any waiver of the breach of any covenant, term or condition shall not be deemed to be a waiver of any other covenant, term or condition herein. Acceptance by a party of any performance by another party after the time the same shall have become due, or failure to insist upon performance, shall not constitute a waiver by the first party of the breach or default of any such covenant, term or condition unless otherwise expressly agreed to by the first party in writing. 23. Counterparts. This Agreement may be executed in counterparts and upon every party having executed a counterpart, each signed copy shall have the same force and effect as an original document and as if the parties to the counterparts had signed the same document. 24. Attorneys’ Fees. In the event of any controversy, claim or action being filed or instituted between the parties hereto to enforce or interpret the terms and conditions of this Agreement, or arising from the breach of any provision thereof, the prevailing party will be entitled to receive from the other party all costs, damages and expenses, including reasonable attorneys’ fees, through all levels of action, incurred by the prevailing party, whether or not such controversy or claim is litigated or prosecuted to judgment. The prevailing party will be that party who is awarded judgment as a result of trial or arbitration, or who receives a payment of money or other concession or agreement from the other party in settlement of claims asserted by that party. 25. Captions. The captions inserted in this Agreement are for convenience only and do not define, limit or otherwise describe the scope or intent of this Lease or any provision hereof nor affect the interpretation of this Agreement. 26. Time of Essence. Time is hereby expressly declared to be of the essence of each and every covenant, term, condition and provision of this Agreement. 27. Additional Acts. The parties hereto agree to execute and deliver any documents or instruments and to take any and all actions reasonably necessary to carry out any agreement, term or condition of this Agreement, whenever the occasion may arise and request for such action shall be made. The parties have executed this Agreement on the date first above written. Customer: The City of Rexburg By: Name: Its: Silver Star Communications: By: Name: Its: EXHIBIT A MONTHLY RECURRING SERVICE FEES: 1. Silver Star will charge Customer a monthly fee of $30.00 per optical terminal. A. Each location to be configured with up to 2 Gbps configured into an ethernet Layer 2 LAN connection between locations and Rexburg City Hall via a 10 Gigabit port. B. Customer will select initial configuration of each port. 2. Silver Star will charge Customer a monthly Dedicated Internet Access fee for a service to 35 N 1st East Rexburg ID of $850.00 per month for up to 10 Gbps symmetrical bandwidth service knowing that a traditional bandwidth test cannot verify a 10 Gbps service using many publicly available testing services. A. Internet is for City use only, and not for redistribution outside of City network. 3. The above configurations may be changed within term of this Agreement the city. Silver Star may charge for configuration changes. TOTAL MONTHLY RECURRING CHARGE: $850.00+ ($30 TIMES NUMBER OF ACTIVE DROP LOCATIONS) ADDITIONAL FEES AND TERMS: 1. Customer will pay for mainline facilities and location drop facilities extensions based on actual cost without markup to any location within the City. A. Silver Star will provide an initial estimate, and a final closed out work order cost based on actual time, materials and expenses associated with project work order(s). B. Silver Star will apply existing prepaid funds to project work order(s) under this Agreement; current estimated balance of $__________________, until exhausted. Customer shall pay any remaining amount due upon application of prepaid funds. C. Silver Star will invoice Customer for work performed under project work order(s) upon work order completion and close-out. D. Silver Star my request deposit based upon estimated initial cost; said deposit to be remitted by Customer prior to any project work. E. Customer will pay a $350.00 flat fee per location for a facilities drop with an existing conduit path. i. Silver Star may annually modify or change this per location facilities drop flat fee referenced in this Section 1.E., at its discretion, and upon advance written notice to Customer. F. Customer will pay a $750.00 flat fee per location for a facilities drop without an existing conduit path, for facilities drops less than 100’ ft in length; this fee does not include remediation for hardscape or sensitive scape crossings. i. Silver Star may annually modify or change the per location facilities drop flat fee referenced in this Section 1.F at its discretion, and upon advance written notice to Customer. 2. Silver Star will source and install all materials including conduit, fiber, electronics to provide an un-routed Optical terminal with a 10/100/1000/10000 baseT Electrical port hand off. 3. Silver Star shall connect to the ITD traffic lights listed below; the cost to extend fiber facilities to these locations are waived. 2nd E & Main St. Traffic Signal ITD NW Corner 43.82623927 -111.7782368 1st E & Main St. Traffic Signal ITD NE Corner 43.826228 -111.7808371 Center & Main Traffic Signal ITD NE Corner 43.82622237 -111.7836951 1st W & Main Traffic Signal ITD SE Corner 43.82591815 -111.7865687 2nd W & Main Traffic Signal ITD NW Corner 43.82623363 -111.7897235 2nd E & 1st N Traffic Signal ITD SE Corner 43.82812046 -111.7778687 2nd E & Teton River Vlg Traffic Signal ITD NE Corner 43.83598519 -111.7778545 2nd East & Yellowstone Hwy Traffic Signal ITD NE Corner 43.84156831 -111.778225 2nd East & 7th North Traffic Signal ITD 43.84038179 -111.7780896 2nd East & 2nd North Traffic Signal ITD NE Corner 43.83029185 -111.7780715 5th West and Main Street Traffic Signal ITD SE Corner 43.82607948 -111.7980547 12th West & Main Street Traffic Signal ITD SE Corner 43.82607855 -111.8180784 Pioneer Road & Main Street Traffic Signal ITD SE Corner 43.82607383 -111.8079582 4. Silver Star will own all placed facilities under this Agreement and maintain said facilities throughout the Agreement term, including any extensions. Maintenance under this Agreement does not extend to City-owned network equipment behind the Optical terminal. 5. Silver Star reserves the right to adjust monthly service fees and construction fees during the contract renewal period. While Silver Star strives to always be competitive in the market, if the Customer feels that Silver Star is more than 10% off of the average market rate then Silver Star will work with the Customer to have the new rates adjusted to fit within 10% of the average market rate.