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HomeMy WebLinkAboutECAT14-021 San Isabel Telecom IncAGREEMENT FOR THE PROVISION OF SERVICES BETWEEN EAGLE COUNTY AIR TERMINAL CORPORATION AND SAN ISABEL TELECOM, INC. ll THIS AGREEMENT, ("Agreement") is effective as of the � day of ^'J� 2014 by and between San Isabel Telecom, Inc., a Colorado corporation, (hereinafter "San Isabel" or "Contractor") and the Eagle County Air Terminal Corporation, a Colorado non-profit corporation (hereinafter "Customer" or "ECAT"). This Agreement may refer to San Isabel or Customer each as a "Party" or collectively as the "Parties". WHEREAS, ECAT desires to furnish Data service to the public (the "Project") at the Eagle County Regional Airport terminal building located at 219 Eldon Wilson Road, Gypsum, Colorado (the "Property"); and WHEREAS, San Isabel is authorized to do business in the State of Colorado and has the time, skill, expertise and experience necessary to provide the services and facilities set forth herein; and WHEREAS, this Agreement shall govern the relationship between San Isabel and ECAT in connection with the facilities and services to be provided. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises San Isabel and ECAT agree as follows: SECTION 1. SCOPE OF AGREEMENT San Isabel agrees to diligently provide all services, labor, personnel and materials necessary to perform and complete the installation of the equipment and facilities as identified in Attachment A and Attachment B and to provide direct internet access for the public at the Property and maintenance thereof. Attachments A and B are incorporated herein by reference thereto. Specifically, San Isabel shall furnish, install and lease fiber and other facilities or equipment as set forth on Attachment B (the "Facilities") to the Property as necessary for the delivery of Data at the Property. The Facilities and delivery of Data at the Property shall collectively be referred to herein as the "Services". a. San Isabel agrees to furnish the Facilities and Services no later than 45 days after the execution of this Agreement. b. In the event of any inconsistency between the terms and conditions set forth in any Attachment hereto and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. ECAT14-021 1.2 The Eagle County Air Terminal Corporation's designee shall be San Isabel's contact with respect to this Agreement and the performance of the Services. SECTION 2. TERM OF AGREEMENT 2.1 This Agreement shall become effective upon the date first set forth above and shall continue in full force for a period of one year (the "Term"). Thereafter, this Agreement shall automatically renew for up to two (2) additional one-year periods (each a "Renewal Term") on the same terms, conditions and rates set forth herein. 2.2 Any amendments or modifications shall be in writing and signed by both parties. No additional services or work performed by San Isabel shall be the basis for additional compensation unless and until San Isabel has obtained written authorization and acknowledgement by ECAT for such additional services in accordance with ECAT's internal policies. Accordingly, no course of conduct or dealings between the parties, nor verbal change orders, express or implied acceptance of alterations or additions to the Services, and no claim that ECAT has been unjustly enriched by any additional services, whether or not there is in fact any such unjust enrichment, shall be the basis of any increase in the compensation payable hereunder. In the event that written authorization and acknowledgment by ECAT for such additional services is not timely executed and issued in strict accordance with this Agreement, San Isabel's rights with respect to such additional services shall be deemed waived and such failure shall result in non-payment for such additional services or work performed. SECTION 3. INSTALLATION 3.1 Installation of Facilities will be in accordance with Attachment A and Attachment B. San Isabel shall coordinate the installation and any on-going maintenance of Facilities with Customer in advance. Such coordination shall include, but not be limited to, a determination of the location of the Facilities at the Property and scheduling the installation and any maintenance. All Services shall be performed in accordance with any rules, regulations and requirements adopted by TSA and the FAA. Any representatives of San Isabel or their subcontractors performing Services at the Property shall obtain security badges from Customer in advance and shall comply with current security measures in effect at the Property. SECTION 4. MAINTENANCE, USE, AND ALTERATION OF FACILITIES 4.1 San Isabel shall maintain and Customer shall use the Facilities in accordance with standard industry operating methods and with San Isabel's Acceptable Use Policy. Service charges identified in the Acceptable Use Policy shall not apply to this Agreement. SECTION 5. TITLE TO FACILITIES 5.1 Nothing contained in this Agreement shall be construed to confer upon Customer or any other party any right, title, or interest in any of San Isabel's Facilities covered by this Agreement. Upon expiration or earlier termination of this Agreement, San Isabel shall remove the Facilities from the Property and shall restore the Property to its condition prior to removal of the Facilities unless this Agreement is extended or the parties agree otherwise in writing.. San Isabel shall be solely responsible for repairing any damage to the Property caused by San Isabel during its installation, servicing or removal of the Facilities. In the event San Isabel fails to repair any damage caused by it to the Property, then ECAT may repair the damage and bill San Isabel for the cost of repair. SECTION 6. BILLING AND PAYMENT OF BILLS AND SEASONAL ADJUSTMENTS 6.1 During the Term of this Agreement, ECAT shall compensate San Isabel for the installation of the Facilities upon satisfactory installation thereof with a one-time payment of sixteen thousand four hundred dollars ($16,400). Further, ECAT shall pay for the monthly delivery of Data Services at the rates computed and payable as set forth in Attachment A and this Agreement. The Services during the Term of this Agreement (including installation of Facilities and delivery of Data shall not exceed $25,000. The Services during any Renewal Term shall be computed and payable as set forth in Attachment A and this Agreement and shall not exceed nine thousand five hundred forty dollars ($9,540) per year. San Isabel shall provide Customer with a monthly billing statement setting forth the total monthly amount payable for Services provided for under this Agreement. Payment for Services satisfactorily performed shall be paid within thirty (30) days of receipt of a complete and accurate invoice from San Isabel. All invoices shall include detail regarding the Services provided. 6.2 The Parties agree that during the term of this Agreement there may be fluctuations in the amount of bandwidth required by ECAT to serve the needs of the public. Therefore, ECAT may request changes in bandwidth up to four (4) times during any calendar year. These changes will be instituted on a monthly basis (no partial -month changes) and Customer must provide San Isabel ten (10) business day notice of a proposed change. Customer will be billed at the monthly rates outlined in the Attachment A, with the monthly bill corresponding to the subscribed data service for that month. 6.3 ECAT will not withhold any taxes from monies paid to San Isabel hereunder and San Isabel agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. SECTION7. EARLY TERMINATION 7.1 Customer may terminate this Agreement, with or without cause and without penalty therefore prior to the date of maturity by giving San Isabel thirty (30) days advance written notice. The notice shall be sent via regular mail to: San Isabel Telecom, Inc. P.O. Box 1130 Gypsum, Colorado 81637. Upon early termination Customer shall pay San Isabel for Services satisfactorily performed through the date of termination. SECTION 8. LAWFULNESS OF AGREEMENT 8.1 This Agreement and the Parties' actions under this Agreement shall comply with all applicable federal, state, and local laws, rules, regulations, court orders, and governmental agency orders including the Modification of Final Judgment ("MFJ") as issued in United States vs. Western Electric Co., et. al. Civil Action No. 82-0192, US District Court for the District of Columbia, and all subsequent orders issued in or related to that proceeding. This Agreement shall only be effective when mandatory regulatory filing requirements are met, if applicable. If a court or governmental agency with proper jurisdiction determines that this Agreement, or a provision of this Agreement, is unlawful, or if Customer determines this Agreement or a provision of this Agreement is inconsistent with, or contradictory to the MFJ, this Agreement, or that provision of this Agreement shall terminate on written notice to San Isabel to that effect. If a provision of this Agreement is so terminated but the Parties legally, commercially, and practicably can continue this Agreement without the terminated provision, the remainder of this Agreement shall continue in effect. SECTION 9. VENUE, JURISDICTION AND CHOICE OF LAW 9.1 Any and all claims, disputes or controversies related to this Agreement, or breach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall be the sole and exclusive forum for such litigation. This Agreement shall be governed and construed in accordance with the laws of the state of Colorado. SECTION 10. Intentionally Omitted SECTION 11. FORCE MAJEURE 11.1 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; municipal power failures; computer failures beyond the reasonable control of San Isabel; nuclear or other civil or military emergencies; or acts of legislative, executive, or administrative authorities. SECTION 12. INSURANCE 12.1 San Isabel agrees to provide and maintain at its sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: a. Types of Insurance. i. Workers' Compensation insurance as required by law. ii. Auto coverage with limits of liability not less than $1,000,000 each accident combined bodily injury and property damage liability insurance, including coverage for owned, hired, and non -owned vehicles. iii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per occurrence and $1,000,000 aggregate limits. b. Other Requirements. i. The automobile and commercial general liability coverage shall be endorsed to include ECAT, its associated or affiliated entities, its successors and assigns, elected officials, employees, agents and volunteers as additional insureds. A certificate of insurance consistent with the foregoing requirements is attached hereto as Attachment C. ii. San Isabel's certificates of insurance shall include subcontractors, if any as additional insureds under its policies or San Isabel shall furnish to ECAT separate certificates and endorsements for each subcontractor. iii. The insurance provisions of this Agreement shall survive expiration or termination hereof. iv. The parties hereto understand and agree that ECAT is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to ECAT, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. V. San Isabel is not entitled to workers' compensation benefits except as provided by San Isabel, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by San Isabel or some other entity. San Isabel is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. SECTION 13. INDEMNIFICATION 13.1 San Isabel shall indemnify and hold harmless ECAT, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which ECAT may become subject to insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, or are based upon any performance or nonperformance by San Isabel or any of its subcontractors hereunder; and San Isabel shall reimburse ECAT for reasonable attorney fees and costs, legal and other expenses incurred by ECAT in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against ECAT to the extent that ECAT is liable to such third party for such claims without regard to the involvement of San Isabel. This paragraph shall survive expiration or termination hereof. SECTION 14. EXECUTION BY COUNTERPARTS,• ELECTRONIC SIGNATURES 14.1 This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. 24-71.3-101 to 121. SECTION 15. OTHER CONTRACT REQUIREMENTS AND REPRESENTATIONS 15.1 San Isabel shall be responsible for the completeness and accuracy of the Services and shall correct, at its sole expense, all significant errors and omissions in performance of the Services. The fact that ECAT has accepted or approved the Services shall not relieve San Isabel of any of its responsibilities. San Isabel shall perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to contractors performing similar services. San Isabel represents and warrants that it has the expertise and personnel necessary to properly perform the Services and shall comply with the highest standards of customer service to the public. San Isabel shall provide appropriate supervision to its employees to ensure the Services are performed in accordance with this Agreement. This paragraph shall survive termination of this Agreement. 15.2 San Isabel agrees to work in an expeditious manner, within the sound exercise of its judgment and professional standards, in the performance of this Agreement. Time is of the essence with respect to this Agreement. 15.3 This Agreement constitutes an agreement for performance of the Services by San Isabel as an independent contractor and not as an employee of ECAT. Nothing contained in this Agreement shall be deemed to create a relationship of employer-employee, master -servant, partnership, joint venture or any other relationship between ECAT and San Isabel except that of independent contractor. San Isabel shall have no authority to bind ECAT. 15.4 San Isabel represents and warrants that at all times in the performance of the Services, Contractor shall comply with any and all applicable laws, codes, rules and regulations. 15.5 Neither party shall assign any portion of this Agreement without the prior written consent of the other. Any attempt to assign this Agreement without such consent shall be void; provided, however, that either Party may assign its rights and delegate its duties under this Agreement to its parent, its subsidiaries, or its affiliates upon prior written notice to the other Party but without prior written permission. 15.6 This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the Parties, and not to any third party. 15.7 No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. 15.8 The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. 15.9 The signatories to this Agreement aver to their knowledge, no employee of ECAT has any personal or beneficial interest whatsoever in the Services or Property described in this Agreement. San Isabel has no beneficial interest, direct or indirect, that would conflict in any manner or degree with the performance of the Services and San Isabel shall not employ any person having such known interests. SECTION 16. MAINTENANCE 16.1 As part of the Services to be provided by San Isabel to ECAT, San Isabel will, upon notification by ECAT, provide maintenance at the Property within four (4) hours of said notification. Maintenance will be according to industry standards and at no additional cost to ECAT. SECTION 17. ENTIRE AGREEMENT 17.1 This Agreement, together with Attachments, constitutes the entire Agreement and the complete understanding between the Parties with respect to the Services covered hereunder. No other verbal or written representation of any kind affects the rights or obligations of the Parties regarding any provisions of this Agreement. SECTION 18. NOTICES 18.1 All notices required by or relating to this Agreement shall be in writing and shall be sent to the Parties to the Agreement at their addresses set forth below unless changed from time to time, in which event each Party shall notify the other in writing of such change. All such notices shall be deemed duly given if mailed, postage prepaid, and directed to the addresses then prevailing. If any questions arise about the dates of notices, postmark dates control. SAN ISABEL TELECOM, INC. PO BOX 1130 GYPSUM, CO 81637 (970) 337-0005 EAGLE COUNTY AIR TERMINAL CORPORATION ATTN: AVIATION DIRECTOR PO BOX 850 GYPSUM, CO 81637 970-328-2680 SECTION 19. PROHIBITION ON GOVERNMENT CONTRACTS 19.1 As used in this Section 19, the term undocumented individual will refer to those individuals from foreign countries not legally within the United States as set forth in C.R.S. 8-17.5-101, et. seq. If Contractor has any employees or subcontractors, Contractor shall comply with C.R.S. 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement, Contractor certifies that it does not knowingly employ or contract with an undocumented individual who will perform under this Agreement and that Contractor will participate in the E -verify Program or other Department of Labor and Employment program ("Department Program") in order to confirm the eligibility of all employees who are newly hired for employment to perform Services under this Agreement. a. Contractor shall not: Knowingly employ or contract with an undocumented individual to perform Services under this Agreement; or ii. Enter into a subcontract that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an undocumented individual to perform work under the public contract for services. b. Contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform Services under this Agreement through participation in the E -Verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E - verify program can be found at: httn://www.dhs.gov/xprevprot/programs/gc 1185221678150 shtm C. Contractor shall not use either the E -verify program or other Department Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. d. If Contractor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an undocumented individual, Contractor shall be required to: i. Notify the subcontractor and ECAT within three (3) days that Contractor has actual knowledge that the subcontractor is employing or contracting with an undocumented individual; and ii. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the subcontractor does not stop employing or contracting with the undocumented individual; except that Contractor shall not terminate the contract with the subcontractor if during such three (3) days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an undocumented individual. e. Contractor shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. 8-17.5-102(5). f. If Contractor violates these prohibitions, ECAT may terminate the Agreement for breach of contract. If the Agreement is so terminated specifically for breach of this provision of this Agreement, Contractor shall be liable for actual and consequential damages to ECAT as required by law. g. ECAT will notify the Colorado Secretary of State if Contractor violates this provision of this Agreement and ECAT terminates the Agreement for such breach. [rest of page intentionally left blank] IN IVITNFSS W- HEREOF. each of the Pw-ties has caused th Ag nt o be duly I ) - -, -) i� greemc t , ixecuied for anti on its beliall'i #t) (I 'ViCar "JI(Ile SAN- ISABEL TELECUM, INC, EAGLE COUNTY AIR TERMENIATIONCORPORATION 3JUIVel UF& SAM C SIGNATUR—E- — /Vj WL-, C TITLE i-- V';q f V�W" �,T ATTACHMENT A Monthly Charges: Direct Internet Access, monthly rates: 30 Mbps: $310/month 50 Mbps: $475/month 70 Mbps: $635/month 100 Mbps: $795/month Non-recurring Installation Fees: $16,400* *Installation of Facilities includes all labor and materials necessary to install, test, and activate service to ECAT telco demarcation point. ATTACHMENT B Facilities/Equipment to be placed at customer location: 1) Microwave Modem: DragonWave 18 GHz High Power Licensed — (Licensed Frequency) 2) 12" Microwave Dish: Andrew A -ANT -18G -12-C 3) Cisco 7206 Router 4) Cabling and grounding hardware ATTACHMENT C (Insurance verification) A R : CERTIFICATE OF LIABILITY INSURANCE DA"I THIS CERTIFTC TE IS ISSt- AS A MATTER QF INFORMATION ONLY AND CONFERS Q RIGHTS UPON THE C _L') 21/FLDER, T CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES ERTIFICATE 'HOLDER, THIS BELOW PRE TRIS CERTIFICATE, OF INSURANCE DOES NOT CONSTITUTE A CONTRACT ACT BETWEEAI THE ISSUING ITaISiIREii(S)a AtiTFIOFIIZE[? REPRI SENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER, thIPt� San �I the cetil€Testa ttt�ider is an AC?DITiONAL INSURED,. the pollcy{ies� must be endorsed, If SUSR43GATiAN IS WAIVE4J, subject to AD— the i Pica s anti conditions of rite policy, tialtk policies may requite an endorsement. A statement cn titls �ertltit ate does not taunter ti�I}#s to the certificate braider in Iieu ct stash endorsementis)< ptit?CUCER IRG Underwriters, LLC CONTA Danielle 3chmeling NAME, 991 Shaffer Parkway pNOkiE (303)97'2 -6633 E -M L 43Qsg5r� sass Shite 3i74 A .dSC°�@�3Ttt��2L{jCQ,com Littleton CO 80121 _ . ,rasa#�#tt5'AFFORi}tx�csar�taA�E �� . Hsuadcn� rsSURER A-Bartford _Xnsurance �SAs� StNsu#EREa P.innacol Assuranc ir IE i'F.rlels`�R�%t; INC_ PO Box 3418 = , tt1Si1#ERC - ", jt aiVRCR Q z COVERA4`sESINSURER F CEITIFICAT)r UMBER:CrL141�64,126s 9 � . �Il IS tI{EOCNpLir E t W ? 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