CCR2022.013-Agreement.MOU-Fiber Network
MEMORANDUM OF UNDERSTANDING (MOU)
Muskego-Norway School District, City of Muskego, Fiber Network
Dated: 01/27/2022
This MEMORANDUM OF UNDERSTANDING ("MOU") is made and entered into by and
between the Muskego-Norway School District, and the City of Muskego, hereinafter referred
to as "Member(s)"
PURPOSE:
The purpose of this MOU is to develop a mutually beneficial agreement between the Members
for the common goal of delivering high-speed internet speeds, currently 10 gigabit per second,
to their respective institutions and for interoperability connections between all entities involved
through the use and maintenance of a shared fiber optic network ("Network").
1) NETWORK STRUCTURE
a. During the term of this MOU, the City of Muskego shall be allowed to connect
its own fiber-optic cables with the Network at the Muskego-Norway School District and
shall be given the non-exclusive use of its fiber optic conduit. The City of Muskego will
be responsible, at its sole expense, for construction of fiber-optic cables from its
existing system to the Muskego-Norway School District’s Educational
Services Center (ESC) located at S87W18763 Woods Rd,
Muskego, Wisconsin including all costs of acquiring right-of-way, licenses,
permits, and costs of connection to the Network. The Muskego-Norway School
District agrees to make the necessary changes in the Network at ESC to make
the City of Muskego’s connection functional. The installation, connection, and
maintenance of the City of Muskego’s cables to the hand hole at ESC shall be at the
City of Muskego’s sole expense.
b. During the term of this MOU, the Muskego-Norway School District shall allow access
of its fiber optic conduit for use by the City of Muskego.
2) MAINTENANCE:
a. Each Member will be responsible for the performance and cost of their entity's own
maintenance, repair, and updates to the Network, including but not limited to locating,
engineering assistance, break-fix charges, relocation costs, network enhancements and
dedicated fiber optic expansion. The Members agree that they shall perform such
maintenance, repair, and updates as reasonably necessary, and in a reasonable manner
and time frame, for the efficient operation of the Network.
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3) TERM OF AGREEMENT and MEETINGS:
a. This MOU will be effective as of the date of the last Member's signature to this MOU, and
shall remain in effect for twenty-five (25) years from the date of the last signature.
b. Minimally thirty-six (36) months prior to the expiration of the initial term of this MOU the
Members shall meet to review renewal options.
c. Annual meetings are to be conducted between the Members on a mutually agreed upon
date, or more frequently if determined necessary by the Members. The purpose of the
meetings will be to review items such as bandwidth speeds and necessary upgrades to
the Network, as well as to discuss any other matters the Members wish to address.
4) MEMBERSHIP TERMINATION:
a. Either Member may, after fifteen (15) years from the effective date of this MOU, opt
to terminate this MOU for any reason upon thirty-six (36) months written notice to the other
Member.
b. In the event either Member should: (i) neglect, refuse, or fail to perform under the material
provisions of this MOU; or (ii) disregard applicable laws; or (iii) violate any material
provision of this MOU, the other Member may at any time upon thirty-six (36) months
written notice to the offending Member, without prejudice to any other right or remedy
which it may have for damages resulting therefrom, treat the same as a material breach of
this MOU and terminate this MOU.
c. In the event a Member opts to terminate this MOU, the remaining Member reserves the
right to utilize the fiber assets and any other necessary components of the Network that
have been relied upon for connectivity for a period of up to thirty-six (36) months from the
date of the written notice terminating the MOU. The purpose of this requirement is to
enable the remaining Member to coordinate an acceptable replacement and connectivity
solution without disruption.
d. Upon termination, the terminating Member will no longer be able to utilize assets
contributed to the Network by the remaining Member.
5) MEMBER REQUIREMENTS
a. Each Member shall:
be a government entity or Non-Profit Organization.
maintain WiscNet membership for ISP connectivity
pay all individual WiscNet fees for ISP connectivity.
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6) UNPLANNED OUTAGES:
a. Unplanned outages may occur from time to time due to various circumstances and will be
repaired as soon as reasonably possible by the Member responsible for the outage or the
portion of the Network causing the outage. No Member shall be held liable, financially or
otherwise, to the other Member for any unplanned outages that may occur, unless such
outages are the result of a Member's gross negligence or willful conduct. It is in the best
interest of both Members to maintain maximum uptime for the Network and connection.
Repairs shall be completed as soon as reasonably possible with the expectation that most
repairs will be completed within twenty-four (24) hours of notice that the outage has occurred.
7) PLANNED OUTAGES:
a. A Member planning an outage or potential outage that would affect connectivity of the
other Member shall provide thirty (30) days' prior notice via email to the other Member when
possible, but under no circumstances shall such email notice be provided less than sixty
(60) hours prior to the planned outage. This includes but is not limited to, equipment
upgrades, equipment maintenance, fiber optic network upgrades, and fiber optic network
maintenance.
b. Planned outages must be coordinated for a specific time and date, preferably after normal
business hours. No planned outage may occur without the Member giving notice under
subsection (a) and receiving acknowledgement and confirmation from the other
Member that such notice has been delivered. The notice requirements under Section
8(b) shall not apply to notices required under this section.
8) CONTACTS and NOTICES:
a. Each Member shall provide minimally two (2) contacts who will serve as "all hours" contacts
for the Network. Contact information including names, phone numbers and email
addresses shall be kept current and provided to the other Member. In the event a
contact changes, the Member shall provide the information of the new contact to the
other Member via email.
b. Unless otherwise provided in this MOU, all notices, demands, requests, consents,
approvals, or other instruments required or permitted to be given by any Member pursuant
to this MOU shall be in writing and shall be deemed to have been properly given if sent
by commercial courier or certified mail, postage prepaid, with return receipt requested,
to the other Member at its address for notices. Any notices, demands, requests,
consents, approvals, or other instruments sent to any Member under this subsection
(b) shall also be given via email as a courtesy, but any failure to do so shall not deem
such instruments to have not been served correctly if otherwise properly sent under
this subsection (b). The addresses for notice shall be as follows:
Muskego-Norway School District:
____________________________________
____________________________________
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City of Muskego:
___________________________________
___________________________________
N otice shall be deemed given two (2) business days after mailing. The addresses for notices may
be changed by the Members from time to time by delivery of written notice to the other Member.
9) STANDARD TERMS and CONDITIONS
a. Each Member represents and warrants the use by its employees, officers, agents, and
end users of the Network and any Internet Access Device shall comply with all
applicable laws, ordinances, rules, regulations and restrictions, including without limitation
those related to privacy and electronic communications. Each Member agrees to
cooperate with the other in complying with any requirements applicable to their
respective rights and obligations under this MOU that are imposed by any governmental
agency, regulatory agency or authority. Any non-compliant Member must meet with the
other Member at a special meeting to discuss and attempt remedying the non-
compliance. A non-compliant Member will lose connectivity to joint assets and benefits if
compliance is not achieved within a reasonable time period. Nothing in this paragraph
shall prevent either Member from exercising its right to terminate for breach under Section
4 of this MOU.
b. Each Member ("Indemnifying Member" for purposes of this paragraph) releases and
agrees to indemnify, defend, and hold harmless the other Member, including the
other's employees, officers, governing bodies and members thereof, and agents, from
and against any claim against the other Member directly resulting from or in connection
with:
I. any injury, loss or damage to any person, tangible property or facilities of any third
party including reasonable attorneys' fees and costs to the extent the same arise
out of or result from (1) the negligent acts or omissions of the Indemnifying Member;
and/or (2) a material breach of this MOU by the Indemnifying Member; and/or
II. any claims, liabilities or damages directly arising out of any violation of the
Indemnifying Member of any regulation, rule, statute or order of any local,
state or federal governmental agency, court or other governing authority in
connection with the performance of the Indemnifying Member's obligations under
this MOU.
III. The Members agree to promptly provide each other with written notice of any
lawsuit, judicial, administrative or other dispute resolution action or proceeding
or claim of which it becomes aware and which may result in an indemnification
obligation of the other Member under this MOU.
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c. Nothing contained in this MOU is intended to be a waiver or estoppel of the Members
or their insurers to rely upon the limitations, defenses, and immunities contained
within Wisconsin Statutes Section 893.80. To the extent that indemnification is
available and enforceable, the Members or their insurers shall not be liable in
indemnity, contribution or otherwise for an amount greater than the limits of liability of
municipal claims established by law. Under no circumstances shall a Member be
required to indemnify the other Member for the other Member's own negligence or
intentional conduct.
d. Each Member shall, during the term of this MOU, procure and maintain general
liability insurance coverage, at its own cost, in amounts reasonably adequate to
cover liability for damages arising out of the Members' respective use, repair and
maintenance of the Network. If requested, either Member shall promptly provide the
other with copies of certificates of insurance and policy endorsements. Each such
policy shall name the other Member as additional insureds under said policy on a
primary and noncontributory basis. The policy shall also provide for Waiver of
Subrogation and a thirty (30) Day Notice of Cancellation.
10) MISCELLANEOUS:
a. If any of the terms or provisions contained herein shall be declared to be invalid
or unenforceable by a court of competent jurisdiction, then the remaining provisions
and conditions of this MOU shall remain in full force and effect, and shall be valid
and enforceable to the fullest extent permitted by law.
b. This MOU constitutes the entire agreement between the Members with respect to
the subject matter hereof, and there are no other representations, warranties, or
agreements except as herein provided.
c. This MOU may be executed in one or more counterparts, each of which shall be
deemed an original.
d. The terms and conditions of this MOU shall be binding upon and benefit the
Members hereto and their respective successors.
e. Nothing in this MOU shall be construed as creating a joint venture or partnership
between the Members.
f. The Members may not assign this MOU or any rights, interest or obligations herein.
The Members may not permit the use of the Network by another person or entity
without the prior written consent of the other Member.
g. Any failure by either Member to insist upon the performance of any provision of this
MOU shall not constitute a waiver of any rights under the MOU or future performance
of that provision.
h. This MOU shall be governed by and construed in all respects in accordance with the
laws of the State of Wisconsin. Any legal action regarding the terms of this MOU shall
be brought and maintained in the Circuit Court for Waukesha County, WI.
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i. This MOU may be modified, changed, altered or amended only by express,
written agreement between the Members.
j. The persons signing on behalf of each Member hereby warrant and represent that
they have authority to execute this MOU on behalf of the Member for whom they have
signed.
MUSKEGO-NORWAY SCHOOL DISTRICT
Signature: ____________________________________Date: ________________
Name: _______________________________________________
Title: _________________________________________________
CITY OF MUSKEGO
Signature: ____________________________________Date: ________________
Name: _______________________________________________
Title: _________________________________________________
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