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HomeMy WebLinkAboutRes 30-19 08/07/2019 Authorizing the Village of Mount Proapect to enter into an intergovernmental agreement with the Mount Prospect LibraryRESOLUTION NO. 30-19 A RESOLUTION AUTHORIZING THE VILLAGE OF MOUNT PROSPECT TO ENTER INTO AN INTERGOVERNMENTAL AGREEMENT WITH THE MOUNT PROSPECT LIBRARY WHEREAS, the Village of Mount Prospect is a home rule municipality and pursuant to the Illinois Constitution, Article VII, Section 10 has certain powers which it is exercising; and WHEREAS, Section 10 of Article V11 of the Constitution of the State of Illinois and the Intergovernmental Cooperation Act at ILCS 220/1 et.seq. allow and encourage intergovernmental cooperation; and WHEREAS, the President and Board of Trustees of the Village of Mount Prospect has deemed that the best interests of the Village may be served be entering into intergovernmental agreements; and WHEREAS, the Village of Mount Prospect and the Mount Prospect Public Library agree that it would be in the best interest of the citizens to allow the Village of Mount Prospect to enter into an Intergovernmental Agreement for shared use of a fiber-optic circuit and related services. NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS ACTING IN THE EXERCISE OF THEIR HOME RULE POWERS: SECTION ONE: The President and Board of Trustees of the Village of Mount Prospect are hereby authorized to execute the Intergovernmental Agreement a copy of which is attached hereto and hereby made a part hereof as Exhibit "A". SECTION TWO: That this Resolution shall be in full force and effect from and after its passage and approval in the manner provided by law, AYES: Grassi, Hatzis, Hoefert, Zadel NAYS: None ABSE--)4T: Rogers, Saccotelli PASSED and APPROVED this 7th day of August 2019. Arlene A. Juracek/Aayor ATTTJTt At '�4 Karen M. Agora os, Village Clerk RESOLUTION NO. 30-19 A RESOLUTION AUTHORIZING THE VILLAGE OF MOUNT PROSPECT TO ENTER INTO AN INTERGOVERNMENTAL AGREEMENT WITH THE MOUNT PROSPECT LIBRARY WHEREAS, the Village of Mount Prospect is a home rule municipality and pursuant to the Illinois Constitution, Article VII, Section 10 has certain powers which it is exercising; and WHEREAS, Section 10 of Article VII of the Constitution of the State of Illinois and the Intergovernmental Cooperation Act at ILCS 220/1 et.seq. allow and encourage intergovernmental cooperation; and WHEREAS, the President and Board of Trustees of the Village of Mount Prospect has deemed that the best interests of the Village may be served be entering into intergovernmental agreements; and WHEREAS, the Village of Mount Prospect and the Mount Prospect Public Library agree that it would be in the best interest of the citizens to allow the Village of Mount Prospect to enter into an Intergovernmental Agreement for shared use of a fiber-optic circuit and related services. NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS ACTING IN THE EXERCISE OF THEIR HOME RULE POWERS: SECTION ONE: The President and Board of Trustees of the Village of Mount Prospect are hereby authorized to execute the Intergovernmental Agreement a copy of which is attached hereto and hereby made a part hereof as Exhibit "A". SECTION TWO: That this Resolution shall be in full force and effect from and after its passage and approval in the manner provided by law. AYES: Grossi, Hatzis, Hoefert, Zadel NAYS: None ABSENT: Rogers, Saccotelli PASSED and APPROVED this 7th day of August 2019. Arlene �AJura ayor�� AT��T Karen M. Agora s, Village Clerk-- AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT BETWEEN THE VILLAGE OF MOUNT PROSPECT AND THE MOUNT PROSPECT PUBLIC LIBRARY FOR SHARED USE OF A FIBER-OPTIC CIRCUIT This Amended and Restated Intergovernmental Agreement ("Agreement") is entered into as of , 2019 (the "Effective Date") by and between the Village of Mount Prospect, an Illinois Home Rule Municipal Corporation (the "Village"), and the Mount Prospect Public Library, an Illinois Village Public Library (the "Library") (collectively, the "Parties" and each, a "Party"), WHEREAS, Article VII, Section 10 of the Illinois Constitution of 1970 and the Intergovernmental Cooperative Act, 5 ILLS 220/1 et seq., authorize public agencies to contract or otherwise associate among themselves to obtain or share services, and to exercise, combine or transfer any power or function, in any manner not prohibited by law; and WHEREAS, the Village and the Library are "public agencies" as defined in the Intergovernmental Cooperative Act, 5 ILCS 220/1 et seq.; and WHEREAS, the Boards of Trustees of the Village and the Library find it in the public interest to share use of a fiber-optic circuit and related services; and WHEREAS, the Library has contracted with a certain telecommunications service provider (the "TSP") to obtain the fiber-optic circuit and related services; and WHEREAS, the Village has agreed to reimburse the Library for certain of the costs related to the fiber-optic circuit and related services; and WHEREAS, the Parties previously executed that certain Intergovernmental Agreement dated as of May 20, 2009 (the "2009 Agreement"), the Term (as defined therein) of which pursuant to Section 29 thereof was to extend through June 12, 2015, but under which 2009 Agreement the Parties have continued to perform since June 12, 2015; and WHEREAS, the Parties desire to amend and restate the terms of the 2009 Agreement to memorialize the terms applicable to the Parties since June 12, 2015, to extend the Tenn thereof and for the other purposes set forth herein. NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated into this Agreement, the promises and consideration set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Services Description. The TSP will provide certain services described in the service agreement between the Library and the TSP (the "TSP Agreement"). The Library shall permit the Village to utilize the portion of such services as set forth in Exhibit A, attached hereto and incorporated herein by reference, (the "Services") and, to the _ext'e­_nt set forth herein shall coordinate any installation, maintenance, repair and modification of the Services. Each Party is responsible for maintenance and support of its own connection, including but not limited to cabling, conduit and equipment, from the patch panel to each CHICAGO/#1890705.94 Party's network. A diagram depiction of the circuit and various equipment is set forth in Exhibit B. 2, Limitation on the Services. The Village agrees and acknowledges that the TSP's ability to provide the Services, including but not limited to the installation, maintenance, repair and modifications, and, as a result, the Village's ability to access and utilize the Services, is Subject to the availability and operational limitations of the necessary systems, facilities and equipment. 3. Use of the Services. The Village's use of the Services shall at all times comply with (i) applicable laws, regulations and ordinances; and (ii) any instructions for and limitations on use as provided from time to time to the Village by the Library, which the Library deems to be reasonably necessary to comply with applicable, laws, regulations and ordinances or that are reasonably necessary for the Library to continue to allow the Village to utilize the Services. Neither Party shall take any action or make any omission that would cause the other Party to breach this Agreement or the TSP Agreement, or to fail to comply with applicable laws, regulations, rules or ordinances. 4. Access to Premises, (a) To carryout the purposes of this Agreement, it may be necessary for one Party and/or its agents to access the other Party's premises. The Party requiring access to the other Party's premises shall request permission in advance and, if granted such permission, shall access such premises in such a manner and at such time so as not to disrupt or interfere with the conduct of business. Each Party understands that by refusing to grant the other Party, its agents or the TSP access to its premises, it may hinder the ability of the party requiring access to perform its obligations pursuant to this Agreement or the TSP Agreement. A Party that refuses to grant the other Party access to its premises, expressly agrees that the Party requiring access shall not be liable for any damages or breaches of this Agreement that result from the Party requiring access being unable to access the other Party's premises. (b) The Village shall provide to the Library such information as shall be reasonably necessary to utilize the Services and shall keep the Library informed of developments in the Village's business or operations that may impact the Services, The Library may rely on any information provided by the Village and assumes no liability for any damages or costs that result from errors or omissions in such information. 5„ Equipment and Other Items. Upon the termination of this Agreement, each Party shall retain equipment and other items that have been installed and remain on their respective premises, 6. Compliance with Rules. The Village shall comply with all reasonable rules and regulations adopted by the Library after consultation with the Village, so long as those rules do not interfere with the Village's use of the Services as permitted hereunder. The Village CHICAGO/# 1890705,14 shall also comply with such rules and regulations, as mutually agreed to by the Parties, that are necessary for the proper and orderly maintenance and provision of the Services. Modifications. Upon completion of the installation of the fiber-optic circuit (or any replacement thereof) ("Circuit") to the Village, the Village shall not make any modifications to the Circuit that would limit or negatively affect the Library's use of the fiber optic services provided by the TSP. Technical Support. In the event the Services are not functioning properly or require maintenance, the Village shall notify the Library and the Library shall, within four (4) hours of receipt of such notice, contact the TSP to arrange for maintenance or repairs. The Library's responsibility for maintenance, repairs and the proper functioning of the Services shall be limited to maintenance and repair of the Patch Panel, the fiber-optic cable and connections between and for the Library's Router and Patch Panel, as well as to notify the TSP of a problem and to work with the TSP to resolve the problem. The Library shall provide the Village with a telephone number that the Village may use to notify the Library outside of the Library's normal business hours if the Services are not functioning properly or require maintenance. 9. Payment for the Services. (a) The Parties shall allocate the use of, and the cost of the Services that the TSP charges the Library ("Fees"), as set forth in this Paragraph 9, and in accordance with the allocation reflected in Exhibit A. (b) The Village agrees and acknowledges that the Library will pass on to the Village only the Village's allocated share of the cost that the Library actually incurs or will incur from the TSP or otherwise in connection with the Services, and the Library will not include any "mark-ups" in the Fees charged to the Village or gain a profit as a result of this Agreement with the Village. (c) The Village shall pay the Library 100% of the costs that are incurred by or will be incurred by the Library that pertain to any configuration, installation and implementation as related to the Services, which includes but is not limited to TSP router configuration, purchase and installation of the fiber optic cable and housing, terminators and connections and Patch Panel, Estimates of these costs shall be agreed to in writing by the Parties in an updated Exhibit C. (d) The Village shall pay 50% of the costs that are incurred by or will be incurred by the Library from the TSP that pertain to maintenance, repairs and modifications, except as otherwise provided in this Agreement. (e) If either Party requests that Services be modified, each Party shall bear the cost of such modification based on its usage of the modified Services. A Party shall be solely responsible for the costs associated with maintenance or repairs that result from such Party's actions or omissions. CHICAGON 1890705.14 (f) The Village shall pay to the Library a monthly fee that represents the percentage cost of the total circuit capacity of the Services provided to the Library by the TSP that the Village is using. Estimates of the initial monthly fees are set forth in 14xhibit .!I- C. The Library shall invoice the Village for the cost due on a quarterly basis, and the Village shall remit payment to the Library within thirty (30) days of receipt of the invoice. 10, Cooperation. The Parties agree to work in good faith to mutually resolve any problems occurring or arising out of the Services and/or the performance of this Agreement. The Parties agree to do all things reasonably necessary or appropriate to carry out the terms, provisions and objectives of this Agreement, 11. Confidentiality. During the Tenn (defined below) of this Agreement, the Parties may disclose Confidential Information (defined below) to each other. "Confidential Information" means ideas, know-how, trade secrets, computer programs, technical information and other confidential information necessary to configure data equipment and to operate and maintain Services, which is disclosed by a disclosing Party to a receiving Party pursuant to this Agreement. Written or other tangible Confidential Information must at the time of disclosure be identified and labeled as Confidential Information belonging to the disclosing Party. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within fifteen (15) days after disclosure, unless such information is of the type which a reasonable person would recognize as being confidential and proprietary to the Party disclosing same, in which case such information shall be deemed Confidential Information. Neither Party may disclose any of the other Party's Confidential Information to a third party without written permission from the Party whose Confidential Information is being disclosed. The Village, hereby, in writing expressly consents to the disclosure of such of its Confidential Information to the TSP or those parties authorized by the TSP or the Library as reasonably necessary to provide the Services, subject to the Library obtaining assurances that such parties shall maintain that Confidential Information in confidence. Confidential Information shall not include, and the above restrictions will not apply to, any information that (i) is already known to the receiving Party on a non -confidential basis, (ii) becomes publicly available through no wrongful act of the receiving Party, (iii) is independently developed by the receiving Party without benefit of the disclosing Party's Confidential Information, or (iv) is disclosed by the disclosing Party to a third party without an obligation of confidentiality. All Confidential Information of a Party is and will at all times remain the property of such Party and will, except as otherwise expressly provided herein, be either returned or destroyed upon the request of such Party and, in any event, upon the expiration or termination of this Agreement, except as required to comply with any applicable laws, rules and regulations. Such Party shall certify in writing to the other Party that all Confidential Information has been returned or destroyed, and, to the extent any Confidential Information has been retained to comply with applicable laws, rules or regulations, a description of the Confidential Information so retained. The terms of this Section 11 shall continue to apply to any Confidential Information so retained. 4 C1 I ]CAGO/#1 890705.14 12, Insurance. The Village and the Library agree to maintain, at their own cost and expense, general liability insurance including contractual liability insurance insuring the other as a "named insured." Said insurance shall be in the following forms and amounts: (a) General Comprehensive Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury, death and property damage. The general aggregate shall be twice the required occurrence limit. (b) Public Liability: $1,000,000 combined single limit per occurrence. Minimum general aggregate shall be no less than $ 1,000,000. (c) Workers' Compensation: Workers' Compensation limits as required by State statute. (d) Employer's Liability: not less than $1,000,000, (e) Excess Liability: $2,500,000 per occurrence and in the aggregate. (f) The insurance requirements herein may be satisfied through self-insurance of the insurance coverage and limit requirements set forth above. 13. Indemnification. and Hold -Harmless Provision. (a) The Library shall defend, protect, indemnify, and hold the Village and its directors, officers, employees and agents ("Village Affiliates") harmless against and from any and all injuries, costs, expenses, liabilities, losses, damages, injunctions, suits, actions, fines, penalties, and demands of any kind or nature (including reasonable attorneys' fees) arising in connection with any and all third party claims arising directly or indirectly out of (i) injuries and/or damages occurring on the Library's Premises; (ii) any intentional acts or negligence of the Library or any of its directors, officers, employees and agents ("Library Affiliates"); or (iii) any breach or default in the performance of any obligation on the Library's part to be performed under this Agreement. This indemnity shall not include the intentional or negligent acts or omissions of the Village or Village Affiliates. (b) The Village shall defend, protect, indemnify, and hold the Library and Library Affiliates harmless against and from any and all injuries, costs, expenses, liabilities, losses, damages, injunctions, suits, actions, fines, penalties, and demands of any kind or nature (including reasonable attorneys' fees) arising in connection with any and all third party claims arising directly or indirectly out of (i) injuries and/or damages occurring on the Village's Premises; (ii) the Village's use of the Services, including but not limited to the Village's improper use of the Services or information or any content or data transmitted over any network or facilities of the TSP in connection with the Services; (iii) any intentional acts or negligence of the Village Affiliates; or (iv) any breach or default in the performance of any obligation on the Village's part to be performed under this Agreement. This indemnity shall not include the intentional or negligent acts or omissions of the Library or Library Affiliates. 5 CHICAGO/# 1890705.14 (c) For purposes of this Agreement the "Village's Premises" shall mean the Mount Prospect Village Hall server room at 50 South Emerson Street, Mount Prospect, Illinois and the area in the Village's parking garage that houses conduit for the Services at 30 South Emerson Street, Mount Prospect, Illinois. The "Library's Premises" shall mean the server room (room 159, located on the Library's first floor) and the yard storage room (room 008, located in the Library's parking garage basement) at 10 South Emerson Street, Mount Prospect, Illinois. 14. Limitations of Liability. (a) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND THE LIBRARY (i) MAKES NO REPRESENTATIONS, GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, ARISING BY LAW OR OTHERWISE WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, GUARANTEES OR WARRANTIES .ARISING FROM TRADE USAGE, COURSE OF DEALING OR PERFORMANCE OR REGARDING THE COMPLETENESS OR RELIABILITY OF THE SERVICES OR RESULTS TO BE OBTAINED FROM USING THE SERVICES AND (ii) DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF NON -INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. (b) NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES RELATED TO LOST PROFITS, LOSS OF USE AND LOSS OF DATA OR FAILURE TO REALIZE SAVINGS OR BENEFITS) ARISING UNDER THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE TOTAL AGGREGATE LIABILITY OF THE LIBRARY AND ITS SUPPLIERS, AGENTS, DIRECTORS, OFFICERS AND/OR EMPLOYEES UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO PROVEN DIRECT DAMAGES. WITHOUT LIMITING THE FOREGOING, THE LIBRARY SHALL NOT BE LIABLE FOR (i) THE SERVICES NOT BEING PROVIDED TO THE VILLAGE DUE TO THE ACTS OR OMISSIONS OF THE TSP, INCLUDING BUT NOT LIMITED TO THE TSP NOT PROVIDING THE SERVICES TO THE LIBRARY; (ii) THE LIBRARY'S INABILITY TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AS A RESULT OF THE TSP'S ACTIONS OR OMISSIONS; AND/OR (iii) ANY ACTIONS OR OMISSIONS OF THE TSP OR ITS AGENTS. NOTWITHSTANDING THE FOREGOING, THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 14(b) SHALL NOT BE APPLICABLE TO ANY INDEMNIFICATION OBLIGATIONS CH ICAGO/# 1890705.14 HEREUNDER OR DAMAGES RESULTING FROM VIOLATIONS OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT. 15. Force Majeure. Except in the case of payment of amounts due, neither Party will be liable to the other Party for any failure or performance due to any cause beyond that Party's reasonable control, including acts of God, fire, explosion, vandalism, terrorism, cable cut, storm or other similar occurrence, any law, order, regulation, direction, action or request by any government, civil or military authority, national emergencies, insurrections, riots, wars, labor difficulties, supplier failures, shortages, breaches or delays or preemption of Services or failure to restore Services, or, in the case of the Library, delays caused by the TSP, the Village or the Village's equipment or vendors. 16. Notice. All notices required to be provided under this Agreement shall be in writing and served either (i) personally during regular business hours; or (ii) by registered or certified mail, return receipt requested, properly addressed with postage prepaid and deposited in the United States mail. Notices served personally shall be effective upon receipt, and notices served by mail shall be effective upon receipt as verified by the United States Postal Service. All notices shall be addressed as follows: Rejazg�. KL Village Manager Village of Mount Prospect 50 South Emerson Street Mount Prospect, IL 60056 (847) 392-6000 With a copy to: Klein, Thorpe and Jenkins, Ltd 20 N. Wacker Dr. Suite 1660 Chicago, IL 60606 312-984-6439 The Library Executive Director Mount Prospect Public Library 10 South Emerson Street Mount Prospect, IL 60056 (847) 253-5675 With a copy to: Tom Hancuch Vedder Price P.C. 222 N. La Salle St., #2400 Chicago, IL 60601-1003 (312) 609-7750 17, Binding. All covenants, promises, representations and agreements herein contained shall be binding upon, apply and inure to the benefit of the Village and the Library and their respective heirs, legal representatives, successors and assigns. 18, Waivers. The rights and remedies hereby created are cumulative, and the use of one remedy shall not be taken to exclude or waive the right to the use of another, No waiver by the Village or the Library of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by the Library or the Village of the same or any other provision. A Party's consent to or approval of any act shall not be deemed to render unnecessary obtaining such Party's consent to or approval of any subsequent act. 7 CHJCAGO/# 1890705,14 No waiver shall be effective unless it is in writing, executed on behalf of the Village or the Library by the person to whom notices are to be addressed. 19. Entire Agreement. The provisions set forth herein constitute the entire agreement of the Parties regarding the matters addressed in this Agreement and supersede any prior agreements or representations, as it is the intent of the Parties to provide for complete integration within the terms of this Agreement. No provision hereof may be changed or modified unless such change or modification is in writing and duly approved by the Parties, 20. Invalidity of Agreement. If any provision of this Agreement is found to be illegal, invalid or void, the remaining provisions shall not be impaired and this Agreement shall, to the extent reasonably practicable, be interpreted to give effect to the Parties' intent. 21. Choice of Law and Claims. This Agreement shall be governed by the laws of the State of Illinois. The Circuit Court of Cook County, Illinois, shall have exclusive jurisdiction over any disputes arising under this Agreement, and each of the Parties hereby consents to such Court's exercise of jurisdiction. Any legal action arising under this Agreement must commence within two (2) years after the cause of action arises. 22. Assignment. Neither Party shall have the right to assign any rights or obligations under this Agreement, in whole or in part, without the prior written approval of the other Party. Any attempted assignment or transfer in violation of the foregoing shall be null and void. 23. Benefit of Contracting Parties. This Agreement is entered into solely for the benefit of the contracting Parties, and nothing in this Agreement is intended, either expressly or impliedly, to provide any right or benefit of any kind whatsoever to any person or entity who is not a party to this Agreement, or to acknowledge, establish or impose any legal duty to any third party. Nothing in this Agreement shall be construed as an express and/or implied waiver of any common-law and/or statutory immunities and/or privileges of the Library and/or the Village, and/or any of their respective officials, officers and/or employees. 24. Survival. Those terms and conditions that are necessary to carry out the purposes of this Agreement shall survive the termination of this Agreement. 25. Counterparts. This Agreement may be executed in counterparts, any of which shall be deemed an original. 26. Authority to Execute. Execution of this Agreement by the Village is authorized by an ordinance passed by the President and Board of Trustees of the Village on 2019. Execution of this Agreement by the Library is authorized by a resolution passed by the Board of the Mount Prospect Library on _, 2019. The Parties represent and warrant to each other that they have the authority to enter into this Agreement and perforin their obligations hereunder. 27. Titles. The headings and titles of this Agreement are for convenience only and shall not influence the construction or interpretation of this Agreement. CHICAGOI# 1890705.14 28. Third Parties. Nothing contained in this Agreement, nor any act of the Village or the Library, shall be deemed or construed by any of the Parties hereto or by third persons to create any relationship of third party beneficiary, principal, agent, limited or general partnership, joint venture or any association or relationship involving the Village and the Library, except as set forth in this Agreement. 29, Term. The term of the Agreement shall begin on the Effective Date and shall extend through June 12, 2020 (the "Term"). Unless either Party notifies the other in writing at least ninety (90) days prior to the end of the then -current term of its intention not to renew this Agreement, this Agreement will automatically renew for successive additional one (1) year periods. 30. Termination of this Agreement Due to Breach of a Party. In the event of any material breach of this Agreement by either Party, the breaching Party (the "Breaching Party") shall upon written notice from the other Party (the "Non -Breaching Party") proceed promptly to cure or remedy such breach within fifteen (15) days after receipt of such notice; provided, however, that in the event such breach is capable of being cured but is not cured within such fifteen (15) day period and the Breaching Party commences to cure within said fifteen (15) day period and proceeds to cure with due diligence, such Party shall not be deemed to be in default under this Agreement. In case such action is not taken or not diligently pursued or the breach shall not be cured or remedied within the above time, the Non -Breaching Party may terminate this Agreement or institute such proceedings as may be necessary or desirable in its opinion to cure and remedy such breach, including but not limited to proceedings to compel specific performance by the Breaching Party of its obligations. The rights of the Parties to this Agreement, whether provided by law or this Agreement, shall be cumulative, and the exercise by either Party of any one or more of such remedies shall not preclude the exercise by it of any one or more of such remedies in relation to the same breach by the other Party. Notwithstanding anything contained herein to the contrary, except for obligations of a Party under Section 13, all monetary damages resulting from a breach of this Agreement shall be limited to the Non -Breaching Party's actual out-of-pocket costs and expenses resulting from such breach, along with all costs and expenses, including reasonable attorneys' fees, incurred by the Non -Breaching Party in enforcing this Agreement. In the event of any litigation between the Parties hereto resulting from a breach of this Agreement, the prevailing Party in such litigation, as determined by final judgment, shall be entitled to an award of its attorneys' fees and costs incurred in such litigation, 31. Amendment and Restatement. This Agreement constitutes an amendment and restatement of, and a replacement and substitution for, the 2009 Agreement as of the Effective Date. Upon execution of this Agreement by the Parties, this Agreement shall amend and supersede and is substituted for the 2009 Agreement in its entirety. IN WITNESS WHEREOF, the parties have caused their authorized representatives to 9 CHICAGO/#] 890705,14 IN WITNESS WHEREOF, the parties have caused their authorized representatives to execute this Agreement as of the Effective Date. VILLAGE OF MOUNT PROSPECT By:_ Printed Name:k/ Title: Mayor Attest: Printed Name: Title: Village Clerk ......... . . .... 10 CHICAGOM1890705,14 MOUNT PROSPECT PUBLIC LIBRARY By:- ­ Printed Name: Title-PIrrmik-nt(,mc-4 P ,,D moi; Attest: Printed Title: Secretary Pik Exhibit A The Services provided by the TSP shall include a fiber optic circuit. The Circuit will carry Internet bandwidth for the Library and the Village. Each Party's share of the fiber optic circuit bandwidth is set forth below: Effective June 13, 2015 — [June 15], 2019: Fiber Optic Bandwidth Library (60%) Village (40%) Circuit ......-One Circuit ....�, .__._ .w...... .._....... ____...�._mmmm...�..........._� ,,,,,,..._.w.�W__...._ 250M _. _._....__ �.._. ........_......_.._..... 150M _.....__._ . ._..._._......._. ___M._ _.w_.. loom ... _m_._...... .ww_ Effective [June 15], 2019: Fiber Optic _.._...�.�._...._.. ..�..�.....�.......�.�.�.�.�.�...�.. Bandwidth ....._ Library (60%) �.w--Village (40%)w�_ _�_... Circuit . Circuit OneSOOM _._....................._.............. 500M .M ......... 300 ._....... _a....w.-___...a___....M......_.....w .... .�._.. _._ .._._....... 200M CHICAGO/#1890705.14 Ef" Ir Z -!I it I