HomeMy WebLinkAbout2001-07-11 Agenda Packet - Board (14) 1
JEW
Apt
Staff Report
To: Board of Directors
From: Alan Harry, Director of Telecommunications Services
Date: July 12, 2001
Subject: Consideration of Broadband Issues - System Design Engineer
RECOMMENDATION: Authorize the General Manager to approve the attached
GENERAL AGREEMENT FOR ENGINEERING SERVICES between Truckee Donner
Public Utility District and THIRDNETWORKS.
BACKGROUND: At the Regular Board Meeting of June 20,2001, 1 submitted for Board review a
matrix summarizing information received through the Districts RFP for Broadband Design
Services. At that meeting, I recommended that the Board direct me to negotiate a contract with
THIRDNETWORKS for the preparation of a Broadband System Design for the District.
During the past two weeks, I have met with THIRDNEf WORK staff drafting the attached
General Agreement for Engineering Services. District Counsel, Steve Gross, has been
intimately involved in the drafting of this document,AND all of his comments have been
incorporated in its final version.
At the Board's request I have reviewed the background of THIRDNETWORKS staff assigned to
our project,and have attached for review their biographies. Further, I reviewed the question as to
whether or not a California licensed PE's stamp is required for final Broadband System design
drawings. It is my understanding that throughout the telecommunications industry, regional
telephone, cable television, and competitive local exchange carriers, PE stamps have not been
required for infrastructure engineering. As such the majority of telecommunication design firms
do not have a licensed PE on staff. However, in the case of THIRDNETWORKS the firm of
Moffat& Nichol Engineers, specifically Mr. Stanley Bums (Ca. Lic.C22042), have been retained
to provide civil or structural engineering stamps that may be required for the project. M & N are
best known as the engineering firm used by Pacific Bell when a licensed engineer is required.
Finally, I have contacted the Cities of Newnan and Monroe Georgia as to their thoughts
regarding Broadband system design work conducted by THIRDNETWORKS as the Design
Engineer sub for Atlantic Engineering Group. In each case I was advised that the system design
was prepared to provide a level of future proofing, while the engineering work conducted
ultimately streamlined the construction process.
•Page 1
GENERAL AGREEMENT FOR ENGINEERING SERVICES
THIS AGREEMENT,hereinafter called"AGREEMENT,"made and entered into by and
between the Truckee-Donner Public Utility District,hereinafter called "CLIENT" and Third
Networks,hereinafter called "ENGINEER."
W ITNESSETH:
WHEREAS, CLIENT has periodic need of professional consultation,engineering,
design, and outside plant construction services; and
WHEREAS, CLIENT has studied the feasibility of creating a broadband network to
provide utility SCADA service,analog and digital cable television services,high-speed Internet
Services,and business-to-business Ethernet services in its service area(hereinafter called the
"Project"); and
WHEREAS,a hybrid fiber coaxial(HFC)network would most appropriately meet the
need for the CLIENT's service area.
NOW,THEREFORE,for and in consideration of the covenants and promises to be
carried out by each party herein,it is agreed by and between the parties that CLIENT shall and
does hereby employ said ENGINEER to perform certain Services as follows:
ITEM A-ENGINEER'S SERVICES
The specific services("Services")that ENGINEER agrees to furnish and the terms ENGINEER
agrees to follow are set forth herein:
I. Strand Mapping. ENGINEER's strand mapping services shall include the
following:
(a) development of an electronic representation of existing CLIENT electric
poles,joint poles,and leased poles required for use in the HFC System
Design(as hereinafter defined);
(b) development of strand maps for all poles included in the HFC System
Design;
(c) development of Global Positioning System(GPS)coordinates for each
pole included in the HFC System Design;
(d) development of a systematic assignment of pole numbers for each pole
included in the HFC System Design;
(e) performance of a house and business count per pole and identification of
the street addresses associated with such house and business count (if
necessary); and,
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(f) production of strand maps in AmoCAD R14 or ArcView software or
other non-proprietary software where ENGINEER shall provide both an
electronic and hardcopy of all final versions of strand maps.
All services described above in this subsection shall hereinafter be referred to
collectively as"Strand Mapping Services." All Strand Mapping Services
deliverables shall be provided within 12 weeks of the project start, subject to
weather or other events out of the control of ENGINEER. Strand Mapping
Services shall be compensated for as part of the General Project Fee.
2. Make-Ready Engineering. ENGINEER's make-ready engineering services shall
include:
(a) performance of all engineering required to reframe poles,transfer
existing facilities on poles or replace poles as required for construction of
the Project;
(b) identification of all poles requiring make-ready work by pole number;
(c) documentation of attachment heights of existing utilities and
identification of affected utilities;
(d) performance of all make-ready work required including,but not limited
to,pole change out,movement of street light brackets or lowering of
CATV; and,
(e) issuance of work orders to CLIENT for dissemination to affected
utilities.
All services described above in this subsection shall hereinafter be referred to
collectively as"Make-Ready Engineering Services." All Make-Ready
Engineering Services deliverables shall be provided within 24 weeks of the
project start, subject to weather or other events out of the control of ENGINEER.
Make-Ready Engineering Services shall be compensated for as part of the
General Project Fee.
3. Hybrid Fiber-Coaxial System Design. ENGINEER shall provide all detailed
engineering drawings necessary to construct,test and install the Hybrid Fiber
Coaxial (HFC) System Design. HFC System Design Services shall include the
following:
(a) conduct strategy discussions and hold discussions concerning equipment
requirements for HFC System Design;
(b) design of HFC System Design on CLIENT landbase map in AutoCAD or
ArcView(using LODE DATA);
(c) development of construction bill-of-materials;
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(d) development of powering design for a ninety (90) volt system;
(e) design of an 870 MHz HFC broadband system with fiber to the node(for
approximately 150 homes);
(f) design of a two-way system capable of supporting video(including
immediate digital tier), voice, and data for future use;
(g) design of system that supports cable modems for high-speed Internet
access;
(h) review of central office conformance with HFC Design System
requirements; and,
(i) provision of engineering notebook including all drawings and
specifications necessary for construction of the Project.
(j) provide Headend design
(k) provide engineering estimate for the costs of construction of the HFC
system and Headend
All services described above in this subsection shall hereinafter be referred to
collectively as "HFC System Design Services." All HFC System Design
Services deliverables shall be provided within 24 weeks of the project start,
subject to weather or other events out of the control of ENGINEER. HFC
System Design Services shall be compensated for as part of the General Project
Fee.
4. Permits. ENGINEER shall secure all permits required for proper execution and
construction of the Project as requested by CLIENT. Such permit services
("Permit Services") shall be compensated on an Hourly Rate&Reimbursable
Expense basis.
5. Electric Plant Inventory. If and when CLIENT issues to ENGINEER a separate
Notice to Proceed for Electric Plant Inventory Services (as defined hereinafter),
ENGINEER shall record relevant electric plant inventory items. Such data shall
be collected and maintained in a Microsoft Access database which shall provide
cross-referenced pole numbers consistent with the AutoCAD and ArcView
displays of the HFC System Design described in subsection 3 of this Item A;
however, such electric plant inventory items shall not be visually displayed on
the HFC System Design AutoCAD or ArcView maps. Electric plant inventory
items shall include inventory of the following:
(a) primary voltage lines;
(b) phase counts per pole (where such inventory shall not include tracing the
phasing);
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(c) transformers (including both location and size);
(d) reclosers;
(e) street lights (including location, estimated type and estimated wattage);
(f) primary fuses;
(g) air brake switches;
(h) in-line blades;
(i) primary wire size estimates;
0) service drops (including number, size and direction);
(k) telephone cable; and,
(1) CATV cable.
All services described above in this subsection shall hereinafter be referred to
collectively as "Electric Plant Inventory Services"and shall be compensated for
as part of the Electric Plant Inventory Fee. All Electric Plant Inventory Services
deliverables shall be provided within 24 weeks of the project start, subject to
weather or other events out of the control of ENGINEER
6. Construction Mana eg ment. Any and all construction management services as
additional services shall be performed upon issuance of a Change Order(as
hereinafter defined).
7. Equipment,Operational Support Systems and Construction Firm Services.
ENGINEER's equipment,operational support systems, and construction firm
services shall include the following:
(a) development of requests for proposals including the review,ranking,
rating, and confirmation availability for any requests for proposals;
(b) evaluation and development of business process requirements;
(c) development of construction budget;
(d) review and advise on bonding requirements in construction phases of the
Project;
(e) review and advise on insurance requirements in construction phases of
the Project; and,
(f) advise on equipment inventory requirements for construction phases of
the Project and for long-term maintenance needs.
10527672v23 Page 4
........._.__....
Such equipment, operational support systems, and construction firm services
("Equipment, Operational Support Systems, and Construction Firm Services")
shall be compensated on a Hourly Rate &Reimbursable Expense basis.
8. Change Order. CLIENT may from time to time,by written instructions or
drawings issued to ENGINEER, make changes in the AGREEMENT, issue
additional instruction,require additional services,and the provisions of the
AGREEMENT shall apply to all such changes,modifications, additions and
deletions with the same effect as if they were embodied in the original
AGREEMENT. Any such change in the services shall be effected by a Change
Order. A"Change Order"is a written instrument prepared by ENGINEER for
CLIENT's approval and, if approved by CLIENT, signed by CLIENT and
ENGINEER setting forth their agreement upon(i) a change in the services, if
any; (ii)the amount of adjustment in the General Project Fee or other
compensation as designated in the Change Order, if any; and (iii)the amount of
any adjustment in the Project schedule, if any. No additional services shall be
reimbursable unless authorized by Change Order as provided in this subsection 8.
ITEM B -COMPENSATION
ENGINEER will be compensated for providing the Services enumerated in Item A as follows:
1. CLIENT shall compensate ENGINEER in accordance with the following:
A. General Project Fee. CLIENT agrees to pay ENGMER as
compensation for the Strand Mapping Services,Make-Ready
Engineering Services,and Hybrid Fiber-Coaxial System Design Services
a General Project Fee to be payable in biweekly partial payments.
Periodic payments shall be differing amounts based upon ENGINEER's
estimate of percentage of the total Strand Mapping Services,Make-
Ready Engineering Services, and Hybrid Fiber-Coaxial System Design
Services completed,based upon either time or production. The General
Project Fee shall be$286,000. Should ENGINEER's services be
provided for more than 220 miles of line, CLIENT shall pay ENGINEER
an additional $1300 per mile of line for General Project Fee
compensation.
B. Hourly Rate &Reimbursable Expense basis. CLIENT agrees to pay
ENGINEER as compensation for the Permit Services,Equipment,
Operational Support Systems, and Construction Firm Services and any
additional services,on an hourly basis in accordance with the hourly
rates described in Exhibit A attached hereto. In addition, any direct
expenses associated with Permit Services or any additional services,
including,but not limited to,travel, subsistence, printing,toll telephone
calls, CAD and other specialized computer time, specialized and/or other
equipment, and other outside professional services, shall in all cases be
reimbursable at actual cost and/or in accordance with the hourly rates
described in Exhibit A attached hereto,as applicable. Any such costs
10527672v23 Page 5
shall be consistent with direct expense rates described in Exhibit B
attached hereto.
C. Electric Plant Inventory Fee. ENGINEER shall be entitled to separate
compensation for Electric Plant Inventory Services provided a separate
Notice to Proceed for such services has been provided by CLIENT.
Should such separate Notice to Proceed be issued, CLIENT agrees to pay
ENGINEER as compensation for Electric Plant Inventory Services an
Electric Plant Inventory Fee to be payable in biweekly partial payments.
Periodic payments shall be differing amounts based upon ENGINEER's
estimate of percentage of total Electric Plant Inventory Services
completed, based upon either time or production. The Electric Plant
Inventory Fee shall pay$135,000. Should ENGINEER's services be
provided for more than 220 miles of line, CLIENT shall pay ENGINEER
an additional $600 per mile of line for Electric Plant Inventory Fee
compensation.
2. Upon execution of contract CLIENT shall remit to ENGINEER ten percent
(10%)of the General Project Fee to assure timely completion of Services.
3. To the extent invoice is disputed, if CLIENT fails to pay ENGINEER within
thirty (30)days after invoices are approved,where such approval shall not be
unreasonably withheld, CLIENT agrees ENGINEER shall have the right to
consider such default in payment a material breach of this entire AGREEMENT,
and upon written notice,the duties, obligations and responsibilities of
ENGINEER under this AGREEMENT are suspended or terminated. In such
event,CLIENT shall promptly pay ENGINEER for all fees,charges,and
Services provided by ENGINEER,ENGINEER may suspend Services on the
basis of such non-performance on the part of CLIENT. When such payments are
restored ENGINEER will continue Services. To the extent an invoice is
disputed,disputed portions of said invoice shall be paid upon resolution of
dispute.
4. CLIENT shall be entitled to withhold ten percent(10%)of each approved invoice
as retainage("Retainage"), to be paid to ENGINEER with final payment.
5. CLIENT agrees that invoices from ENGINEER are correct,conclusive, and
binding on CLIENT unless CLIENT,within fifteen(15)days from the date of
receipt of such invoice,notifies ENGINEER in writing of alleged inaccuracies,
discrepancies, or errors in invoicing.
6. Each invoice submitted by ENGINEER shall itemize the Services performed for
such invoice,and shall include documentation of work performed.
7. Provided the invoice is not in dispute consistent with subsection 3 of this Item,
CLIENT agrees to pay a monthly late payment charge of one percent(1.0%)per
month which will be applied to any unpaid balance commencing thirty(30)days
after the date of the original invoice.
10527672v23 Page 6
8. ENGINEER is not responsible for delay caused by activities or factors beyond
ENGINEER'S reasonable control, including but not limited to, delays by reason
of strikes, lockouts, work slowdowns or stoppages, accidents, acts of God, failure
of client to furnish timely information or approve or disapprove of ENGINEER'S
Services or work product promptly,faulty performance by CLIENT or other
contractors(to the extent such contractors are not subcontractors to ENGINEER)
or governmental agencies. When such delays beyond ENGINEER'S reasonable
control occur, CLIENT agrees ENGINEER is not responsible in damages nor
shall ENGINEER be deemed to be in default of this CLIENT.
9. Excluding ENGINEER's own subcontractors, CLIENT acknowledges that
ENGINEER is not responsible for the performance of work by third parties
including,but not limited to,the construction contractor and its subcontractors.
10, By executing this AGREEMENT,the ENGINEER makes the following express
representations to the CLIENT: (1)the ENGINEER is professionally qualified to
act as the ENGINEER for the Services and is licensed to practice by all public
entities having jurisdiction over the ENGINEER and the Project;(2)the
ENGINEER will maintain all necessary licenses, or other authorizations
necessary to act as ENGINEER for the project until the ENGINEER'S duties
hereunder have been fully satisfied; (3)the ENGINEER's has become reasonably
familiar with project work site and the local conditions under which the Project is
to be designed,constructed and used; (4) the ENGINEER and others employed or
retained by the ENGINEER shall prepare all documents required by the
AGREEMENT,including but not limited to, all contract drawings,plans and
specifications so that same shall be reasonably accurate,coordinated and
adequate for construction and shall be in conformity and comply with all
applicable law,codes,and regulations; (5)the ENGINEER shall perform services
pursuant to generally accepted standards of practice in effect at the time of
performance; and(6)the ENGINEER assumes full responsibility to client for the
negligent acts or omissions of its sub-consultants or others employed or retained
by the ENGINEER in connection with the Project. Any sub-consultant and such
sub-consultant's Scope of Work retained by the ENGINEER for the Project shall
be subject to approval by the CLIENT, such approval not to be unreasonably
withheld, and any contract by and between ENGINEER and any sub-consultant
shall bind such sub-consultant to the ENGINEER to the same extent and degree,
and under the same terms and conditions, as the ENGINEER is bound to the
CLIENT hereunder.
ITEM C-GENERAL TERMS AND CONDITIONS
L ENGINEER shall perform all Services,but it is agreed between the parties to this
AGREEMENT that ENGINEER cannot be responsible for delays occasioned by
factors beyond ENGINEER's control, nor by factors that could not reasonably
have been foreseen at the time this AGREEMENT was executed.
2. ENGINEER shall prepare studies, designs, estimates and reports in accordance
with generally accepted engineering, planning, and/or architectural practices, and
10527672v23 Page 7
makes no other warranty except as expressly set forth herein,either express or
implied, as part of this AGREEMENT.
3. ENGINEER shall not disclose nor permit disclosure of any information
designated by CLIENT as confidential, except to those parties who need such
information in order to properly execute the Services of this AGREEMENT.
4. Neither CLIENT nor ENGINEER shall assign, sublet, or transfer his interest in
this AGREEMENT without the written consent of the other. Nothing herein
shall be construed as creating any personal liability on the part of any officer or
agent of any public body that may be a party hereto.
5. ENGINEER, an Equal Opportunity Employer, now has or will secure at his own
expense,personnel required to perform the Services under this AGREEMENT.
Such personnel are not employees of,nor do they have any contractual
relationship with, CLIENT.
6. ENGINEER shall, during the performance of this AGREEMENT, keep in force
insurance with the following minimum coverage:
Workmen's Compensation Insurance, including Employer's Liability Insurance
for its employees consistent with California state law; Comprehensive General
Liability Insurance,covering bodily injury and property with a combined single
limit$1,000,000 per accident; Comprehensive Automobile Liability Insurance,
including operation of owned, non-owned and hired automobiles, covering bodily
injury with limits $1,000,000 per person and$500,000 per accident; property
damage with limits of$500,000 per accident. ENGINEER shall also procure and
maintain professional liability insurance in the amount of$500,000 covering
claims for damages, losses,costs or expenses,arising out of ENGINEER's
performance of professional services,caused by a negligent error, omission or act
for which the insured is legally liable.ENGINEER shall cause any sub-
consultants retained by ENGINEER to procure and maintain comparable
professional liability insurance coverage in the amount of$500,000 covering
claims for damages,losses,costs or expenses,arising out of ENGINEER's
performance of professional services,caused by a negligent error, omission or act
for which the insured is legally liable. CLIENT is to be designated as additional
insured on all aforementioned policies except Worker's Compensation insurance
and further,ENGINEER shall provide copies of endorsements as evidence of
such additional insured status to CLIENT.
Any of the aforementioned insurance shall not be reduced or cancelled except
upon thirty (30)days written notice to client.
7. Both parties acknowledge that ENGINEER's plans and specifications are
instruments of professional service and shall be the property of CLIENT and
shall not be used by ENGINEER without the consent of CLIENT. It is
understood,however,that the ENGINEER does not represent such material to be
suitable for reuse on any other Project or for any other purpose than as expressly
10527672v23 Page 8
provided for hereunder. Any such reuse by the CLIENT without specific written
verification or adaptation by the ENGINEER will be at risk of the CLIENT and
without liability to ENGINEER. Any such verification of adaptation requested
by CLIENT shall entitle ENGINEER to further compensation at rates to be
agreed upon by CLIENT and ENGINEER. CLIENT agrees to hold harmless and
indemnify ENGINEER against all damages,claims,and losses, including defense
costs, arising out of any reuse of the plans and specifications without the written
authorization of ENGINEER. CLIENT further agrees to defend,indemnify and
hold ENGINEER and any of ENGINEER's sub-consultant's harmless from any
and all liability,real or alleged, in connection with the performance of Services
on this Project,except liability arising from the sole negligence of ENGINEER.
ENGINEER shall defend and indemnify and hold harmless the CLIENT from
and against all liability,claims,loss,costs and expenses arising out of,or
resulting from the negligent performance of the Services provided by the
ENGINEER under this AGREEMENT.
8. ENGINEER has a right to complete all Services to be rendered pursuant to this
AGREEMENT. In the event this AGREEMENT is terminated before the
completion of all Services, unless ENGINEER is responsible for such early
termination, CLIENT agrees to release ENGINEER from all liability for Services
performed. This AGREEMENT may be terminated,by either party, at any time.
If this AGREEMENT is terminated,ENGINEER shall be compensated for work
actually performed up to the date of termination, and for expenses incurred in
anticipation of the completion of the applicable service up to the date of notice of
the termination. CLIENT acknowledges if the Project Services are suspended
and restarted,there may be additional charges due to suspension of the Services
which shall be paid for by the CLIENT as additional services.
Notice of termination shall be given by the terminating party by mailing via
certified mail,a signed return receipt requested,to the principal office of the
other,said notice. The date of notification of termination shall be the date of the
signed return receipt of said notification. The effective date of termination shall
be twenty-four hours after the date of the signed return receipt of said notice.
Upon such termination,ENGINEER agrees to stop the work and to forward to
CLIENT all completed or uncompleted drawings,reports,computer files and
programs,field notes, maps, references, and other work documents within 5
business days.
9. Since ENGINEER has no control over the cost of labor,materials,equipment,or
services furnished by others,or over competitive bidding or market conditions,
ENGINEER's opinions of probable cost,provided for herein, are to be made on
the basis of ENGINEER'S experience and qualifications and represent
ENGINEER's best judgment based on familiarity with the markets,vendors,
materials, and labor associated with the Project in question;but ENGINEER
cannot and does not guarantee that proposals,bids,or the construction costs will
not vary from opinions of probable cost prepared by ENGINEER. If CLIENT
wishes greater assurance as to the probable cost, CLIENT shall employ an
independent cost estimator.
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10. Unless expressly stated to the contrary,the professional services to be provided
by ENGINEER do not include meetings and consultations in anticipation of
litigation or arbitration or attendance as an expert witness in any depositions,
hearing or arbitration. If requested,these Services will be provided by an
amendment to this AGREEMENT, setting forth the terms of compensation to be
received by ENGINEER.
11. It is specifically agreed and understood that ENGINEER is an independent
contractor as that term is legally defined. The duties and responsibilities of
ENGINEER are those contained in this AGREEMENT. The AGREEMENT
shall include all exhibits,attachments, Change Orders, and addenda incorporated
or referenced herein. Otherwise,ENGINEER shall be free of any control of
CLIENT insofar as days and hours of work are concerned, and methods and
procedures utilized to accomplish the net results set forth in this AGREEMENT.
ENGINEER alone shall hire,fire,direct, supervise,and compensate its
employees.
12. ENGINEER shall have an engineer licensed as a Professional Engineer in the
State of California to approve all engineering Services.
13. Engineer shall designate in writing a person to act as ENGINEER's
DESIGNATED REPRESENTATIVE with respect to the Services rendered under
this AGREEMENT. Such person shall have complete authority to transmit
instructions,receive information, interpret and define ENGINEER's policies and
decision with respect to material,equipment, elements,and systems pertinent to
Services and to bind ENGINEER with respect to these items. ENGINEER's
representative shall be authorized to concur with any subcontracts necessary to
accomplish the work as required.
14. Engineer shall give prompt written notice to CLIENT whenever ENGINEER
observes or otherwise becomes aware of any development that affects the scope
or timing of Services or any defect in the work products or performance of
ENGINEER for which CLIENT shall consider ENGINEER responsible.
ITEM D-CLIENT'S RESPONSIBILITIES
CLIENT shall:
1. Upon request from ENGINEER,provide all criteria and full information as to the
requirements for the Project, including design objectives and constraints; space,
capacity, and performance requirements;flexibility and expandability; any
budgetary limitations; and furnish copies of all design and construction standards
which CLIENT will require to be included in any Drawings and Specifications.
2. Assist ENGINEER by providing all available information pertinent to the Project
including previous reports and any other data relative to the feasibility,design,
costs,constraints, or construction of the Project.
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3. Upon identification by ENGINEER and approval by CLIENT of the necessity
and scope of information required,furnish ENGINEER with data,reports,
surveys, and other materials and information required for this Project, all of
which ENGINEER may rely upon in performing his Services,except those
included in ENGINEER's scope of Services.
4. Acquire all real estate interest and provide right-of-entry to all property necessary
to perform the Project Services.
5. Examine all studies,reports, sketches,designs, and opinions of the construction
costs, specifications, drawings, proposals,and other documents presented by
ENGINEER, and promptly render in writing the decisions pertaining thereto
within a reasonable period of time but not to be so delayed on the part of
CLIENT as to prohibit or create undue hardship upon ENGINEER in responding.
6. Designate in writing a person to act as CLIENT's DESIGNATED
REPRESENTATIVE with respect to the Services to be rendered under this
AGREEMENT. Such person shall have complete authority to transmit
instructions,receive information, interpret and define CLIENT's policies and
decisions with respect to material,equipment,elements, and systems pertinent to
ENGINEER's Services and to bind CLIENT with respect to these items.
CLIENT'S representative shall be authorized to concur with any subcontracts
necessary to accomplish the work as required.
7. Give prompt written notice to ENGINEER whenever CLIENT observes or
otherwise becomes aware of any development that affects the scope or timing of
ENGIlVEER's Services or any defect in the work products or performance of
ENGINEER for which CLIENT shall consider ENGINEER to be responsible.
8. Furnish approvals and permits from all governmental authorities having
jurisdiction over the Project,and such approvals and consents from others as may
be necessary for completion of the Project. CLIENT shall bear all costs incident
to compliance with the requirements of this item.
9. CLIENT acknowledges that its right to utilize the Services and work product
provided pursuant to this AGREEMENT will continue only so long as CLIENT
is not in default pursuant to the terms and conditions of this AGREEMENT and
CLIENT has performed all obligations under this AGREEMENT.
ITEM E—GENERAL PROVISIONS
1. This AGREEMENT represents the entire and integrated AGREEMENT between
CLIENT and ENGINEER and supersedes all prior negotiations, representations,
or AGREEMENTS, either written or oral.
2. The terms of this AGREEMENT shall be construed and interpreted under,and all
respective rights and duties of the parties shall be governed by, the laws of the
State of California where exclusive venue shall be Nevada County, California.
10527672v23 Page I I
3. Waiver by either party of any term,condition or covenant, or breach of any term,
condition or covenant, shall not constitute the waiver of any other term,
condition, covenant, or the breach of any other term, condition,or covenant
4. If any term, condition or covenant of this AGREEMENT is held by a court of
competent jurisdiction or arbitrator to be invalid,void or unenforceable,the
remaining provisions of this AGREEMENT shall be valid and binding on
CLIENT and ENGINEER.
5. If any action at law or equity, including an action for declaratory relief, is brought
to enforce or interpret the provisions of this AGREEMENT,or in any way
connected with the performance of this AGREEMENT, or in any way connected
with the performance of this AGREEMENT,the prevailing party shall be entitled
to reasonable attorneys' fees, which fees may be set by the court in the same
action or in a separate action brought for that purpose,in addition to any other
relief to which he may be entitled.
6. In the event of disagreement or dispute between CLIENT and ENGINEER
arising out of or connected with this AGREEMENT which cannot be adjusted by
and between the Parties involved,the disputed matter shall be resolved as
follows:
(A) The Parties agree to mediate any dispute or claim arising between them
out of this AGREEMENT or any resulting transaction before resorting to
arbitration or court action. Mediation fees,if any,shall be divided
equally among the Parties. If either Party commences an arbitration or
court action(including any cross-complaint,counterclaim or third-party
claim)against the other Party based on a dispute or claim to which this
paragraph applies without first attempting to resolve the matter through
mediation,that Party shall not be entitled to recover attorneys' fees,even
if they would otherwise be available to that Party in any such arbitration
or court action.
(B) The Parties agree that any dispute or claim in law or equity arising
between them out of this AGREEMENT or any resulting transaction
which is not settled through mediation shall be decided by neutral,
binding arbitration and not by court action. The arbitration shall be
conducted by a retired judge or justice,unless the Parties mutually agree
to a different arbitrator, who shall render an award in accordance with
substantive California law. In all other respects,the arbitration shall be
conducted in accordance with Part III,Title 9 of the California Code of
Civil Procedure,and the rules and standards of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator(s) may
be entered in any court having jurisdiction. The Parties shall have the
right to discovery in accordance with Code of Civil Procedure §1283.05.
10527672v23 Page 12
IN WITNESS WHEREOF, each of the parties hereto has caused this AGREEMENT to
be executed and delivered on this, the
By:
CLIENT—Truckee Donner
Public Utility District
By:
Title
By:
ENGINEER—Third Networks
By:
Title
10527672v23 Page 13
EXHIBIT A
Hourly Rates
Staff Position Hourly Rate
(a) Corporate Manager............. ........$ 150.00
(b) Project Manager................. ........$ 125.00
(c) Technical Engineer............. ........$ 125.00
(d) Senior Engineer.................. ........$ 105.00
(e) Staff Engineer..................... ........$ 90.00
(f) Project Engineer................. ........$ 75.00
(g) CAD Operator.................... ........$ 60.00
(h) Technician.......................... ........$ 60.00
(i) Administrative Assistant.... ........$ 42.50
10527672v23 Page 14
EXHIBIT B
Direct Expense Rates
Expense Item Rate
(a) Auto Mileage...................... ......-$ 033/mile
(b) Per Diem(no overnight ........$ 40.00/day
stay) ..........................................
(c) Per Diem(with overnight).. ........$ 115.00/day
(d) Printing/Copies................. ........Actual Cost
(e) Toll Calls............................ ........Actual Cost
(f) Equipment rental (if ........Actual Cost
necessary) .................................
(f) Other items (if necessary) .. ........Actual Cost
Expense charges for Reimbursable Expense type work(charged on an hourly
basis)will not exceed 20% of the hourly rate charge. Any extraordinary expense
will be submitted for pre-approval by CLIENT.
10527672v23 Page 15
JUN-26-01 03v05 PM FSG 9252569478 P. 02
Third Networks Backgrounds
Jim Huddleston — Truckee Project Manager—Director of Engineering
■ Jim has 23 years of experience engineering telecommunications networks across the
state of California
■ 20 years with Pacific Bell engineering, designing and managing the construction of
multiple outside plant and electronics projects
■ Designed and managed Pacific Bell's fiber to the curb trial in La Crescent, California
• Engineered and designed an all fiber solution for Pacific Bell's Inglewood central
office using Hybrid Fiber Coax (HFC) for residential customers, and using
Synchronous Optical Network(SONET) Digital Loop Carriers (DLCs) for business
customers
■ Outside Plant Engineer for Pacific Bell in the Los Angeles Area as well as a Network
Engineer for technology evaluation and network planning for the state of California
a Director of Engineering for Advantage 4, California CLEC, designing fiber to the
home solutions of new master planned communities
■ Bachelor of Science in Biology from Principia College
a Masters of Science in Telecommunications Management from Golden Gate
University
Mike Clark—Engineering and Technical Services Manager
■ 25 years of experience in the telecommunications industry working for Charter
Communications and TCI,now AT&T Broadband
• State Engineer for Charter Communication in Georgia
■ Regional manager covering ten states and serving 750,000 subscribers for TCI
a Recipient of the 1991 "Excellence in Engineering Award" from the Society of
Telecommunications Engineers
John Freeman —Outside Plant Engineer
a 24 years of experience in outside plant engineering with Pacific Bell and NorthStar
Communications
■ Evaluated the acquisition of cable and DLC facilities within cable networks,
including determining the requirements of the acquiring company, meeting with
developers, builders, customers and vendors, and evaluating their proposals
a Designed conduit and cable path, as well as room,wall, and floor space
a Created work prints for, supervised and tracked construction and splicing work forces
a Experience with all permit approval process required for outside plant construction
• Designed copper and fiber construction into buildings
■ Extensive experience training and mcmoring incoming outside plant engineers
■ Bachelor of Arts from Mt. San Antonio College
JUN-26-01 03 :05 PN FSG 9252569478
Third Networks Backgrounds
Gary Jordan —Outside Plant Engineer
• Over 35 years experience in the telecommunications industry
• 34 years with Pacific Bell
■ Designed switch and OSP, digital television and data system for 8,000 home master-
planned community. Issued RFPs and selected vendors in a competitive bid for the
above equipment and facilities.
• International Regulatory& Design Consultant, Outside Plant, for Deutsche Telekom
(through Bellcore) for 1998 competitive rate filing with Minister of Public Services
• Cost Manager for Pacific Bell, 13 years. Responsible for all Tariff filings for
Centrex, Custom Calling Services, Direct Inward Dialing. Part of design and
implementation team for OANAD TSLRIC &TELRIC regulatory filings and all
switch dependent product analysis, cc-design of Pacific's Loop Cost Model. SME on
Nan-Recurring cost model for provisioning in RCMAC, Frame, and Field. SME on
Business Systems, Switching, Cable, Structure and IO investment.
• Ten years in switch supervision, switch maintenance, IO facilities, and trunk
maintenance. Five years installation, field maintenance, splicing, special services,
circuit testing.
• AA Fullerton College, Business Administration
■ Various technical training in; SESS &DMS switching systems, IAESS switching
systems and translations, project management,process re-engineering, economic
analysis, business analysis, cost accounting
Dave Mendola—Outside Plant Engineer
■ 25 years of experience in outside plant construction and operations with Pacific Bell,
MCI and Worldcom
■ Managed the construction of downtown Los Angeles outside plant construction and
repair
■ Responsible for the installation, operation and maintenance of Pacific Bell's outside
plant network in the financial district of San Francisco
Alan Priest—Engineering and Operations Services Consuutant
■ I 1 years of telecom experience in operations, business planning and regulatory work
■ Worked for SBC Communications in their Cable Television, Telephone, Wireless and
Internet Service Provider companies
• Worked at NorthPoint Communications, a DSL broadband provider, and an Internet
Infrastructure Start-up
• Built an HFC network in England,which provided CATV as well as telephone
service over the same distribution fiber, splitting to coaxial cable and twisted pair
cable at the curb
■ Supervised operations crews in Texas as well as managed ISP and CLEC business
development projects
• Electrical Engineering degree from the Georgia Institute of Technology
• Masters in Business Administration from Harvard