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HomeMy WebLinkAbout19. Telecom Board Agenda Packet - November 1, 2023 BOARD MEMBERS Andrew Van Fleet Board Chair Theodore Batemon Ritch Kurtenbach Mike Young Amy Wienands City Council Liaison: Rob Nichols November 1, 2023 City Council Chambers 4:00 p.m. 1. Roll call. 2. Approval of the agenda, as presented. 3. Approval of minutes of October 18, 2023 regular session, as presented. 4. Motion approving reimbursement to the City of Waterloo for the purchase of cabinets and splitters, in the amount of $20,176.31. 5. Motion approving the creation of a Sales Manager position and a Strategic Communications Manager position within Waterloo Fiber, and eliminating the Sales and Marketing Manager position. 6. Resolution approving an Incentive Pay Policy for Waterloo Fiber employees. 7. General comments from staff, consultants, and board members. 8. Adjourn. Kelley Felchle Board Secretary WATERLOO Telecommunications Utility Board of Trustees TELECOMMUNICATIONS UTILITY BOARD OF TRUSTEES Harold E. Getty Council Chambers October 18, 2023 4:00 p.m. 1. Roll Call Members present: Van Fleet, Kurtenbach, Young, and Wienands. Absent: Batemon 2. Approval of Agenda. Moved by Young seconded by Wienands that the Agenda, as presented, be approved. Voice- vote Ayes: Four. Motion carried. 3. Approval of Minutes. Moved by Kurtenbach seconded by Young that the minutes of October 4, 2023 Regular Session, as proposed, be approved. Voice-vote: Four. Motion carried. 4. Resolution approving preliminary plans, specifications, form of contract, etc. and resetting date of bid opening as November 9, 2023 and public hearing as November 15, 2023, in conjunction with the FY2023 Drops and Installation of a Fiber-to-the-Premise Network, Contract No. 1094. Warren Lyon, Magellan Advisor, explained that the dates of the bid opening and public hearing were changed however the plans and specifications will remain the same. He further provided an outline of how the project will progress. The board members discussed the timeline for the project with Warren Lyon and Eric Lage, General Manager. Moved by Kurtenbach seconded by Wienands. Roll call-vote Ayes: Four. Motion carried. Resolution No. 2023-027. 5. Motion approving a Network Engineering Consulting Agreement with Fuse Technic, LLC, of Cedar Falls, Iowa, for an hourly rate of $175 per hour and authorizing the General Manager of Telecommunications to execute said document. Eric Lage, General Manager, provided an overview of the agreement and explained that the purpose of the agreement is to fill in for a staff position that we would be filling in the future. The board members discussed the terms of the agreement with Mr. Lage. Moved by Young seconded by Wienands. Voice-vote Ayes: Four. Motion carried. 6. Motion approving a records request policy. Kelley Felchle, Board Secretary, provided an overview of the policy. Moved by Kurtenbach seconded by Young. Voice-vote Ayes: Four. Motion carried. 7. Motion approving Change Order No. 2023-0001for a decrease of $2,120,308.32, Change Order No. 2023-0002 for a decrease of $92,826.47, Change Order No. 2023-0003 for a decrease of $878,877.12, and Change Order No. 2023-0004 for an increase of $8,092.00, in conjunction with the Construction of a Backbone and Fiber-To-The-Premise Project, Contract No. 1088. Warren Lyon, Magellan Advisors, provided an overview of the change orders. Change Order 1-3 are for material changes and the fourth is for sales tax for the pre-fab building. Moved by Kurtenbach seconded by Wienands. Voice-vote Ayes: Four. Motion carried. Page 2 8. Motion approving an Independent Contractor Services Agreement with SmartSource Consulting, LLC, and authorizing the General Manager to execute said document. Mr. Lage provided an overview of the agreement and shared that his rate would be $135 per hour. Moved by Young seconded by Kurtenbach. Voice-vote Ayes: Four. Motion carried. 9. Motion approving a revised Waterloo Fiber Purchasing Policy. Eric Lage provided an overview of changes to the policy. The changes primarily allow for an exemption for purchasing marketing needs to give flexibility to make decisions and spend funds that are within the budget. Moved by Kurtenbach seconded by Wienands. Voice-vote Ayes: Four. Motion carried. 10. Motion creating Level 1 and Level 2 Field Technician positions within Waterloo Fiber, and eliminating the Field Locates and Construction Technician position. Eric Lage explained that the original staffing plan called for the Field Locates and Construction Technician position. After discussing with staff he shared that it would be optimal to have cross trained Level 1 and Level 2 Field Technician positions. Moved by Kurtenbach seconded by Young. Voice-vote Ayes: Four. Motion carried. 11. General comments from staff, consultants, and board members. Eric Lage, General Manger provided an update on several items. There is a billboard at 4th and Washington, and a dasher board at Waterloo Black Hawks. Amperage is working on press releases and will be sending out a press release regarding our new logo and branding. Tara Thomas-Gettman is working to set up an appearance on the Steele Report sometime in November. He has been working on employee benefits and handbook with PDCM and Kelley. We are looking at sharing a route with CFU where we could possibly put in a CFU conduit and split the cost with CFU. Work continues on the pre-fab shelter, interviews are scheduled for a sales and marketing manager this week, the NOC Supervisor, and field tech position. Mr. Van Fleet questioned if the new branding will be going on the temporary website. Eric Lage confirmed Mr. Van Fleet commented that Amperage would reduce the time to build the new website from 24 weeks to 14-16 weeks. He added that the rates are on the website now as well. Warren Lyon, Magellan Advisors, shared that he did not have any major updates at this time but provided a high level overview of project progress. Board members discussed project progress with Mr. Lyon and Mr. Lage. Chris Wendland, Board Attorney, shared that he has continued to work on an incentive pay plan. Maggie Burger, Speer Financial, shared that in early November there will be conversations with larger lenders outside the regional area, from the east coast that are interested in placing additional funds. She added that they will follow up with the General Manger 10-14 days prior to the next draw before the funds would come. Page 3 Kelley Felchle, Board Secretary, shared that she continues to work with Eric and PDCM on an employee benefits package and handbook. She has been sitting in on interviews and working through records requests. 12. Closed session pursuant to Iowa Code Section 21.5(1) to discuss records which are authorized by law to be kept confidential. Moved by Kurtenbach seconded by Wienands. Roll call-vote Ayes: Four. Motion carried. Moved by Kurtenbach seconded by Young to adjourn from the closed session at 5:12 p.m. Roll call-vote Ayes: Four. Motion carried. 14. Adjourn. With no further business before the board, it was moved by Kurtenbach seconded by Young that the meeting be adjourned at 5:12 p.m. Voice-vote Ayes: Four. Motion carried. Kelley Felchle Board Secretary QUOTEPower & Telephone 200 Keough Drive Piperton, TN 38017 Ack Date Cancel Date Order # 10/30/2023 11/20/2023 7821510-00 PO#Page # REV CABINET /SPLITTER 1 Ship To:City of Waterloo Traffic Operations 408 E. 6th Street non-taxable Waterloo, IA 50703 Contact: Paul Smith 9018663142 paul.smith@ptsupply.com Cust #:263433 Bill To: City of Waterloo Traffic Operations 408 E. 6th Street Waterloo, IA 50703 Currency USD Reference IAN Sales Rep In PWS Instructions Terms FREIGHT PAID AS QUOTED Net 30 Days Ship Point Via Ship Date Power & Tel DM Dist Center WHS ROUTING Requested Ship Date:10/30/2023 Freight In / Out N / N Page 1 of 1 This sale is subject to Seller's full Terms and Conditions of Sale available at https://www.ptsupply.com/terms-and-conditions. Seller will not be bound by any different or additional terms or conditions in Buyer's purchase order or otherwise communicated by Buyer unless such terms are expressly and specifically agreed to by Seller in writing. No conduct on the part of Seller including, but not limited to, (i) acceptance of a purchase order without expressly rejecting any Buyer terms or conditions reflected therein; (ii) or delivery of goods; or (iii) acceptance of payment, will constitute acceptance by Seller of such different or additional terms or conditions. Notes Ln #Product and Description Quantity Ordered Qty U/M Unit Price Price U/M Net Amount 2 FD3AE288J00JBBP2 CABINET 288 FBR DIST 24IN/OUT ** THIS ITEM IS NON-CANCELABLE, NON-RETURNABLE ** 1.00 EA 3,776.75 EA 3,776.75 3 FD3AG432J00JBBP4 CABINET 432/48F SC/APC DIELTC CBL 100' FDH3000 ** THIS ITEM IS NON-CANCELABLE, NON-RETURNABLE ** 1.00 EA 4,625.00 EA 4,625.00 4 FPSMPP1SJJ SPLITTER 1X64 SCAPC PLUG N PLAY ** LEAD TIME: APPROX 3 WEEKS ARO ( SUBJECT TO CHANGE ) - FREIGHT PAID AS QUOTED SHIPPING COMPLETE TO ONE LOCATION ** PRICING VALID 30 DAYS ** UNABLE TO CANCEL/ RETURN ARO ** THIS ITEM IS NON-CANCELABLE, NON-RETURNABLE ** 7.00 EA 1,682.08 EA 11,774.56 3 Lines Total Total Order Quantity 9.00 Subtotal 20,176.31 Taxes 0.00 Total 20,176.31 TERMS AND CONDITIONS OF SALE EXCLUSIVE TERMS: ACCEPTANCE OF BIDS, QUOTES, OFFERS, PURCHASE ORDERS, COST ESTIMATES, AND COUNTEROFFERS FOR PRODUCTS, SERVICES, OR MATERIAL (“PRODUCTS”) IS CONDITIONAL ON THE PERSON, FIRM, OR COMPANY ORDERING PRODUCTS’ (“BUYER”) ASSENT TO THESE TERMS AND CONDITIONS OF SALE (“TERMS”). Seller will not be bound by any different or additional terms or conditions proposed or submitted by Buyer, regardless of form, unless expressly and specifically agreed to by Seller in writing. No conduct on the part of Seller, including but not limited to, (i) acceptance of a purchase order without expressly rejecting any Buyer terms or conditions reflected therein; (ii) delivery of Product; or (iii) acceptance of payment for Product, will constitute acceptance by Seller of such different or additional terms or conditions. GENERAL: Purchases are subject to current credit approval and to these Terms. Prices quoted are valid for 14 days or until stated expiration date on quote. Changes in the quantity, payment terms, shipping destination or special handling that differ from quote may result in price adjustments. All Products quoted as stock are subject to changes in availability without notice. Unless otherwise agreed by Seller in writing, payment of invoices is due within 30 days of the invoice date. Seller retains a security interest in all Product until the invoice is paid in full. Good faith dispute of invoice must be made in accordance with current procedures within 15 days of invoice date, regardless of payment terms binding sale of Products. Invoices must be disputed per line charge; all non-disputed charges are due and payable per payment terms. Invoices not paid when due are subject to finance charges computed up to the rate allowed by applicable law on the unpaid balance from due date until paid. Return of Products requires prior written authorization by Seller and not all Products are returnable. Cancellation and/or restocking fees may be imposed by Seller or the Product manufacturer. All shipping and performance dates are approximate. From time to time, Seller may designate certain Products as non-cancelable, non- returnable, non-reschedulable (“NCNR”). All NCNR Products are subject to the following restrictions: (i) purchase orders accepted by Seller for NCNR Products cannot be canceled for any reason; (ii) NCNR Products cannot be returned for any reason other than a manufacturing defect or nonconformity subject to the terms of any manufacturer warranty applicable to the NCNR Products; and (iii) the shipment date requested by Buyer for the NCNR Products cannot be rescheduled by Buyer. All Products are deemed accepted unless Buyer notifies Seller of any nonconformities or defects within 15 days from the date of receipt of the Products. Unless otherwise agreed by Seller in writing, title and risk of loss transfers to Buyer when Products are consigned to the carrier and it is Buyer’s responsibility to file any claim against the carrier. Prices quoted do not reflect applicable taxes, duties, export fees, transportation and freight charges. Seller part numbers are for reference only. Seller reserves the right to ship functionally equivalent Products from any manufacturer without prior notice to the Buyer. FORCE MAJEURE: Seller’s nonperformance shall be excused to the extent that such performance is rendered impossible by (i) strike, fire, flood, governmental acts or orders or restrictions; (ii) epidemic, disease, or pandemic; (iii) failure of Seller’s suppliers; or (iv) any other reason where failure to perform is beyond the reasonable control of and is not caused by Seller’s negligence. Further, Buyer agrees, understands, and accepts that Seller may purchase Products to be sold to Buyer from third- parties. Buyer agrees, understands, and accepts that, if a third-party supplier of Seller increases the cost of any item, Seller may increase the price charged to Buyer for the same or similar item. In the event Seller’s third-party suppliers restrict or delay supply of Products to Seller, Seller may restrict or delay supply to Buyer due to the reduction, delay, or elimination of supply faced by Seller. Buyer agrees that such change in price or in supply that is caused by Seller’s third-party suppliers does not and cannot constitute a breach of contract on the part of Seller and shall not be cause for Buyer to seek or recover any economic damages from Seller. All agreements between Seller and Buyer as to price, quantity, and delivery of Products are expressly conditioned upon Seller’s ability to obtain supply from third-parties at the prices, quantity, and timing of delivery available as of the agreement to supply Buyer. Any material changes in price, quantity, or timing of supply may be passed on to Buyer by Seller. GOVERNING LAW AND DISPUTE RESOLUTION: All sales are governed by, and the rights and obligations of the parties shall be construed and enforced in accordance with, the laws of State of Tennessee. Any dispute, controversy or claim shall be solely and finally settled by arbitration conducted in Memphis, Tennessee in accordance with the Commercial Arbitration rules of the American Arbitration Association then in force. The parties shall abide by all awards rendered in arbitration proceedings, and all such awards may be enforced and executed upon by any court having jurisdiction over the party against whom enforcement of such award is sought. SEVERABILITY. If any part or provision of these Terms is determined to be invalid, or unenforceable, this shall not affect the validity or enforceability of the remaining provisions of these Terms, which shall remain in effect. WARRANTY DISCLAIMER: SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ON PRODUCTS SOLD BY SELLER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER BY SELLER IN NO WAY AFFECTS THE TERMS OF ANY WARRANTY PROVIDED BY THE MANUFACTURER OF THE PRODUCTS OR THE PROVIDER OF SERVICES SOLD BY SELLER. LIMITATION OF LIABILITY AND REMEDY: Failure to give Seller written notice of any claim related to the Products within 30 days after Buyer’s receipt of the products, services, or material shall constitute a waiver by Buyer of all such claims, including claims for damaged or defective goods, shortage, negligence or any other cause whatsoever. SELLER’S LIABILITY ARISING OUT OF OR RELATED TO THE SALE OF THE PRODUCTS, WHETHER IN CONTRACT, TORT, UNDER ANY WARRANTY, NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF THE PURCHASE PRICE PAID BY BUYER TO SELLER, OR IN SELLER’S SOLE DISCRETION, THE REPAIR OR REPLACEMENT OF THE PRODUCTS AT ISSUE. UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS. THE PRICE STATED FOR THE PRODUCTS IS IN CONSIDERATION FOR LIMITING SELLER’S LIABILITY AS PROVIDED HEREIN. FURTHER, WITHOUT LIMITING THE FOREGOING AND EXPRESSLY SUBJECT TO IT, SELLER SHALL HAVE NO LIABILITY FOR COVERAGE IN THE EVENT SELLER IS UNABLE TO SUPPLY BUYER AT THE PRICE(S) AGREED UPON FOR PRODUCTS, FOR A SHORT SUPPLY IN PRODUCTS, A FAILURE TO SUPPLY PRODUCTS OR A DELAY IN SUPPLYING PRODUCTS, IF SUCH CAUSE IS CAUSED BY SELLER’S THIRD-PARTY SUPPLIERS INCLUDING, BUT NOT LIMITED TO, A PRICE INCREASE CHARGED TO SELLER, A CHANGE, REDUCTION, OR ELIMINATION IN SUPPLY OR A CHANGE IN THE TIMING OF SUPPLY. No action, regardless of form, arising out of the transactions under these Terms and Conditions of Sale may be brought by Buyer more than one (1) year after the cause of action has accrued. Seller neither assumes nor authorizes any other person to assume for it any greater liability in connection with any sales of Products. v.1-2023 1 WATERLOO FIBER INCENTIVE COMPENSATION PLAN The Municipal Telecommunications Utility of the City of Waterloo, Iowa, d/b/a Waterloo Fiber (the “Utility”), has established this Incentive Compensation Plan (the “Plan”) for the benefit of those persons identified as “Participants” hereunder. 1. Purpose. The Plan is designed to incentivize and reward employees for their contributions in driving the sale of subscription services and related goods to customers of the Utility and in retaining customers through delivery of responsive and high-quality services. The Plan is intended to motivate Participants to continue investing in the current and future success of the Utility. 2. Participants. Participation in the Plan shall include full-time and part-time employees of the Utility (“Participants”). A Participant must be employed by the Utility for more than six (6) consecutive months of the Plan year to be eligible to receive an Incentive payment with respect to that year. 3. Incentive Payment. Each calendar year during the term of a Participant’s employment, the Participant shall be entitled to receive an incentive payment (the “Incentive”) determined as such Participant’s pro rata share of an incentive pool (the “Pool”). One Pool will be maintained for the General Manager and the Sales Manager (the “Key Employee Pool”), and one Pool will be maintained for other Participants (the “General Employee Pool”). A Pool for a given Plan year will be funded as a percentage of the revenues actually collected by the Utility in such year with respect to any and all customer subscriptions, fees and other charges paid by customers, including fees and charges for equipment sold to or rented by customers and repairs charged to customers, but excluding all other sources of income, revenues or funding derived from sources other than customers. Each Plan year, the Utility board will determine the percentage of eligible revenues for Plan funding purposes and the goals, such as new subscriber uptake or existing subscriber retention, that must be met to achieve different levels of Incentive payment for that Plan year. For clarity, a Pool shall be established for each calendar year, and an Incentive shall be paid to each Participant with respect to such year. A. Key Employee Pool. Participants will share equally in any Incentives payable from the Key Employee Pool. For purpose of illustration, if $33,795 is the funding available in the Pool for a 40% goal that achieves 90% results (but does not reach a higher level of results, such as 100%, that would trigger a greater level of funding), then the Incentive payable to a given Participant for that plan year is determined by dividing $33,795 by the number of Participants in the Pool. B. General Employee Pool. A given Participant’s pro rata share for a given Plan year shall be determined by dividing the total salary paid to such Participant during that year by the total salary paid to all Participants in the General Employee Pool during the same year, and then multiplying the resulting number, rounded to the nearest hundredth, by the total funds available in the Pool for that year that corresponds to the highest level of results obtained relative to the goal for that Plan year. For purposes of 2 this paragraph, “total salary” does not include Incentive payments or other bonuses received by a Participant. For purpose of illustration, if $135,179 is the funding available in the Pool for a 40% goal that achieves 90% results (but does not reach a higher level of results, such as 100%, that would trigger a greater level of funding), then the Incentive payable to a given Participant for that plan year equals $135,179 multiplied by the proportion (rounded to the nearest hundredth) that his or her total salary bears to the total salary of all Participants in the Pool. 4. Payment. Except as set forth in Section 5, the Utility shall pay the Incentive with respect to a given Plan year to each Participant no later than March 31 of the following year. Incentive payments shall be subject to all applicable payroll taxes and withholdings. It is the Participant’s sole responsibility to keep his or her contact information current with the Utility, including information necessary for direct deposit if applicable, including for any period after termination of employment in which an Incentive may be payable. Pursuant to Iowa Code Chapter 97B, Incentive payments are not “wages” for purposes of the Iowa Public Employees’ Retirement System (IPERS). 5. Incentive Forfeiture and Repayment: Notwithstanding anything to the contrary in this Plan, a Participant shall forfeit the Incentive in its entirety if, at any time before the Incentive is paid, (a) the employment of Participant is terminated for cause, as defined in Section 6 below, or (b) such employment is terminated for reasons other than cause but Participant has violated any of the restrictive covenants set forth in Section 7. If, during any post-employment period in which the restrictive covenants set forth in Section 7 are in force, the Participant is found to have engaged in conduct that violates any of such restrictive covenants, then in the sole discretion of the Utility’s governing board (the “Board”) and upon written demand the Participant shall be required to repay to the Utility the most recent Incentive payment received by the Participant. In addition to other methods, repayment may occur by offset against any severance payments owed. 6. Termination for Cause. For purposes of this Plan, the Term “for cause” shall mean, in the Board’s judgment, (a) serious misconduct, including but not limited to conduct, whether personal or professional, that may bring public embarrassment or disgrace to the Utility, (b) conviction of a serious violation of law or regulations, (c) documented unsatisfactory performance consistent with regulations set forth in the employee handbook or other written policy of the Utility, (d) failure to meet goals and performance objectives set by the Board, or (e) material breach of any of the terms of this Plan, particularly including but not limited to any of the restrictive covenants set forth in Section 7. 7. Restrictive Covenants. The restrictions set forth in this Section 7 are intended to govern with respect to a Participant’s eligibility for payments under this Plan. Pursuant to separate agreement or policy, a Participant may also be subject to other restrictions. 7.1. Covenant Against Disclosure of Confidential Information. During the term of Participant’s employment with the Utility, and at any time after the voluntary or involuntary termination of Participant’s employment with the Utility for any reason whatsoever, Participant shall not use for any purpose other than the Utility’s purposes, or disclose to any person or entity except as necessary in the ordinary conduct of Utility’s business and subject to the recipient’s execution of a non-disclosure agreement, any 3 confidential information acquired during the course of his or her employment with the Utility. Participant shall not, directly or indirectly, copy, take, or remove from the Utility’s premises, any of the Utility’s books, records, customer lists, or any other documents or materials. The term “confidential information” as used in this Plan includes, but is not limited to, records, lists, and knowledge of the Utility’s customers, methods of operation, plans, processes, trade secrets, and personnel records or information, as the same may exist from time to time, subject to such disclosures are may be required under the Iowa Open Records Law. 7.2. Non-solicitation of Customers. During the term of Participant’s employment with the Utility and for a period of one (1) year from the voluntary or involuntary termination of Participant’s employment with the Utility for any reason whatsoever, Participant shall not solicit, induce, or attempt to induce any past or current customer of the Utility (a) to cease doing business in whole or in part with or through the Utility; or (b) to do business with any other person, firm, partnership, corporation, or other entity which performs services materially similar to or competitive with those provided by the Utility. 7.3. Non-solicitation of Employees. During the term of Participant’s employment with the Utility and for a period of one (1) year from the voluntary or involuntary termination of Participant’s employment with the Utility for any reason whatsoever, Participant shall not solicit for employment or employ, or solicit for engagement or engage as an independent contractor, any employee of the Utility, nor induce, influence, recruit, encourage or otherwise attempt to cause any Participant of the Utility to terminate his or her employment with the Utility. 8. Relation to Other Agreements. The terms and conditions of this Plan are intended to supplement the terms and conditions of any separate employment or other agreement to which a Participant and the Utility are parties, and the terms and conditions hereof shall not supersede, replace or modify the terms and conditions of any such agreement. 9. No Guarantee of Employment. The adoption and maintenance of the Plan shall not be deemed to be a contract of employment or a contract for the performance of services between the Utility and a Participant. Nothing contained in the Plan shall give a Participant the right to be retained in the employ of the Utility, or to interfere with the right of the Utility to discharge the Participant at any time. 10. Severability. The invalidity or partial invalidity of any portion of this Plan will not affect the validity of any other provision. In the event that any provision of this Plan is held to be invalid, the remaining provisions shall be deemed to be in full force and effect. 11. Captions. Section headings and captions are provided for purposes of reference and convenience only and shall not be relied upon in any way to construe, define, modify, limit, or extend the scope of any provision of the Plan. 12. Governing Law. The Plan and all rights under the Plan shall be governed by and construed according to the internal laws of the State of Iowa. 4 13. Dispute Resolution. 13.1. Informal Negotiation. The parties shall initially attempt to resolve all claims, disputes, or controversies arising under, out of, or in connection with this Plan by conducting good faith negotiations. The dispute shall be considered to have arisen when one party sends to the other party a written notice of dispute. If the parties are unable to resolve the matter following good faith informal negotiations within thirty (30) days, the parties agree to submit the dispute to mediation. 13.2. Mediation. Within fourteen (14) days following the expiration of the time period for informal negotiations in 13.1, the parties shall attempt to agree upon a neutral and qualified mediator to assist the parties in resolving the dispute. If the parties fail to agree upon a mediator, the parties shall request the American Arbitration Association (“AAA”) to appoint a qualified mediator for a mediation to be held in Black Hawk County, Iowa. The period for mediation shall commence upon the appointment of the mediator and shall not exceed sixty (60) calendar days, unless such time period is extended by mutual agreement of the parties. The mediator’s fees and AAA fees shall be shared equally by the parties, but otherwise the parties will bear their own costs for mediation. If the parties are unable to resolve the matter through informal negotiations or mediation, the parties agree to submit such dispute to arbitration, which the parties agree shall be the exclusive means for resolving disputes which the parties cannot otherwise resolve as described above. 13.3. Arbitration. Subject to prior compliance with the requirements of Sections 13.1 and 13.2, any dispute may be resolved by arbitration conducted pursuant to Chapter 679A of the Code of Iowa. The parties shall attempt to agree in writing upon a neutral and qualified arbitrator within fourteen (14) days following the delivery of written notice by either party to the other party setting out the dispute in general terms and requesting that the dispute be resolved by arbitration. If the parties cannot agree upon a single arbitrator, each party shall appoint its own arbitrator, and the arbitrators so appointed shall themselves appoint at least one additional arbitrator to ensure that there are an odd number of arbitrators. The decision of the arbitrator, or, in the case of more than one arbitrator, the simple majority decision of such panel of arbitrators, shall determine all issues in dispute between the parties. Said decision shall be final and binding and shall not be subject to appeal on a question of fact, law, or mixed fact and law, except as permitted under Chapter 679A. Arbitration shall be conducted in Waterloo, Iowa. Fees of the arbitrator(s) shall be shared equally by the parties, but otherwise each party will bear its own arbitration costs, including but not limited to attorney’s fees and expenses. 13.4. Discovery in Arbitration. Consistent with the expedited nature of arbitration, each party will, upon written request of the other party, promptly provide the other with copies of documents legally relevant to the issues raised by any claim or counterclaim. Any dispute regarding discovery or the relevance or scope thereof shall be 5 determined by the arbitrator(s), which determination shall be conclusive. All discovery shall be completed within sixty (60) days following appointment of the arbitrator(s). 13.5. Remedies: The arbitrator(s) may grant any relief available at law or in equity, including but not limited to equitable remedies of specific performance and injunction. Because the Utility will be irreparably damaged if the restrictive covenants set forth in Section 7 are not specifically enforced, it shall be entitled to an injunction restraining any violation of the said provisions by the Participant, or to any other appropriate decree of specific performance, in addition to any other remedies allowed by applicable law. The Participant hereby waives any requirement that the Utility post bond or show the likelihood of damages as a condition to issuance of a writ of injunction. 13.6. Attorney Fees. In the event of any mediation or arbitration to interpret, settle or enforce any of the provisions of this Plan, each party shall bear its own attorney’s fees and costs, except that the Participant shall bear the reasonable attorney’s fees and expenses incurred by the Utility in any dispute where the Participant is found to have violated any of the restrictive covenants set forth in Section 7. 14. Modification. The Utility reserves the right to modify the terms and conditions of this Plan at any time. Adopted ________________