HomeMy WebLinkAbout07.24.2024 Telecom Board Agenda - Special Session
BOARD
MEMBERS
Andrew
Van Fleet
Board Chair
Theodore
Batemon
Ritch
Kurtenbach
Mike
Young
Amy
Wienands
City Council
Liaison:
Rob
Nichols
July 24, 2024
Waterloo City Clerk’s Office
2:00 p.m.
1. Roll call.
2. Approval of the agenda, as presented.
3. Approval of minutes of June 20, 2024, regular session, and June 25, 2024, Special
Session, as presented.
4. Motion approving a Right-of-Way Agreement with the City of Waterloo and
authorizing the General Manager of Telecommunications to execute said document.
5. Motion approving an Independent Contractor Services Agreement with Kielkopf
Advisory Services, LLC and authorizing the General Manager of Telecommunications to
execute said document.
6. Motion creating a bookkeeper position within Waterloo Fiber.
7. Motion approving Change Order No. 2024-0013, for an increase of $16,350.75, in
conjunction with the FY2023 Construction of a Fiber-to-the-Premise Feeder/Distribution
and Backbone Network Project, Contract No. 1088.
8. General update from the General Manager of Telecommunications and consultants.
9. Adjourn.
Kelley Felchle
Board Secretary
WATERLOO
Telecommunications Utility Board of Trustees
TELECOMMUNICATIONS UTILITY
BOARD OF TRUSTEES
City Council Chambers
June 20, 2024
4:00 p.m.
1. Members present: Van Fleet, Batemon, Kurtenbach, Young, and Wienands.
2. Moved by Young seconded by Kurtenbach that the agenda as presented, be
approved. Voice vote-Ayes: Five. Motion carried.
3. Moved by Kurtenbach seconded by Young that the minutes of May 15, 2024, regular
session, as presented, be approved. Voice vote-Ayes: Five. Motion carried.
4. Moved by Young seconded by Van Fleet to adopt a resolution approving Fiber Project
Reimbursement Agreement by and between the City of Waterloo and the Waterloo
Municipal Communications Utility and authorizing the Mayor and City Clerk to execute
said document.
Mr. Van Fleet commented that the wording pertaining to proportionate share seems to
be arbitrary and suggested adding an exhibit to show percentages for reference. He
further suggested adding additional verbiage that shores up any imbalance between the
city’s portion and the utility’s portion at the end of the construction phase.
Steve Nadel, Ahlers and Cooney, provided background on why the document was
written as it was and questioned if the city had already approved the agreement.
Kelley Felchle, Board Secretary, confirmed that the city council has already approved
the agreement.
Steve Nadel suggested the item be tabled until the next meeting to allow him to draft a
supplement so the city wouldn’t have to undo what it has done.
Discussion continued between board members and Steve Nadel.
Moved by Van Fleet seconded by Batemon to table the item until the July 17 meeting.
Voice vote-Ayes: Five. Motion carried.
5. Moved by Young seconded by Wienands to approve interest payment to Community
Bank and Trust for a working capital loan in the amount of $27,908.33. Voice vote-Ayes:
Five. Motion carried.
Eric Lage, General Manager, provided an overview of the item. He commented that we
began drawing on this in September of 2023 at an interest rate of 6 percent and noted
that this is sitting in our account at LSB at 5 percent interest, so our net on this i s one
percent. As of today, we have accrued about $24,000.00 worth of interest in that
account with a net of about $3,700.00.
6. Moved by Van Fleet seconded by Young to approve a reimbursement payment to City
of Waterloo for services, in the amount of $280,968.22.
Eric Lage, General Manager, reviewed the item and explained that there is another
invoice just under $900,000.00 covering from the start of the utility through April 1 that
needs to be added. He commented that he needs to verify the reimbursement deadline
and shared that it may be that we need to hold a special session next week to approve
the item.
Moved by Van Fleet seconded by Young to table the item until the next meeting or a
special session. Voice vote-Ayes: Five. Motion carried.
7. Moved by Young seconded by Batemon to receive and file a notice of conclusion of
employment for Tony Stabell and a severance payment of $2,800.00. Voice vote-Ayes:
Four. Nays: One (Kurtenbach). Motion carried.
Eric Lage, General Manager, reviewed the item and explained they are still working on
language in the Employee Handbook that will limit the vacation entitlement if your
employment terminates in the first year.
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8. Moved by Van Fleet seconded by Wienands to approve a revised severance payment to
Julie Eastman for an additional $94.13. Voice vote-Ayes: Four. Nays: One (Kurtenbach)
Motion carried.
Eric Lage, General Manager, explained the reason for the additional payout.
9. Moved by Kurtenbach seconded by Young to approve purchase of custom crystal cap
markers from ACP International, in the amount of $18,140.00. Voice vote-Ayes: Five.
Motion carried.
Eric Lage, General Manager, explained that this replaces the current fiber markers that
stick out of the ground near the vaults with a medallion that will be adhered to the lid of
the vault, resulting in a cleaner look while still identifying our vaults.
10. Moved by Young seconded by Batemon to approve Change Order No. 2024-0014, for
an increase of $16,350.75, in conjunction with the FY2023 Construction of a Fiber-to-
the-Premise Feeder/Distribution and Backbone Network Project, Contract No. 1088.
Voice vote-Ayes: Five. Motion carried.
Eric Lage, General Manager, shared that the splice enclosure that we use has gone into
back order for over two months and this will allow us to maintain forward progress with a
different splice enclosure that is in stock.
Mike Regan, Entrust, reported that ITG continues to make good progress and shared
that they are now more than 50 percent through the first phase. Locates are keeping up
with drilling activities, and August is the target for bidding out the next shelter.
Eric Lage provided an update sharing that they are looking at going to South Front
Networks that will get us a second physical connection to CFU but also to other
providers. Work continues on payroll and financial software, and Camvio was on site two
weeks ago to provide training.
Mr. Kurtenbach questioned if we are moving forward with hiring field staff.
Eric Lage explained that at this time it makes sense in the immediate future to continue
with ITG’s techs for support. A maintenance contract with ITG is being explored to
assist with any fiber cuts, possible vault damage, etc.
11. Moved by Kurtenbach seconded by Young to adjourn to a closed session at 5:05 p.m.
pursuant to Iowa Code Section 388.9(1) to discuss marketing and pricing strategies or
proprietary information if its competitive position would be harmed by public disclosure
not required of potential or actual competitors, and if no public purpose would b e served
by such disclosure. Roll Call vote-Ayes: Five. Motion carried.
Moved by Kurtenbach seconded by Batemon to adjourn from a closed session at 6:05
p.m. Voice vote-Ayes: Five. Motion carried.
12. Adjourn.
With no further business before the board, it was moved by Kurtenbach seconded by
Wienands that the meeting be adjourned at 6:05 p.m. Voice vote-Ayes: Four. Motion
carried.
Kelley Felchle
Board Secretary
TELECOMMUNICATIONS UTILITY
BOARD OF TRUSTEES
625 Glenwood Street
June 25, 2024
11:00 a.m.
1. Members present: Van Fleet, Batemon and Kurtenbach. Mr. Young joined the
meeting at 11:04 a.m. Ms. Wienands was absent.
2. Moved by Kurtenbach seconded by Batemon that the agenda as presented, be
approved. Voice vote-Ayes: Three Motion carried.
3. Moved by Kurtenbach seconded by Batemon, to approve payment to the City of
Waterloo for reimbursement for start-up costs, Waterloo Fiber employee costs
including salaries, life and disability, benefit reimbursement, and health insurance, in
the amount of $892,947.50. Voice vote-Ayes: Four. Motion carried.
Eric Lage, General Manager, provided an overview of the invoices explaining that
the first invoice for $892,947.50 is for costs from the start of the utility of July 2023
through April 1, 2024. The second invoice for $280,968.22, is everything from April
through end of May 2024 including all city staff time.
Mr. Van Fleet questioned how the expenses align with our budgeted expenses.
Eric Lage commented that he roughly calculated it out and we are pretty well in line.
Mr. Van Fleet and Eric Lage discussed the invoice breakdown. It was noted that the
City of Waterloo has very generously offered to accept our reimbursement of costs
with no interest.
Mr. Kurtenbach questioned the schedule for future billing from the city.
Eric Lage explained that as of June 1, the utility is paying its own bills, so we should
not expect any reimbursement requirements except for the G.O. Bond. He shared
that Maggie Burger and Steve Nadel have reviewed these numbers.
4. Moved by Kurtenbach seconded by Young to approve payment to the City of
Waterloo for start-up costs, city staff time, and Waterloo Fiber employee costs
including regular salaries, overtime, life and disability, retirement pay, benefits
reimbursement, and health insurance, in the amount of $280,968.22. Voice vote-
Ayes: Four. Motion carried.
Mr. Kurtenbach questioned if we would receive invoices on a monthly basis.
Eric Lage explained that future invoices would only be rent, vehicle maintenance and city
staff time.
Kelley Felchle, Board Secretary, explained that it would likely not be a monthly invoice for
the salaries, it just needs to be reimbursed at some point in the year.
5. Adjourn.
With no further business before the board, it was moved by Kurtenbach seconded by
Young that the meeting be adjourned at 11:15 a.m. Voice vote-Ayes: Four. Motion carried.
Kelley Felchle
Board Secretary
RIGHT-OF-WAY LICENSE AGREEMENT
SECTION 1. DEFINITIONS
a. “City” shall mean the City of Waterloo, Iowa and, where appropriate, shall include its
officers, employees and agents.
b. “Licensee” shall mean Waterloo Fiber or any of its designated subsidiaries.
c. “Network Segment” shall mean the communications system laid or to be laid,
constructed, installed, repaired, maintained, and operated by Licensee within the corporate limits
of the City of Waterloo as contemplated by this Agreement and shall include all equipment owned,
operated, leased or subleased in connection with the operation of the Network Segment, including
but not be limited to poles, pedestals, wires, pipes, cables, underground conduits, ducts, manholes,
vaults, fiber optic cables, and other structures, facilities or appurtenances. As of the date of this
Agreement, the initial Network Segment route is generally depicted on Exhibit “A” attached
hereto, and the parties agree that, for purposes of this Agreement, the initial Network Segment
route consists of approximately 2,346,400 linear feet.
d. “Public Improvements” shall mean any improvements as defined in Code of Iowa
Section 26.2, including but not limited to paving, sidewalks, grass, vegetation, trees, street lights,
traffic signals, water mains, sewers, electric transmission lines and equipment related thereto, and
in addition public utilities, on Public Property.
e. “Public Property” shall mean City-owned or controlled public rights-of-way,
easements, bridges, squares or commons.
SECTION 2. BASIC GRANT; RESTRICTED USE
a. Licensee is hereby granted a license to construct, maintain, inspect, protect, repair,
replace and retain a Network Segment in, under, upon, along and across the Public Property shown
and identified in Exhibit “A” hereto, subject to the regulatory powers of the City and subject to the
conditions hereinafter set forth. This Agreement creates no rights to expand the Network Segment
or to create or install a new network segment, except on the terms provided in this Agreement.
SECTION 3. TERM OF AGREEMENT
a. This Agreement and the rights conferred hereunder shall commence on __________,
______ (the “Effective Date”), and shall continue for such period of time as Licensee, or its
successors and assigns, operate the Network Segment.
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SECTION 4. FEES REQUIRED
a. Licensee shall pay an administrative fee (the “Administrative Fee”) in the amount of
$0.10 for each linear foot of Network Segment facilities that Licensee places or causes to be placed
in, over, under or across Public Property, subject to a minimum fee of $600.00. Licensee agrees
that the Administrative Fee is the City’s estimate of the administrative burdens imposed on the
City in connection with Licensee’s application and its occupancy of Public Property, and Licensee
agrees that it will not take any action, nor voluntarily provide support to any third-party action, to
challenge the validity or reasonableness of such fee under applicable law. The Administrative Fee
shall be payable upon execution and delivery of this Agreement, or any future amendment or
addendum hereto. In addition to the Administrative Fee, Licensee shall pay permit fees and such
other regulatory fees as may be required by applicable ordinance. An Administrative Fee
calculated in the manner described above shall be payable in connection with each separate
application filed by Licensee to extend or expand the Network Segment at the time such
application is filed.
b. In each successive year during the term of this Agreement, Licensee shall pay an annual
management fee (the “Management Fee”) equal to $.015 for each linear foot of Network Segment
facilities that Licensee places or causes to be placed in, over, under or across Public Property,
subject to a minimum fee of $50.00. Licensee agrees that the Management Fee is the City’s
estimate of the right-of-way management costs imposed on the City in connection with Licensee’s
occupancy of, and activities in and upon, Public Property, and Licensee agrees that it will not take
any action, nor voluntarily provide support to any third-party action, to challenge the validity or
reasonableness of such fee under applicable law. City retains the right to modify or adjust the
Management Fee linear-foot charge at any time to ensure that the City is properly reimbursed for
its right-of-way management costs. The Management Fee shall be payable annually, based on the
linear footage of the Network Segment facilities existing at December 31 of a given year, no later
than January 15 of the following year. In addition to the Management Fee, Licensee, or its
contractors or agents, shall pay excavation permit fees and such other regulatory fees as may be
required by applicable ordinance.
SECTION 5. ADDITIONAL LICENSING PROCESS
a. Before commencing any extension or expansion of its Network Segment, or any major
repair work, or the installation of any new Network Segment in the City, the Licensee shall file
with the City Engineer’s Office a written statement (a “License Request”) verifying the Public
Property under which or upon which it proposes to extend, expand, install or repair its Network
Segment. Work other than repair or replacement of existing Network Segment facilities shall
require the further grant of a license for use of Public Property. The License Request shall be
accompanied by a map, plan or specifications showing the proposed location of the Network
Segment components with reference to streets and alleys and the location of other utilities, the size
and dimensions of all facilities, and the distance above or beneath the surface of the ground it is
proposed to repair or to lay the same.
b. If the proposed locations of any Network Segment facilities shall interfere with the
reasonable and proper use, construction, reconstruction and maintenance of any Public
Improvements or any existing public utility system component, or other structure upon or under
Public Property, the City Engineer shall within 30 days after the filing of such plan, map or
specifications, note the changes necessary to eliminate all interference with a Public Improvement
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or existing public utility system facility and refer the same back to the Licensee for amendment.
Such map, plan or specifications, when properly changed and corrected, shall be filed in the City
Engineer’s Office, and after the approval of the same by the City Engineer and the posting of a
bond required under applicable law or ordinance regulating work in or upon Public Property, if
such is not waived by the City, the License Request shall be approved so that the Licensee may
proceed in accordance with the approved maps, plans or specifications.
c. Approval of a License Request does not constitute any statement, representation, or
assurance by City as to the presence or location of any privately maintained facilities, equipment
or infrastructure. No such excavation, construction or erection shall be commenced before
approval of the License Request, unless it is an emergency as determined by Licensee in good
faith, and all work shall be in accordance with the approved maps, plans or specifications. If
Licensee extends or expands its Network Segment without following the License Request process
prescribed by this Section, the Administrative Fee and the fee minimum shall double, and Licensee
shall be liable for any Management Fees that it failed to timely pay, plus interest thereon at 12%
per annum, compounded monthly.
d. Each expansion or extension of the Network Segment for which a License Request is
approved, and the plans, maps, and specifications therefore, shall be deemed incorporated into this
Agreement by reference as an addendum hereto. All of Licensee’s activities in relation to said
expanded or extended Network Segment shall be subject to the terms of this Agreement.
SECTION 6. CONSTRUCTION AND REPAIR OF FACILITIES
a. In the process of location, construction, reconstruction, replacement, or repair of any
Network Segment system component, the excavation or obstruction made or placed in Public
Property at any time or for any purpose by the Licensee shall, to protect the public and to assure
the safe and efficient movement of traffic, be properly barricaded to comply, at a minimum, with
requirements set forth in the latest edition of the Manual on Uniform Traffic Control Devices
(MUTCD). The Licensee shall not unnecessarily obstruct the use of streets, avenues, alleys or
public places, shall limit obstructions to the minimum area and time necessary, shall provide the
City Engineer with no less than 24-hour notice prior to the actual commencement of the work
and shall comply with all provisions, requirements, and regulations in accordance with City
ordinances and this Agreement in performing such work. The Licensee shall conduct its work
hereunder in such manner as to cause as little interference as possible with pedestrian and
vehicular traffic, and shall abide by scheduling directions, if any, given by the City Engineer. In
emergencies which require immediate excavation the Licensee may proceed with the work
without first applying for an excavation permit or other applicable permits, provided, however,
that the Licensee shall apply for and obtain the permit(s) as soon as possible after commencing
such emergency work.
b. All pavement taken up or damaged, and any other disturbed areas, shall be properly
and speedily replaced in accordance with the City’s regulations. As a condition to use of Public
Property, the Licensee shall at its own expense repair any private property, utility system
component, public improvement or Public Property damaged by such location, construction,
reconstruction, replacement or repair work, in a manner reasonably acceptable to City. If, after
excavations have been made, the Licensee fails to repair or arrange with the City for the proper
repair and restoration of any Public Property to a condition as good as the condition of such
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property prior to the disturbance of same, and after seven (7) days notice in writing to do so is
given to its designated representative, the City may make such repairs at the expense of the
Licensee. The Licensee shall pay to the City its costs and charges for such work, plus interest at
12% per annum, compounded monthly, within thirty (30) days after receipt of the City’s billing.
SECTION 7. WORK BY OTHERS, ALTERATION TO CONFORM WITH
PUBLIC IMPROVEMENTS
a. The City reserves the right to lay, and permit to be laid, wires, pipes, cables, conduits,
ducts, manholes and other appurtenances, and to do, or permit to be done, any underground and
overhead installation or improvement that may be deemed necessary or proper by the City in,
across, along, over or under any Public Property occupied by the Licensee and to change any curb
or sidewalk or the grade of any street. In permitting others to do such work the City shall not be
liable to the Licensee for any damages arising out of the performance of such work by other parties,
provided City exercised reasonable care in performance of such work undertaken by the City.
Nothing in this Agreement shall be construed as to relieve any other person or company from
liability for damage to the Licensee’s facilities.
SECTION 8. LICENSEE CONTRACTORS
a. The requirements of this Agreement shall apply to all persons, firms or corporations
performing work for the Licensee under a contract, subcontract or other type of work order.
SECTION 9. CONDITIONS OF OCCUPANCY; RELOCATION
a. Components of the Network Segment laid or constructed by the Licensee within the
City shall conform to established grades of streets, alleys, and sidewalks, and be so located as to
cause minimum interference with other public utilities located in or upon P ublic Property, and to
cause minimum interference with the rights or reasonable convenience of property owners who
adjoin Public Property. All conduit installed by Licensee shall terminate in a shared box or shall
otherwise be accessible to others on terms that the City Engineer determines to be fair and
reasonable after consideration of generally prevailing industry practices; provided, however, that
Licensee may refuse joint use of conduit and pedestals based on technical considerations, such as
limited physical space in the conduit, substantial risk of damage to Licensee’s fiber, or risk of
interruption to critical services. Because available space in the right-of-way is limited, Licensee
is encouraged to share conduit and other facilities with existing right-of-way occupants, to the
extent reasonably possible. Because right-of-way space is limited, Licensee agrees to cooperate
in good faith and on reasonable terms with future requests from others who desire to collocate in
or jointly use any separate conduit-type facilities of Licensee in the right-of-way. Licensee may
charge reasonable fees to others for future joint use of any conduit, pedestals or other infra -
structure installed by Licensee.
b. Licensee agrees to allow City to install its own pipes, cables, conduits, ducts, and/or
other appurtenances within Licensee’s excavation, provided that such installation is performed at
City’s sole expense and does not result in any material increase to the Licensee’s costs. City shall
inform Licensee where it desires to collocate or install conduit, and Licensee will ask its
installation contractor to provide a reasonable quote for the cost thereof. The collocation or
installation of conduit or cables within Licensee’s excavation shall be subject to a separate
agreement between City and the contractor.
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c. The Licensee shall, upon reasonable notice and at its sole cost and expense, remove,
locate and relocate its Network Segment facilities in, on, over or under Public Property in such
manner as the City may at any time reasonably require for the purpose of facilitating the
construction, reconstruction, maintenance, repair or change in grade of any public improvement
on, in or about any such Public Property, for the purpose of promoting the efficient operation of
any such improvement, or for the purposes of facilitating the vacation and/or redevelopment of
public right-of-way by the City. In the event the Licensee fails to act and proceed with diligence
to begin and/or complete said relocation or removal within a reasonably allocated time, or if City
in its discretion chooses to allow Licensee to post a performance bond and Licensee fails within
a reasonable time set by the City to furnish a satisfactory performance bond providing for
completion of the required relocation by a designated date, the City at its option may cause the
Licensee facilities to be relocated or removed and then demand reimbursement of costs and
expenses from the Licensee, including interest at the rate of 12% per annum, compounded
monthly, without liability to the City for any loss or damage caused by such relocation or
removal. In addition to the foregoing remedies, City at its option may impose a fine of
$1,000.00 per day or portion thereof starting fourteen (14) days following the City’s request and
Licensee’s failure to diligently act or, as appropriate in the circumstances, starting seven (7) days
following Licensee’s failure to complete the required relocation by the date designated in
connection with the performance bond. Sums payable under this paragraph are due and payable
by the Licensee to the City within thirty (30) days after receipt of the City’s billing.
d. The Licensee shall not place its Network Segment facilities in the Public Property
where the same will interfere with the normal use or maintenance of any Public Improvement,
including but not limited to streets, alleys, traffic control devices, sanitary sewers, storm sewers,
storm drains, or any public utility facility.
e. Upon request, the Licensee agrees to assist in locating underground facilities which are
part of its Network Segment. Such assistance will be provided in a timely manner, but not more
than forty-eight (48) hours after the time of request. As a condition of this Agreement, the
Licensee shall enroll as a member of the “Iowa One-Call System” and shall respond to all requests
and notifications placed to the toll free “One-Call” number.
f. Installation, repair, or replacement work completed by the Licensee that requires
excavation of Public Property or public right-of-way shall require restoration and replacement of
(a) any improvements that were removed, destroyed or damaged by the Licensee’s work to a
condition at least equal to the condition of such premises before the Licensee’s work was
undertaken, and (b) surface vegetation with sod in conformance with City ordinances and in
accordance with standard local practices for placing sod. All work of restoration and replacement
shall be subject to inspection and approval by the City Engineer or his designee.
SECTION 10. POWERS OF CITY
a. Nothing in this Agreement shall be construed to abridge the right or power of the City
to make further regulations relative to the use of the streets, alleys and public grounds by anyone
using the same for the erection and maintenance of utility systems.
SECTION 11. PLANS AND COORDINATION
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a. Upon completion of the work the Licensee shall promptly furnish to the City copies of
“as-built” plans related to its Network Segment facilities located on Public Property. The
Licensee shall keep complete and accurate maps and records on the locations and operations of
its facilities in connection with this Agreement.
SECTION 12. VIOLATIONS OF AGREEMENT
a. Upon evidence being received by the City that a violation or breach of this Agreement
or violation of codes or ordinances lawfully regulating the Licensee in the operation of its Network
Segment facilities, or in the use of Public Property therefor, is occurring or has occurred
(hereinafter referred to as a “default”) the City shall cause an investigation to be made. If the City
finds that a default exists or has occurred the City may take appropriate steps to secure compliance
with the terms of this Agreement or the codes or ordinances. During the period in which any
default exists, City shall be entitled to suspend the processing of any request or application by
Licensee to amend the terms of this Agreement, to approve a License Request, or to grant a new
permit, license, franchise, or other approval.
b. The City shall notify the Licensee of the default and the Licensee shall cure such default
within thirty (30) days after receipt of such notice; provided, however, where any such default
(other than a payment default) cannot reasonably be cured within such thirty (30) day period,
Licensee shall so notify the City Engineer, and if Licensee shall proceed promptly to cure the
same and prosecute such cure with due diligence, the time for curing such default shall reasonably
be extended for such period of time as may be necessary to complete such cure, as mutually agreed
upon by the parties.
c. If the Licensee fails to cure a default within the time allowed, the City shall have the
right to (i) seek specific performance; or (ii) remedy the default by doing the act itself, or through
a contractor, and charge the costs of such work to the Licensee; or (iii) seek damages for such
default, plus interest at the rate of twelve percent (12%) per annum, compounded monthly, on any
sum due and owing; or (iv) any combination of (i), (ii) and (iii).
SECTION 13. TRANSFER OF TITLE
a. If Licensee abandons its Network Segment system and facilities for a period of twelve
(12) months or more, then at City’s option City may effectuate a transfer to City of all of
Licensee’s right, title and interest in and to the Network Segment. Abandonment shall be
presumed if Licensee has not filed with the office of the City Engineer a notice of continued use
within thirty (30) days after City’s written request for same. Licensee’s continued use shall be
established upon filing of such notice, without regard to whether Licensee has allowed the
Network Segment or some part thereof to go dark.
b. City shall deliver to Licensee a written notice of City’s intent to effectuate a transfer of
title and permit Licensee a period of thirty (30) days from the date of delivery in which to provide
written notice of non-abandonment, and absent such action by Licensee City may file in the public
land records of Black Hawk County, Iowa, a notice of transfer of title to City. Licensee shall not
be entitled to any compensation from City for a transfer as contemplated by this Section.
SECTION 14. LIABILITY, INDEMNIFICATION AND INSURANCE
a. The Licensee covenants, at its sole cost and expense, to indemnify, defend, and save
the City and its officers, agents and employees, harmless from any and all costs, damages, losses
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and liabilities whatsoever (including but not limited to the reasonable fees and expenses of
attorneys and accountants), of any kind or nature, whether in tort or contract, arising directly or
indirectly from the exercise of the rights granted herein or from the acts or omissions of Licensee,
its employees, contractors and agents, in respect of the Network Segment, any Network Segment
facilities, any work relating thereto, or any access to or use of the Network Segment by third
parties.
b. The Licensee agrees to require contractors and subcontractors engaged in work for the
Licensee within the public rights-of-way or on public property to maintain in effect during the
term of work liability insurance in comprehensive form and in the amounts to be reasonably set by
the City.
c. Licensee agrees to accept the risk of having its communications systems and equipment
upon the public right-of-way, including the possible risk of damage or injury to its system or
equipment, and agrees to release and discharge the City of any liability for damage or injury to
Licensee’s equipment, except to the extent caused by the City’s gross negligence. In no event
shall the City be liable for any consequential damages arising out of any damage or injury to
Licensee’s equipment placed in the right-of-way.
d. The covenants set forth in this Section shall survive the termination or expiration of
this Agreement for any reason.
SECTION 15. SEVERABILITY
a. In the event any provision of this Agreement is held invalid, illegal, or unenforceable,
whether in whole or in part, the offending provision or part thereof shall be deemed severed from
this Agreement and the remaining provisions of this Agreement shall not be affected thereby and
shall continue in full force and effect. If, for any reason, a court finds that any provision of this
Agreement is invalid, illegal, or unenforceable as written, but that by modifying or limiting such
provision it would become valid, legal, and enforceable, then such provision shall be deemed to
be written and shall be construed and enforced as so modified or limited without affecting the
remaining provisions of this Agreement, provided, however, that in such event City shall have the
option, exercisable in its sole discretion, to terminate this Agreement.
SECTION 16. ASSIGNMENT
a. Licensee shall not assign or otherwise transfer this Agreement or any of its rights and
interest to any firm, corporation or individual without the prior written consent of the City, except
that Licensee shall have the right to assign, convey or otherwise transfer its rights, title, interest
and obligations under this Agreement, in whole or in part, to any entity controlled by, controlling
or under common control with Licensee, or any entity into which Licensee may be merged or
consolidated or which purchases all or substantially all of the assets of Licensee, provided that
Licensee shall notify the City in writing of any permitted assignment, conveyance or transfer
within thirty (30) days of its occurrence.
SECTION 17. VACATION OF STREETS AND ALLEY
a. So long as the Licensee exercises the rights granted to it hereunder the City will not,
by ordinance or otherwise, vacate any street, alley or public way in which the Licensee has installed
its facilities without reserving such rights as necessary to allow continued use of such property for
8
the said facilities in accordance with the terms of this Agreement, provided that nothing herein
shall limit the City’s right to require the Licensee to relocate it facilities as provided in Section 10
hereof.
SECTION 18. DELIVERY OF NOTICES
a. Except as may be expressly provided herein, any notices hereunder shall be in writing
and shall be delivered via certified mail and addressed as follows, unless indicated otherwise in
the future:
If to City: City of Waterloo, Iowa
Attn: City Engineer
715 Mulberry Street
Waterloo, IA 50703
With a copy to: City of Waterloo, Iowa
Attn: City Attorney
715 Mulberry Street
Waterloo, IA 50703
If to Licensee: Waterloo Fiber
Attn: General Manager
625 Glenwood Street
Waterloo, IA 50703
Provided, however, that in the case of an emergency, notices may be given verbally to the above
named persons. In such case written confirmation should be provided. Nothing contained herein
shall prevent other forms of notice if actually received by the addressee. Notice shall be deemed
given three (3) days after the date of mailing if done by certified mail, the next business day if sent
by a recognized national overnight carrier or courier, or otherwise on the date actual notice is
received.
SECTION 19. APPLICABLE LAWS
a. This Agreement is subject to all applicable federal, state and local laws, regulations and
orders of governmental agencies as amended, including but not limited to the Communications
Act of 1934 as amended, the Telecommunications Act of 1996 as amended and the rules and
regulations of the FCC. Neither City nor Licensee waives any rights they may have under any
such laws, rules or regulations.
SECTION 20. GOVERNING LAW; LEGAL ACTION
a. This Agreement shall be governed by and construed in accordance with the laws of the
State of Iowa. In any action to interpret, construe or enforce this Agreement, the parties hereby
agree and consent (i) to irrevocably submit to the jurisdiction and venue of the Iowa District Court
for Black Hawk County, over any action or proceeding to enforce or defend any matter arising
from or related to this Agreement; (ii) to irrevocably waive, to the fullest extent a party may
effectively do so, the defense of any inconvenient forum to the maintenance of any such action or
proceeding; and (iii) not to institute any legal action or proceeding against the other p arty or any
of the directors, officers, officials, employees, successors, assigns, agents or property of the other
9
party, concerning any matter arising out of or relating to this Agreement, in any court other than
one specified in this Section. If City prevails in any legal action to collect fees owed by Licensee
under this Agreement, Licensee shall be liable for City’s reasonable attorneys’ fees and expenses.
SECTION 21. GENERAL PROVISIONS
a. This Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof. It may not be modified or amended except by a written instrument signed
by both parties. This Agreement is binding upon the parties and the permitted successors, assigns,
transferees and personal representatives of each of them.
IN WITNESS WHEREOF, the parties have entered into this Right-of-Way License
Agreement by their duly authorized representatives as of the Effective Date.
WATERLOO FIBER CITY OF WATERLOO, IOWA
By: _______________________________ By: _______________________________
__________________, Mayor
Title: General Manager of Telecommunications
WATERLOO TELECOMMUNICATIONS UTILITY,
INDEPENDENT CONTRACTOR SERVICES AGREEMENT
THIS INDEPENDENT CONTRACTOR SERVICE AGREEMENT ("Agreement") is between Waterloo
Telecommunications Utility established under Iowa Code Chapter 388 ("Utility " and "Client") and
Kielkopf Advisory Services, LLC , an Iowa limited liability company (the "Contractor").
1. ENGAGEMENT OF SERVICES. Ut ility may issue Project Assignment(s) in the form attached as
Exhibit A. Subject to the terms of this Agreement , Contractor w ill , to the best of its ability , render the
services set forth in Project Assignment(s) accepted by Contractor (the "Project(s)") by the completion dates
set forth therein . The manner and means by which Contractor chooses to complete the Projects are in
Contractor's sole discretion and control. Contractor agrees to exercise the highest degree of
professionalism , and to utilize its expertise and creative talents in completing such Projects . In completing
the Projects , Contractor agrees to provide its own equipment, tools , and other materials at its own expense ,
unless otherwise set forth in Exhibit A. Utility will make its financial information , facilities and equipment
available to Contractor when necessary . Contractor shall perform the serv ices necessary to complete the
Projects in a timely and professional manner consistent with industry standards , and at a location , place
and time which the Contractor deems appropriate . Contractor may not subcontract or otherwise delegate
its obligations under this Agreement without Utility 's prior written consent. Before any Contractor employee
or consultant performs services in connection with this Agreement, the employee or consultant and
Contractor must have entered into a written agreement expressly for the benefit of Utility concerning
Confidentiality , Trade Secrets , and Assignment of Intellectual Property (attached hereto as Exhibit B),
in corporated by reference .
2. COMPENSATION . Util ity will pay Contractor a fee for services rendered under this Agreement as
set forth in the Project Assignment(s). Contractor will not be reimbursed for any expenses incurred in
connection with the performance of services under this Agreement except as expressly set forth in Exhibit
A provided Contractor submits verification of such expenses as Utility may require. Upon termination of
this Agreement for any reason, Contractor will be pa id fees and expenses on a proportional basis as stated
in the Project Assignment(s) for work which is then in progress , to and including the effective date of such
termination. Unless other terms are set forth in the Project Assignment(s) for work which is in progress ,
Utility will pay the Contractor for serv ices and (i f applicable) will reimburse the Contractor for previously
approved expenses within thirty (30) days of the date of Contractor's invoice.
3. INDEPENDENT CONTRACTOR RELATIONSHIP AND TAX INDEMNIFICATION . Contractor's
relationship with Uti lity will be that of an independent contractor and noth ing in this Agreement should be
construed to create a partnership , joint venture , or employer-employee relationship. Contractor is not the
agent of the Utility and is not authorized to make any representation , contract , or comm itment on behalf of
Utility without pr ior express written consent. Contractor will not be entitled to any of the benefits which the
Utility may make availab le to its employees , such as group in surance , profit sharing or retirement benefits .
Contractor will be solely responsible for all tax returns and payments required to be filed with or made to
any federal , state or local tax authority with respect to Contractor's performance of services and receipt of
fees under this Agreement. The Utility will regularly report amounts paid to Contractor by filing Form 1099-
MISC and/or other appropriate form with the Internal Revenue Service as required by law. Because
Contractor is an independent contractor , the Utility w ill not withhold or make payments for social security;
make unemployment insurance or disability insurance contributions ; or obtain worker's compensation
in surance on Contractor's behalf. Contractor agrees to accept exclusive liability for complying with all
app lic able state and federal laws governing self-employed individuals , including obligations such as
payment of taxes , social security , workers ' compensat ion unemployment insurance, disability and other
contributions based on fees paid to Contractor , its agents or employees under this Agreement. Contractor
hereby agrees to indemnify and defend Utility aga in st any and all such taxes or contributions , including
penalties and interest. Contractor is free to enter any contract to provide services to other Cities , Utilities
and business entities , except any contract wh ich would induce Contractor to violate this Agreement.
SmartSource Consulting , LLC Independent Contractor Services Agreement
4. CONTRACTOR REPRESENTATIONS AND WARRANTIES . Contractor hereby represents and
warrants that (a) the Work Product (as defined in Exhibit B) will be an original work of Contractor and any
third parties will have executed assignment of rights reasonably acceptable to the Utility ; (b) neither the
Work Product nor any element thereof will infringe the Proprietary Rights of any third party ; (c) neither the
Work Product nor any element thereof will be subject to any restrictions or to any mortgages , liens, pledges,
security interests, encumbrances or encroachments ; (d) Contractor will not grant, directly or indirectly , any
rights or interest whatsoever in the Work Product to third parties ; (e) Contractor has full right and power to
enter into and perform this Agreement without the consent of any third party ; (f) Contractor will take all
necessary precautions to prevent injury to any persons (including employees of Utility) or damage to
property (including Utility property) during the term of this Agreement ; (g) should the City or Utility permit
Contractor to use any of its equipment , tools, or facilities during the term of this Agreement, such permission
shall be gratuitous and Contractor shall be respons ible for any injury to any person (including death) or
damage to any property arising out of use of such equipment , tools or facilities , whether or not such claim
is based upon its condition or on the alleged negligence of the Utility in permitting its use ; (h) Contractor is
familiar with and will comply (and ensure compliance) with all applicable laws , including , without limitation,
employment discrimination and harassment , and federal and state laws governing payment of wages; and
(i) Contractor warrants that if any governmental agency determines Contractor to be a common law
employee, Contractor will make no private claim for any benefits or compensation provided to employees
of the City or Utility .
5. INDEMNIFICATION . Contractor will indemnify and hold harmless the Utility, its officers , directors ,
employees , subl icensees, customers and agents from any and all claims , losses , liabilities , damages ,
expenses and costs (including actual attorneys ' fees and court costs) which result from a breach or alleged
breach of any representation or warranty of Contractor (a "Claim ") set forth in Section 4 of this Agreement ,
provided that Utility gives Contractor written notice of any such Claim and Contractor has the right to
participate in the defense of any such Claim at its expense . From the date of written notice from the Utility
to Contractor of any such Claim , the Utility shall have the right to withhold from any payments due
Contractor under this Agreement the amount of any defense costs , plus additional reasonable amounts as
security for Contractor's obligations under this Section 5.
Contractor, at its sole cost and expense , shall maintain appropriate insurance with (a) Commercial General
Liability Broad Form Coverage , including Contractual Liability , Contractor's Protective Liability and Personal
Injury/Property Damage Coverage in a combined single limit of not less than $2 ,000 ,000 , and (b) Business
Automobile Liability Policy with a limit per accident of not less than $1 ,000 ,000 combined single limit for
bodily injury and property damage. A Certificate of Insurance indicating such coverages shall be delivered
to Utility upon request. The Certificate shall indicate that the policy will not be changed or terminated without
at least 10 days ' prior notice to the Utility , upon request shall name Utility as an additional named insured
and shall also indicate that the insurer has waived its subrogation rights against the Utility . If applicable ,
Contractor shall also , at its sole cost and expense , maintain worker' compensation and employer's liability
insurance containing minimum statutory limits and the Employer's Liability portion thereof having a
minimum limit of $1 ,000 ,000 per accident, disease and in the aggregate.
6. TERM; TERMINATION .
6.1 Termination by the City or Utility . The term of this Agreement shall commence upon
execution and remain in effect until terminated by the Utility . The Utility may terminate this Agreement at its
convenience without cause , and without any breach by Contractor , upon 30 days ' prior written notice to
Contractor. The Utility may also terminate this Agreement immediately in its sole discretion upon
Contractor's breach of this Agreement , Exhibit B and/or Section 6.3.
6.2 Termination by Contractor. Contractor may terminate this Agreement at any time that
there is no uncompleted Project Assignment in effect upon 30 days ' prior written notice to the Utility.
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SmartSource Consulting LLC Independent Contractor Services Agreement
6.3 Noninterference with Business. During and for a period of 1 year immediately following
termination of this Agreement by either party , Contractor agrees not to solicit or induce any employee or
independent contractor to terminate , change , or breach an employment , contractual or other relationship
with the Utility.
6.4 Return of Utility Property . Upon termination of the Agreement or earlier as requested by
the Utility , Contractor will deliver to the Utility any and all draw ings , notes , memoranda , specifications ,
devices , formulas , and documents , together with all copies , compilations and summaries thereof, and any
other material containing or disclosing any Work Product , Third Party Information (as defined in Exhibit B)
or Proprietary Information (as defined in Exhibit B) of the Utility . Contractor further agrees that any property
situated on Utility 's premises and owned by the Utility , including disks and other storage media , filing
cabinets or other work areas , is subject to inspection by Utility personnel at any time with or without notice .
7. GENERAL PROVISIONS .
7.1 Governing Law; Public Entity . This Agreement will be governed and construed in
accordance with the laws of the State of Iowa. Contractor hereby expressly consents to the exclusive
personal jurisdiction of the state and federa l courts located in Des Moines , Iowa , for any dispute arising
from or related to this Agreement. The substant ially prevailing party to any dispute under this Agreement
shall be entitled to actual , reasonable attorneys ' fees and costs . Contractor acknowledges that the Utility
is an Iowa Municipal corporation , subject to the public records (Chapter 22) and open meetings laws
(Chapter 21) in the conduct of all of its business .
7.2 Severability . In case any one or more of the provisions contained in this Agreement shall ,
for any reason , be held to be inval id , illegal or unenforceable in any respect , such inva lidity , illegality or
unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be
construed as if such invalid , illegal or unenforceable provision had never been contained herein. If
moreover, any one or more of the provis ions contained in this Agreement shall for any reason be held to
be excessively broad as to duration , act ivity or subject, it shall be construed by limiting and reducing it , so
as to be enforceable to the extent compatible with the appl icable law as it shall then appear.
7.3 Assignment. Th is Agreement may not be assigned by Contractor without the Utility 's
consent , and any such attempted assignment shall be void and of no effect. This Agreement may be
assigned by Utility in its discretion .
7.4 Notices. All notices , requests and other communications under this Agreement must be
in writing , and must be mailed by registered or certified mail , postage prepaid and return receipt requested,
or delivered by hand to the party to whom such not ice is required or permitted to be g iven. If mailed , any
such notice will be considered to have been given 5 business days after it was mailed , as evidenced by the
postmark . If delivered by hand , any such notice will be considered to have been given when rece ived by
the party to whom notice is given , as ev idenced by written and dated receipt of the receiving party. The
mailing address for notice to either party will be the address shown on the signature page of this Agreement.
Either party may change its mailing address by notice as provided by this section.
7 .5 Injunctive Relief . A breach of any of the promises or agreements contained in this
Agreement may result in irreparable and cont inuing damage to Utility for which there may be no adequate
remedy at law , and Utility is therefore entitled to seek injunctive relief as well as such other and further relief
as may be appropriate.
7 .6 Survival . The following provisions shall survive terminat ion of this Agreement: Exhibit B,
Section 4 , Section 5 and Section 6 .3.
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SmartSource Consulting LLC Independent Contractor Services Agreement
7.7 Export. Contractor agrees not to export , directly or indirectly , any U.S. source technical
data acquired from the Utility or any products utilizing such data to countries outside the United States ,
which export may be in violation of the United States export laws or regulations.
7 .8 Waiver . No waiver by the Utility of any breach of this Agreement shall be a waiver of any
preceding or succeeding breach . No waiver by the Utility of any right under this Agreement shall be
construed as a waiver of any other right. Utility shall not be required to give notice to enforce strict
adherence to all terms of th is Agreement.
7 .9 Entire Agreement. This Agreement is the final , complete and exclusive agreement of the
parties with respect to the subject matter hereof and supersedes and merges all prior discussions between
us. No modification of or amendment to this Agreement , nor any waiver of any rights under th is Agreement,
will be effective unless in writing and signed by the party to be charged . The terms of this Agreement will
govern all Project Assignments and services undertaken by Contractor for the Utility . In the event of any
conflict between this Agreement and a Project Assignment , the Project Assignment shall control , but only
with respect to the services set forth herein .
7.10 Counterparts . This Agreement may be executed in counterparts , both of which when so
executed and delivered shall be deemed an original , but such counterparts together shall constitute but one
and the same instrument.
IN WITNESS WHEREOF , each party has caused this Independent Contractor Services Agreement
to be executed by its duly authorized representat ive .
Client
Waterloo Telecommunications Utility
By : ______________ _
(Pr inted Name)
Title:
Dated : _______________ _
4
Contractor
Kielkopf Advisory Services, LLC
By : ___ -'<--1--.-'---++--,,."--+-----
Todd R. Kielkopf
Title: President
606 W Orchard Ave.
Indianola , IA 50125
515-681-1297
Dated: _ __,¼,__-~2--<'-f,__-_'2-~()~2--+3/ ____ _
SmartSource Consulting LLC Independent Contractor Services Agreement
EXHIBIT A
PROJECT ASSIGNMENTS AND SCOPE OF WORK
SERVICES. Contractor shall provide business planning , project management, and operational strategy
support pertaining to the telecommunications utility ("UTILITY"). At a minimum, these services include:
• Advising on financial and accounting matters and processes as requested by the Utility
• Miscellaneous strategy , planning , and launch implementation activities as requested by the Utility.
PAYMENT OF FEES . Fees will be :
$135 per hour unless otherwise negotiated and accepted in writing by both parties
Invoices will be sent digitally (pdf) via email on the first business day of the month for the previous billing
period . Payment is to be remitted within 30 calendar days via ACH (preferred) or paper check mailed to
the address above .
EXPENSES . Company will re imburse Contractor for the following expenses:
• Materials and services purchased on behalf of the Utility at the written request of the Utility .
• Vehicle trips at the current IRS mileage rate , plus any reasonable lodg ing expenses that may be
incurred at the written request of the Utility , and a minimum of 2 hours per trip made in person .
NOTE: This Project Assignment is governed by the terms of an Independent Contractor Services
Agreement in effect between the Util ity and Contractor , including the proprietary rights agreement
attached thereto . In the event that any item in this Project Assignment is inconsistent with that
Agreement, the terms of this Project Assignment shall govern , but only with respect to the services set
forth in this Project Assignment.
Waterloo Telecommunications Utility
By : ______________ _
(Printed Name)
Dated : _____________ _
5
SmartSource Consulting LLC Independent Contractor Agreement
Contractor
Kielkopf Advisory Services, LLC
By Jli e t ·4
Todd R. Kielkopf 7
Title : President
606 W Orchard Ave .
Indianola , IA 50125
515-681-1297
Dated : _ ____,_'-f_,_2_,_'/_~_.2-=(J2~'j,____ __ _
EXHIBIT B
INDEPENDENT CONTRACTOR
CONFIDENTIALITY, TRADE SECRET AND
ASSIGNMENT OF INTELLECTUAL PROPERTY AGREEMENT
1. PROPRIETARY INFORMATION . Contractor agrees during the term of this Agreement
and thereafter that it will take all steps reasonably necessary to hold Waterloo Telecommunications Utility
("Utility ") Proprietary Information in trust and confidence , will not use Proprietary Information in any manner
or for any purpose not expressly set forth in this Agreement, and will not use or disclose any such
Proprietary Information to any third party without first obtaining Utility 's express written consent on a case-
by-case basis . For purposes of th is Agreement, "Proprietary Information " includes , but is not limited to , (a)
trade secrets , intellectua l property , mask works , ideas , processes , formulas , source and object codes , data ,
programs , other works of authorship , know-how , improvements , discoveries , developments , designs and
techniques (hereinafter collectively referred to as "Inte ll ectual Property "); and (b) information regarding
plans for research , development, new products , marketing and selling , bus iness plans , budgets and
unpublished financial statements , licenses , prices and costs , suppliers and customers . Notwithstanding
the other provisions of this Agreement , nothing received by Contractor will be considered to be Utility
Proprietary Information if (1) it has been published or is otherwise readily available to the public other than
by a breach of this Agreement; (2) it has been rightfully received by Contractor from a third party without
confidential limitations ; (3) it has been independently developed for Contractor by personnel or agents
having no access to the Ut ility Proprietary Information ; or (4) it was known to Contractor pr ior to its first
receipt from Ut ility.
2. THIRD PARTY INFORMATION . Contractor understands that the Utility ("Client") have
received and will in the future receive from third parties confidential or proprietary information ("Third Party
Information ") subject to a duty on to maintain the confidentiality of Utility information and use it only for
certa in limited purposes . Contractor agrees to hold Th ird Party Informat ion in confidence and not to
disclose to anyone (other than personnel who need to know such information in connection with their work
for developing the Util ity) or to use , except in connect ion with Contractor 's work planning for the Client ,
Third Party Information unless expressly authorized in writ ing by an officer of the Client with the authority
to release Utility information.
3. NO CONFLICT OF INTEREST. Contractor agrees during the term of this Agreement not
to accept work or enter into a contract or accept an obligation , inconsistent or incompatible with Contractor's
obligations under this Agreement or the scope of serv ices rendered . Contractor warrants that to the best
of its knowledge , there is no othe r exist ing contract or duty on Contractor's part inconsistent with this
Agreement, unless a copy of such contract or a description of such duty is attached to th is Agreement as
Attachment 1. Contractor further agrees not to disclose information , or br ing onto Client's premises , or
induce Client to use any confidential information that belongs to anyone other than Client or Contractor.
4. DISCLOSURE OF WORK PRODUCT. As used in this Agreement, the term "Work
Product" means any Intellectual Property , whether or not patentable , and all related know-how , designs ,
mask works , trademarks , formulae , processes , manufacturing techniques , trade secrets , ideas , artwork ,
software or other protectable works . Contractor agrees to disclose promptly in writing to Client , or any
person designated by Client , all Work Product which is conceived , made , reduced to practice , or learned
by Contractor in the course of any work performed for Ut ility ("Utility Work Product"). Contractor represents
that any Work Product relating to Util ity development or any Project which Contractor has made , conceived
or reduced to practice at the time of signing this Agreement ("Prior Work Product") has been disclosed in
writing to Client and attached to this Agreement as Attachment 2. If disc losure of any such Prior Work
Product would cause Contractor to violate any prior confidentiality agreement , Contractor understands that
it is not to list such Prior Work Product in Attachment 2 but it will disclose a cursory name for each such
Intellectual Property , a listing of the party(ies) to whom it belongs , and the fact that full disclosure as to such
Prior Work Product has not been made for that reason . A space is provided in Attachment 2 fo r such
purpose.
6
SmartSource Consulting , LLC Independent Contractor Agreement
5. OWNERSHIP OF WORK PRODUCT. Contractor shall specifically describe and identify in
Attachment 2 all technology which (a) Contractor intends to use in performing under this Agreement; (b) is
either owned solely by Contractor or licensed to Contractor with a right to sublicense ; and (c) is in existence
in the form of a writing or work ing prototype prior to the Effective Date ("Background Technology ").
Contractor agrees that any and all Intellectual Property conceived , written , created or reduced to practice
in the performance of work under th is Agreement or w ith Utility resources shall be the sole and exclusive
property of Utility.
6. ASSIGNMENT OF UTILITY WORK PRODUCT . Except for Contractor's rights in the
Background Technology , Contractor irrevocably assigns to Client all right , title and interest worldw ide in
and to the Utility Work Product and all applicable intellectual property rights related to the Utility Work
Product , including , without limitation , copyrights , trademarks , trade secrets , patents , moral rights , contract
and licensing rights {the "Proprietary Rights "). Except as set forth below , Contractor retains no rights to
use the Ut ility Work Product and agrees not to challenge the va lid ity of Client's ownership in the Utility Work
Product. Contractor hereby grants to Client a non-exclusive , royalty-free , irrevocable and world-wide right ,
with rights to sublicense through multiple levels of sublicensees , to reproduce , make derivative works of,
publicly perform , and publicly display in any form or medium , whether now known or later developed ,
distribute , make , use , sell and offe r to sell Background Technology and any Prior Work Product
incorporated or used in the Util ity Work Product for the purpose of developing and marketing Utility
products .
7. WAIVER OR ASSIGNMENT OF OTHER RIGHTS . If Contractor has any rights to the
Utility Work Product that cannot be assigned to Client, Contractor unconditionally and irrevocably wa ives
the enforcement of such rights , and all claims and causes of action of any kind against Client with respect
to such rights , and agrees , at Cl ient's request and expense , to consent to and join in any action to enforce
such rights. If Contractor has any right to the Utility Work Product that cannot be assigned to Client or
waived by Contractor , Contractor uncond itionally and irrevocably grants to Client during the term of such
rights , an exclusive , irrevocable , perpetual , worldwide , fully paid and royalty-free license , with rights to
sublicense through multiple levels of sublicensees , to make , use , sell , offer to sell , reproduce , create
derivative works of, distribute , publicly perform and publicly display by all means now known or later
developed , such rights .
8. ASSISTANCE. Contractor agrees to cooperate with Client or its designee(s), both during
and after the term of this Agreement , in the procurement and maintenance of Utility 's rights in Utility Work
Prod uct and to execute , when requested , any other documents deemed necessary by Client to carry out
the purpose of this Agreement. Contractor agrees to execute upon Client's request a signed transfer of
copyright to Client in the form attached to this Agreement as Attachment 3 for all Utility Work Product subject
to copyright protection , including , without limitation , computer programs , notes , sketches , drawings and
reports.
9. ENFORCEMENT OF PROPRIETARY RIGHTS . Contractor will assist Client in every
proper way to obtain , and from time to time enforce , United States and foreign Proprietary Rights relating
to Utility Work Product in any and all countries. To that end , Contractor will execute , verify and deliver such
documents and perform such other acts (including appearances as a witness) as Client may reasonably
request for use in applying for , obtaining , perfecting , evidencing , sustaining and enforcing such Proprietary
Rights and the assignment thereof. In addition , Cont ractor will execute , verify and deliver assignments of
such Proprietary Rights to Client or its designee . Contractor's obligation to assist Utility with respect to
Propr ietary Rights relat ing to such Utility Work Product in any and all countries shall continue beyond the
termination of this Agreement, but Utility shall compensate Contractor at a reasonable rate after such
term ination for the time actually spent by Contractor at Util ity 's request on such assistance .
10. EXECUTION OF DOCUMENTS . In the event Client is unable for any reason , after
reasonable effort , to secure Contractor 's signature on any document needed in connect ion with the actions
specified in the preceding Sections 8, 9 and 10 , Contractor hereby irrevocably designates and appoints
Client and its duly authorized officers and agents as its agent and attorney in fact , which appointment is
7
SmartSource Consulting , LLC Independent Contractor Agreement
coupled with an interest, to act for and in its behalf to execute , verify and file any such documents and to
do all other lawfully permitted acts to further the purposes of the preceding paragraph with the same legal
force and effect as if executed by Contractor. Contractor hereby waives and quitclaims to Client any and
all claims , of any nature whatsoever, which Contractor now or may hereafter have for infringement of any
Proprietary Rights assigned hereunder to Client.
11. ENTIRE AGREEMENT. This Agreement is the final , complete and exclusive agreement
of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions
between Client and Contractor . No modification of or amendment to this Agreement , nor any waiver of any
rights under this Agreement , w il l be effective unless in writing and signed by the party to be charged . The
terms of this Agreement will govern all Project Assignments and services undertaken by Contractor for
Client. In the event of any conflict between this Agreement and a Project Assignment , the Project
Assignment shall control , but only with respect to the services set forth herein.
IN WITNESS WHEREOF , each party has caused this Independent Contractor Services Agreement
to be executed by its duly authorized representative .
Client
Waterloo Telecommunications Utility
By : _____________ _
(Printed Name)
Title: General Manager
Dated : _____________ _
Contractor
SmartSource Consulting LLC
Title: President
606 W Orchard Ave .
Indianola , IA 50125
515-681-1297
Dated : D '-f ~ 2 '-/ .--.2 cJ2-'--f
For copyright registrat ion purposes only , Contractor must provide the following information :
Date of Birth : May 14 , 1968
Nationality or Domicile : US
8
SmartSource Consulting , LLC Independent Contractor Agreement
No
CR-2024.0013
ITG
Michael Regan
PM Broadband Implementation
City of Waterloo/Waterloo Fiber
Change Request Overview
Description of Change (include location)
Reason for Change
Labor & material pricing has been provided by ITG, approved by Waterloo Fiber under Contract 1088. Material Submittals/ Specifications
Due to aesthetic concerns from the Waterloo community, it has been requested by the City to reduce the number of
Marker Posts with Test Stations (Qty. 1,727) along the Backbone route with a Ground Bar solution replacement (Isolation
Switcher). This solution would apply to areas where the grass is mowed or maintained, and will be installed inside the
vaults. The proposed plan, agreed by the City, is to keep 10% of the original quantity of Marker Posts with Test Stations in
the design, which equals 172. This request will remove labor & material costs for 214 Marker Posts with Test Stations and
replacing with labor & material to add 214 Isolation Switches to the project's Bill of Material. The contractor has already
purchased a quantity of 406 Marker Posts w/Test Stations, of which, 234 will be re-purposed and will not require the
proposed Ground Bar solution replacement.
Calculation for Qty. of Marker Posts w/Test Stations replaced with Ground Bar Solution:
The following Change Order has been created to account for the replacement of labor & material for Marker Posts with
Test Stations with a Ground Bar solution installed inside the vaults. The Change Order applies to the project
CONSTRUCTION OF A FIBER-TO-THE-PREMISE FEEDER/DISTRIBUTION AND BACKBONE NETWORK PROJECT,
CONTRACT 1088.
Calculation for Qty. of re-purposed Marker Posts w/Test Stations
Change Order Request
Gene Allred
Director of Construction
Client/Owner
6/18/2024
$2,282.51Change Order Name:
Construction Contractor Name (Attn)
Magellan Project Manager:
Client/Owner (Attn)
Change Order Type
Change Order Cost:
Request Date:
Requested By:
Magellan Sign-Off
Design/Engineering
Will Be Subject To The Withholdings and Release Set Forth In The Contract
Sections 6.2(f)(i) and (ii)Retainage
ITEM QTY
ORIGINAL BOM QTY 1,727
CR 2023-0002 -937
CR 2023-0007 2
10% RETAINED IN DESIGN -172
NEW QTY 620
ITEM QTY
CURRENT ITG INVENTORY ON HAND 301
CURRENT INSTALLED TO DATE 105
ITG PURCHASED QTY 406
ISOLATION SWITCHES NEEDED 214
ITEM QTY
ORIGINAL AMT ITG PURCHASED 406
CURRENT INSTALLED TO DATE (PART OF 10% RETAINAGE QTY)-105
MARKER POSTS W/TEST STATIONS NEEDED FOR RETAINAGE QTY -67
RE-PURPOSE QTY 234
Location
Work Order #
Labor
Underground - Buried Labor -214 $ 65.00 $ (13,910.00)
214 $ 45.00 $ 9,630.00
234 $ 7.50 $ 1,755.00
*** $ (2,525.00)
Materials
Underground Material -214 $ 31.55 $ (6,751.70)
107 $ 48.35 $ 5,173.45
107 $ 59.68 $ 6,385.76
*** $ 4,807.51
*** $ 2,282.51
CR Materials Subtotal
TOTAL CR COST
CR Labor Subtotal
3.5" Dia PVC Round Locate Posts with Orange "Top Hat", 8 ft. in length
with shorting straps -->[EA]
Re-purpose 3.5" Dia PVC Round Marker Posts with Orange Dome Top
with Test Station -->[EA]
Description
NEPTCO #TS19IS5 (TS 5 POLE ISOLATION SWITCH, PLUS GROUND)
Itemized Breakdown of Work
Quantity Unit Price Amount
Install 3.5" Dia PVC Round Marker Posts with Orange Dome Top with
Test Station -->[EA]
Install Isolation Switch 2 pole or 5 pole
NEPTCO #TS19-IS-2 (TS 2 POLE ISOLATION SWITCH, PLUS
GROUND)
Print Name / Title:
Signature:
Date:
Print Name / Title:
Signature:
Date:
Print Name / Title:
Signature:
Date:
**End**
Approvals
Magellan Sign-Off
Gene Allred Director of Construction
Client/Owner (Attn)
Contractor Manager (not needed for design change requests)
Charles Smith Regional Manager
6/24/2024
6/25/2024
Jamie Knutson, P.E. City Engineer
06/25/2024