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HomeMy WebLinkAbout2016-465-E IT - ECC Technologies - fiber inventory DocuSign Envelope ID:6342CBCE-68E9-4EC7-B483-A2371AAAD9D8 [Departmental Use Only] TITLE ECC TECHNOLOGIES FY 2016-17 NORTH CAROLINA SERVICES AGREEMENT UNDER $90,000.00 NO REP/REQ ORANGE COUNTY This Services Agreement (hereinafter "Agreement"), made and entered into this 9th day of August, 2016, ("Effective Date") by and between Orange County, North Carolina a political subdivision of the State of North Carolina (hereinafter, the "County") and ECC Technologies, Inc., (hereinafter, the "Provider"). WITNESSETH: That the County and Provider, •for the consideration herein named, do hereby agree as follows: 1. Services a. Scope of Work. i) This Agreement is for services to be rendered by Provider to County with respect to (insert type of project): providing assessment, planning and consulting in support of the County's desire to develop fiber optic technologies linking County facilities and potentially creating a county-wide Open Access (OA) system. ii) By executing this Agreement, the Provider represents and agrees that Provider is qualified to perform and fully capable of performing and providing the services required or necessary under this Agreement in a fully competent, professional and timely manner. iii) Time is of the essence with respect to this Agreement. iv) The services to be performed under this Agreement consist of Basic Services, as described and designated in Section 3 hereof. Compensation to the Provider for Basic Services under this Agreement shall be as set forth herein. 2. Responsibilities of the Provider a. Services to be provided. The Provider shall provide the County with all services required in Section 3 to satisfactorily complete the Project within the time limitations set forth herein and in accordance with the highest professional standards. b. Standard of Care. i) The Provider shall exercise reasonable care and diligence in performing services under this Agreement in accordance with the highest generally accepted standards of this type of Provider practice throughout the United States and in accordance with applicable federal, state and local laws and regulations applicable to the Revised 6/16 DocuSign Envelope ID:6342CBCE-68E9-4EC7-B483-A2371AAAD9D8 performance of these services. Provider is solely responsible for the professional quality, accuracy and timely completion and/or submission of all work related to the Basic Services. ii) Provider shall be responsible •for all errors or omissions of its agents, contractors, employees, or assigns in the performance of the Agreement. Provider shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional cost to the County. iii) The Provider shall not, except as otherwise provided •for in this Agreement, subcontract the performance of any work under this Agreement without prior written permission of the County. No permission •for subcontracting shall create, between the County and the subcontractor, any contract or any other relationship. iv) Provider is an independent contractor of County. Any and all employees of the Provider engaged by the Provider in the performance of any work or services required of the Provider under this Agreement, shall be considered employees or agents of the Provider only and not of the County, and any and all claims that may or might arise under any workers compensation or other law or contract on behalf of said employees while so engaged shall be the sole obligation and responsibility of the Provider. v) if activities related to the performance of this Agreement require specific licenses, certifications, or related credentials Provider represents that it and/or its employees, agents and subcontractors engaged in such activities possess such licenses, certifications, or credentials and that such licenses certifications, or credentials are current, active, and not in a state of suspension or revocation. vi) in determining the basic services to be provided, should any documents be referenced in this Agreement, the terms of this Agreement shall have priority in any conflict between the terms of referenced documents and the terms of this Agreement. Should a request •for proposals and a proposal be referenced the terms of the request •for proposals shall have priority over the terms of any proposal. 3. Basic Services a. Basic Services. The Services to be rendered pursuant to this Agreement are as follows (fully describe services to be provided): Fiber inventory: the first phase of the project will be to conduct a refresh inventory of the existing fiber infrastructure on the major roads in Orange County and rural areeas ouside the cities and villages. ECC will conduct an Ouside Pland (OSP) windshield field study to gather the relevant information, and then map this information in GIS format. (ECC Technologies conducted specific fiber inventory work in Orange County in 2014 and will need to update the inventory with refreshed data and additional data specific to the Orange County initiative.) Fiber Assessment: The fiber needs assessment will help Orange County identify the viability and sustainability of a County owned fiber network.The information gathered during this phase will provide the County with the information needed to determine its best course of action. The Fiber Assessment will document the needs of the County and other entities that may benefit from the development of a county-wide fiber system. Revised 6/16 2 DocuSign Envelope ID:6342CBCE-68E9-4EC7-B483-A2371AAAD9D8 Included in this phase will be input from municipal, corporate, education, healthcare, and other organziations. The assessment will define routing, cost modeling, and collaboration opportunities, as well as additional information desired by the County in support of this project. If the County elects to keep the system internal to meet its needs, this information will provide the business justification to do so. Business Plan (optional): Based on the information gathered in the first two phases, the County mnay decide to move ahead with the Business Plan phase. The Buisness Plan will provide the foundation needed by the County to develop, build, and operate an open access fiber network. The Business Plan will consist of five main sections: the Business Strategy, Marketing Program, Operational Development, Legal Development, and Financial Analysis and Projections. ECC Technologies will perform these services according to the attached Scope of Work (Exhibit A). Fiber RFP (optional): If the County chooses to construct a fiber network ECC will provide services to create the specifications for the request for proposal (RFP) document as well as attend a pre-bid meeting and provide a recommendation of award. 4. Duration of Services a. Term. The term of this Agreement shall be from August 9, 2016 to June 30, 2017. b. Scheduling of Services. i) The Provider shall schedule and perform its activities in a timely manner. ii) Should the County determine that the Provider is behind schedule, it may require the Provider to expedite and accelerate its efforts, including providing additional resources and working overtime, as necessary, to perform its services in accordance with the approved project schedule at no additional cost to the County. iii)The Commencement Date •for the Provider's Basic Services shall be August 9, 2016. 5. Compensation a. Compensation •for Basic Services. Compensation •for Basic Services shall include all compensation due the Provider from the County •for all services under this Agreement. The maximum amount payable •for Basic Services shall not exceed fifty-four thousand Dollars ($54,000). Payment •for Basic Services shall become due and payable within thirty (30) days of Provider properly invoicing County. Payment shall be subject to provisions of Section 5(b). b. Disputes. In the event the amount stated on an invoice is disputed by the County, the County may withhold payment of all or a portion of the amount stated on an invoice until the parties resolve the dispute. Should Provider fail to perform its duties under the terms of this Agreement, County may, without fault or penalty, withhold any payment associated with the work to be performed until such time as said work is completed. Revised 6/16 3 DocuSign Envelope ID:6342CBCE-68E9-4EC7-B483-A2371AAAD9D8 c. Additional Services. County shall not be responsible for costs related to any services in addition to the Basic Services performed by Provider unless County requests such additional services in writing and such additional services are evidenced by a written amendment to this Agreement. 6. Responsibilities of the County a. Cooperation and Coordination. The County has designated (Jim Northrup) to act as the County's representative with respect to the Project and shall have the authority to render decisions within guidelines established by the County Manager and/or the County Board of Commissioners and shall be available during working hours as often as may be reasonably required to render decisions and to furnish information. 7. Insurance a. General Requirements. Provider shall obtain, at its sole expense, Commercial General Liability insurance, Automobile insurance, Workers' Compensation Insurance, and any additional insurance as may be required by County's Risk Manager as such insurance requirements are described in the Orange County Risk Transfer Policy and Orange County Minimum Insurance Coverage Requirements (each document is incorporated herein by reference and may be viewed at http://www.orangecountync.gov/departrnents/purchasng cikisjon/contractsdphp). If County's Risk Manager determines additional insurance coverage is required such additional insurance shall consist of N/A (if no additional insurance required mark N/A as being not applicable). Provider shall not commence work until such insurance is in effect and certification thereof has been received by the County's Risk Manager. 8. Indemnity a. Indemnity. The Provider agrees to defend, indemnify and hold harmless the County from all loss, liability, claims or expense, including attorney's •fees, arising out of or related to the Project and arising from bodily injury including death or property damage to any person or persons caused in whole or in part by the negligence or misconduct of the Provider except to the extent same are caused by the negligence or willful misconduct of the County. it is the intent of this provision to require the Provider to indemnify the County to the fullest extent permitted under North Carolina law. 9. Amendments to the Agreement a. Changes in Basic Services. Changes in the Basic Services and entitlement to additional compensation or a change in duration of this Agreement shall be made by a written Amendment to this Agreement executed by the County and the Provider. The Provider shall proceed to perform the Services required by the Amendment only after receiving a fully executed Amendment from the County. 10. Termination Revised 6/16 4 DocuSign Envelope ID:6342CBCE-68E9-4EC7-B483-A2371AAAD9D8 a. Termination for Convenience of the County. This Agreement may be terminated without cause by the County and •for its convenience upon seven (7) days' prior written notice to the Provider. b. Other Termination. The Provider may terminate this Agreement based upon the County's material breach of this Agreement; provided, the County has not taken all reasonable actions to remedy the breach. The Provider shall give the County seven (7) days' prior written notice of its intent to terminate this Agreement •for cause. c. Compensation After Termination. i) In the event of termination, the Provider shall be paid that portion of the •fees and expenses that it has earned to the date of termination, less any costs or expenses incurred or anticipated to be incurred by the County due to errors or omissions of the Provider. ii) Should this Agreement be terminated, the Provider shall deliver to the County within seven (7) days, at no additional cost, all deliverables including any electronic data or files relating to the Project. d. Waiver. The payment of any sums by the County under this Agreement or the failure of the County to require compliance by the Provider with any provisions of this Agreement or the waiver by the County of any breach of this Agreement shall not constitute a waiver of any claim •for damages by the County •for any breach of this Agreement or a waiver of any other required compliance with this Agreement. e. Suspension. County may suspend the Basic Services and this Agreement at any time for County's convenience and without penalty to County upon three (3) days' notice to Provider. Upon any suspension by County, Provider shall discontinue work on the Basic Services and shall not resume the Basic Services until notified to proceed by County. H. Additional Provisions a. Limitation and Assignment. The County and the Provider each bind themselves, their successors, assigns and legal representatives to the terms of this Agreement. Neither the County nor the Provider shall assign or transfer its interest in this Agreement without the written consent of the other. b. Governing Law. This Agreement and the duties, responsibilities, obligations and rights of respective parties hereunder shall be governed by the laws of the State of North Carolina. By executing this Agreement Provider affirms that Provider and any subcontractors of Provider are and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. By executing this Agreement Provider certifies that Provider has not been identified, and has not utilized the services of any agent or subcontractor, on the list created by the State Treasurer pursuant to G.S. 147- 86.58. c. Anti-Discrimination. Provider shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all state Revised 6/16 5 DocuSign Envelope ID:6342CBCE-68E9-4EC7-B483-A2371AAAD9D8 and federal anti-discrimination laws, policies, rules, and regulations and the Orange County Anti-Discrimination Policy. Any violation of this requirement is a breach of this Agreement and County may immediately terminate this Agreement without further obligation on the part of the County. This paragraph is not intended to limit and does not limit the definition of breach to discrimination. d. Dispute Resolution. Any and all suits or actions to enforce, interpret or seek damages with respect to any provision of, or the performance or non-performance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina. It is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. Binding arbitration may not be initiated by either Party, however, the Parties may agree to nonbinding mediation of any dispute prior to the bringing of such suit or action. e. Entire Agreement. This Agreement represents the entire and integrated agreement between the County and the Provider and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. f. Severability. If any provision of this Agreement is held as a matter of law to be unenforceable, the remainder of this Agreement shall be valid and binding upon the Parties. g. Ownership of Work Product. Should Provider's performance of this Agreement generate documents, items or things that are specific to this Project such documents, items or things shall become the property of the County and may be used on any other project without additional compensation to the Provider. The use of the documents, items or things by the County or by any person or entity •for any purpose other than the Project as set forth in this Agreement shall be at the full risk of the County. h. Non-Appropriation. Provider acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of County's obligations under this Agreement, then this Agreement shall automatically expire without penalty to County immediately upon written notice to Provider of the unavailability and non-appropriation of public funds. It is expressly agreed that County shall not activate this non-appropriation provision •for its convenience or to circumvent the requirements of this Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. In the event of a change in the County's statutory authority, mandate and/or mandated functions, by state and/or federal legislative or regulatory action, which adversely affects County's authority to continue its obligations under this Agreement, then this Agreement shall automatically terminate without penalty to County upon written notice to Provider of such limitation or change in County's legal authority. Revised 6/16 6 DocuSign Envelope ID:6342CBCE-68E9-4EC7-B483-A2371AAAD9D8 i. Signatures. This Agreement together with any amendments or modifications may be executed electronically. All electronic signatures affixed hereto evidence the intent of the Parties to comply with Article 1 IA and Article 40 of North Carolina General Statute Chapter 66. j. Notices. Any notice required by this Agreement shall be in writing and delivered by certified or registered mail, return receipt requested to the following: Orange County Provider's Name Attention: Joe Starks c/o ECC Tech P.O. Box 8181 13341 Falls of the Neuse Rd. Hillsborough, NC 27278 Raleigh, NC 27614 [SIGNATURE PAGE TO FOLLOW] Revised 6/16 7 DocuSign Envelope ID:6342CBCE-68E9-4EC7-B483-A2371AAAD9D8 IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have hereunder set their hands and sea!, all as of the day and year first above written. ORANGE COUNTY: PROVIDER: DocuSigned by: DocuSigned by: By: 5'61Akuit, AwnotAtIr Stui By: Pa- SfAs 8/9/2016 Boni 46k'' ''.4,11ersley, County Manager 53F 165702C0A4AE 8/17/2016 Joe Starks, Vice President Printed Name and Title Revised 6/16 8 DocuSign Envelope ID:6342CBCE-68E9-4EC7 e483~^2371*AAo9o8 1111111r ECC TECIiNOLOGUES Orange County Telecommunications Consulting Services Scope of Work (Exhibit A) Phase 1: Fiber Inventory Task 1 Orange County OSP Field Study The first phase of the project will be a refresh of the I014 inventory done by E[[ of the existing fiber infrastructure on the major roads in Orange County and then rural areas outside the cities and villages, to the extent possible. Populated areas such as the cities and villages are known to have broadband service and a choice of providers. The north and west areas of the County have been discussed as having broadband availability issues and will be given additional consideration. E[[vvi|| conduct an Outside Plant windshield field study to gather the following relevant information: • ncumbent telephone fiber • Cable TVfiber • Other fiber—CL[Cs, I<-12 Schools, healthcare etc. • Vertical assets such as wireless and water towers Task 2 Mapping Data in GIS Format The inventory will consist of compiling maps and databases with the fiber routing and other information of the types shown above, which will be placed into US format. Un addition to the telecommunications attributes created, the following US mapping layers will be supplied by the County US department for proper visual presentation. This information is required from the County at the time of the contract execution. • City, town, and village boundaries • Census blocks • Major railroad • Airports • Highways • Arterials • Secondary roadways • Waterways Once completed E[[vvi|| provide the County with the inventory mapping information. This information is considered confidential and should not be shared with others outside of the County. Phase 2: Fiber Assessment Task 1—Potential Users The first task of the Fiber Assessment phase will consist of understanding and documenting the County's telecommunication needs, as well as other relevant organizations and potential users within the County. Page 9 U]]4U Falls ofNcusckd Raleigh, NC 27614 DocuSign Envelope ID:6342CBCE-68E9-4EC7 e483~^2371*AAo9o8 1111111r ECC TECHNOLOGUES Orange County Telecommunications Consulting Services After that we will compare those needs to developing County owned fiber infrastructure as an internal and/or collaborative Open Access fiber network. We will identify and consider other developing networks such Piedmont Electric Cooperative, as well as connecting the MCNC backbone into the County. During the process ECC will determine annual cost of telecommunications services the County is currently incurring and the "cost avoidance" benefit of building a fiber network. E[[ will provide preliminary budgetary and operations costs, which will support or refute the decision to pursue County owned fiber. ECC will also identify and document the potential for the County to develop a collaborative Open Access Model (OAM), which will foster public/private partnerships. A key component of our process will be to meet and interview with potential high bandwidth users or"anchor" organizations within the County that may be interested in partnering. During this process we will determine levels of interest, start developing the needed public/private partnerships, and begin to identify financial support for the initiative. This information will be included in the Open Access Business Plan should the County decide to pursue one. The organizations that will be included in the Fiber Assessment process are: • Service providers, including CLECs, network providers, cellular providers, and MSPs • Educational institutions (school districts and colleges) • Government agencies: Public Safety, and economic development agencies • Hospitals and healthcare organizations • Various local businesses E[[ will also review and make summary comments on responses the County received to its Broadband Survey initiative. This type of information can be used to help lure third party service providers into the area. During this task we will begin the process of identifying stakeholders and potential infrastructure users to determine the potential levels of support that can be expected and the placement of access locations to the fiber. Later, general potential revenue dollar expectations will be developed to demonstrate sustainability of the infrastructure and the user locations to help determine preliminary infrastructure routing. Potential Customer Locations Once the potential fiber user meetings have been conducted, a list of organizations and locations will be compiled and mapped. The mapping information (service providers and others) gathered in the inventory phase will be overlaid with the County's census map. High yield opportunities such as wireless broadband, cellular, business parks, education, and Public Safety will be considered — it has been our experience that partnering with the telecom industry can be a key factor in the success of these types of initiatives. Un this case the community provides the infrastructure and the service provider's use it. Partnerships with Piedmont EMC and other fiber owners will also be explored during this assessment. Task 2 Preliminary Routes E[[ will develop preliminary routes in order to deliver fiber optic infrastructure to the identified subscriber base and make the connection to the MCNC fiber backbone. ECC's approach to route design Page 10 U]]4U Falls ofNc sckd Raleigh, NC 27614 DocuSign Envelope ID:6342CBCE-68E9-4EC7 e483~^2371*AAo9o8 1111111r -111 ECC TECHNOLOGUES Orange County Telecommunications Consulting Services will begin with understanding the expectations and assumptions of the County. Since route diversity from existing carrier facilities is important, our fiber mapping tasks in the previous inventory study will be important as it will identify and document placement of existing infrastructure owned by others. The fiber will be set up in ring configuration to ensure diversity and redundancy of services if feasible. E[[vvi|| target the organizations discussed above, among others. During the nventory and Assessment phases the E[[ OSP personnel will have identified key factors important to the development of the fiber infrastructure as it relates to the cost to build, the proximity to potential users, the expansion of broadband, the ability to support economic development, focus site opportunities, and connection to MCNC fiber, as well as impacts for educational, municipal, Public Safety, healthcare initiatives, and others. E[[ vvi|| work with the County representatives to identify and locate potential network users. During this phase the following areas will be considered. • The extent of the fiber backbone • Last mile solutions • Locations nf Points nfPresence • Wireless applications • Cellular phone services implications • Connectivity with existing public and private networks • Alternative technologies • Scheduling and implementation Task 3 -Report At the end of the nventory and Fiber Assessment phases E[[ will provide the information gathered during these phases, which will be used to show the sustainability of a County internal network. High level recommendations on the viability and attractiveness of an Open Access system will also be provided. This information will be put together in a summary report that will be delivered to the County prior to the development of the Open Access Business Plan should the County decide to pursue one. Phase 3: usiness Plan Development (Optional) Should Orange County decide to consider fiber expansion opportunities to businesses, schools, government, homes and others, ECC will develop a Business Plan to support such an Open Access middle mile initiative. The Business Plan will consist of the following: Business Strategy, Marketing Program, Operational Development, Legal Development, Financial Projections, and an Appendix of supporting materials. E[[ will work with the Orange County team to identify suitable organizational models. We will consider existing as well as "to be formed" organizations that will address administrative, marketing, and operational components for the network. The organization can vary from different types of governmental or not-for-profit agencies to outsource contracts or a combination thereof. Below is a list of the standard Business Plan sections with corresponding section titles that will be covered. P I U]]4U Falls ofNc sckd Raleigh, NC 27614 DocuSign Envelope ID:6342CBCE-68E9-4EC7 e483~^2371*AAo9o8 1111111r ECC TECHNOLOGUES Orange County Telecommunications Consulting Services usiness Strategy Assumptions, Business Opportunity, Mission Statement, Technical Definition, Business Model and Justification, Service Offering, Customer Value Proposition, Development Timelines, Regional Approach Marketing Program Assumptions, Market Opportunity, dentify Target Customers, Develop Market Position/Strategies, Develop a Marketing Plan, Marketing Team, Competition Relevant Comparisons, Pricing Strategies Operational Development Assumptions, Operational Components, Management Team, Capital Costs & Operational Costs, Funding Model Legal Development Assumptions, Governance Options, Regulatory Risks and Requirements, Right of Way (ROW) and Pathway Structures Contracts, Exit Strategies Financial Pr 'ecbmns Detailed accountant--based infrastructure and operational summaries. (we will work with the County team to develop consolidated financials for the fiber project), Balance sheets, ncome statements, Revenue and Expense Statements, Cash Flow, Construction Timing, Sources and Uses, and Hypothetical Assumptions. Appendix Additional supporting information including relevant documentation and sample contracts Assessment Report and Maps An nventory and Fiber Assessment/Business Plan Document with maps five copies to be provided Phase 4: Fiber RFP Creation and Administration (Optional) Based on the previous work, if Orange County should decide to construct fiber, E[[ will provide the following unitized Request for Proposal (RFP) services to determine actual cost of construction and select a build company. Creation -Planning&Analysis E[[ will draft, for final review by Orange County, an RFP specification for the County to take out to bid to competitively procure unit cost construction estimates for a fiber build in Orange County. nformation gathered in the Business Plan document will be used to support the RFP. County will be responsible for the frontend of the bidding document with County bidding information for the RFP, RFP Administration County will advertise the RFP, ECC will attend a pre-proposal review meeting with prospective bidders and ECC will respond to construction companies with questions and issue any necessary RFP addenda. E[[ will review and tabulate RFP responses and provide a summary report to the County with our Page 12 U]]4U Falls ofNc sckd Raleigh, NC 27614 DocuSign Envelope ID:6342CBCE-68E9-4EC7 e483~^2371*AAo9o8 0//z Ans,111111111111111111111 1111111r ECC TECliNOLOGUES Orange County Telecommunications Consulting Services recommendations for contract awards. E[[ will make recommendations and assist the County in reviewing and executing contracts with the construction company. Pricing E[[ proposes a "not to exceed" format for the Fiber Unventnry, Assessment and Business Plan phases of this project. Phase Task Description Cost 1 1 Orange County OSP Field Study $6,000 2 Mapping Data in GUS Format $3,000 2 1 Potential Users/assessments $1I,000 2 Preliminary Routes/ budgets/costs $11,000 • • 3 Assessment Report and Maps $5,000 • 3 1 Business Plan Development (optional) $1I,000 • 4 1 Fiber RFP Creation and Administration $5,000 • Total $54,000 The overall fee for the scope of work submitted is not to exceed $54,000.00 Project Timeline: The estimated project time needed by phase is outlined below. Ut is anticipated that some tasks can be performed concurrent with others. The estimated total project will require approximately five to six and a-half months from authorization to completion. Phase 1 2 months Phase 2 3 months Optional Phase 3 1.5 months Optional Phase 4 2.0 months Page- 13 - 13341 Falls of Neuse Rd., Raleigh, NC 27614