PGE d/b/a Utility Asset Management - New Library CITY OF TIGARD,OREGON
PERSONAL SERVICES CONTRACT
THIS AGREEMENT made and entered into this 8th day of May, 2003 by and between the CITY
OF TIGARD,a municipal corporation of the State of Oregon,hereinafter called CITY, and Portland
General Electric d/b/a Utility Asset Management,hereinafter called CONSULTANT.
WITNESSETH
WHEREAS, CITY has need for the services of a company with a particular training, ability,
knowledge, and experience possessed by CONSULTANT,and
WHEREAS, City has determined that Consultant is qualified and capable of performing the
professional services as CITY does hereinafter require,under those terms and conditions set forth:
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree
as follows:
1. SERVICES TO BE PROVIDED:
CONSULTANT shall initiate services immediately upon receipt of CITY'S notice to
proceed, together with an executed copy of this Agreement. CONSULTANT agrees to
complete work which is detailed in Exhibit "A" and by this reference made a part hereof.
2. EFFECTIVE DATE AND DURATION:
This Agreement shall become effective upon the date of execution, and shall expire, unless
otherwise terminated on June 30, 2003. All work under this Agreement shall be completed
prior to the expiration of this Agreement.
3. COMPENSATION:
CITY agrees to pay CONSULTANT not to exceed $4,970.00 for performance of those
services described herein, which payment shall be based upon the following applicable
terms:
a. Payment by CITY to CONSULTANT for performance of services under this
Agreement includes all expenses incurred by CONSULTANT,with the exception of
expenses,if any,identified in this Agreement as separately reimbursable.
b. Payment will be made in installments based on CONSULTANT'S invoice, subject
to the approval of the City Manager, and not more frequently than monthly.
Payment shall be made only for work actually completed as of the date of invoice.
All invoices are due within 30 days from receipt.
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C. Payment by CITY shall release CITY from any further obligation for payment to
CONSULTANT, for services performed or expenses incurred as detailed on the
invoice. Payment shall not be considered acceptance or approval of any work or
waiver of any defects therein.
d. CONSULTANT shall make payments promptly, as due, to all persons supplying
labor or materials for the prosecution of this work.
e. CONSULTANT shall not permit any lien or claim to be filed or prosecuted against
the CITY on any account of any labor or material furnished.
f. CONSULTANT shall pay to the Department of Revenue all sums withheld from
employees pursuant to ORS 316.167.
g. If CONSULTANT fails, neglects or refuses to make prompt payment of any claim
for labor or services furnished to CONSULTANT or a subcontractor by any person
as such claim becomes due, CITY'S Finance Director may pay such claim and
charge the amount of the payment against funds due or to become due the
CONSULTANT. The payment of the claim in this manner shall not relieve
CONSULTANT or their surety from obligation with respect to any unpaid claims.
h. The CITY certifies that sufficient funds are available and authorized for expenditure
to finance costs of this contract.
4. OWNERSHIP OF WORK PRODUCT:
Excluding any "Consultant Owned Intellectual Property" CITY shall be the owner of and
shall be entitled to possession of any and all work products of CONSULTANT which result
from this Agreement, including any computations, plans, or pertinent data and information
gathered by or computed by CONSULTANT prior to termination of this Agreement by
CONSULTANT or upon completion of the work pursuant to this Agreement. Consultant
Owned Intellectual Property shall consist of any inventions, patents, copyrights, trade
secrets and other forms of intellectual property owned by CONSULTANT prior to its
entering into this Agreement or developed or acquired by CONSULTANT outside the
scope of t this Agreement. CONSULTANT hereby grants to CITY a nonexclusive,
perpetual, fully-paid worldwide license, for internal use only, to use the Consultant
Owned Intellectual Property which are incorporated into the work and the products and/or
services delivered by CONSULTANT hereunder.
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5. ASSIGNMENT/DELEGATION:
Neither party shall assign, sublet or transfer any interest in or duty under this Agreement
without the written consent of the other and no assignment shall be of any force or effect
whatsoever unless and until the other party has so consented. If CITY agrees to assignment
of tasks to a subcontract, CONSULTANT shall be fully responsible for the acts or
omissions of any subcontractors and of all persons employed by them, and neither the
approval by CITY of any subcontractor nor anything.contained herein shall be deemed to
create any contractual relation between the subcontractor and CITY.
6. STATUS OF CONSULTANT AS INDEPENDENT CONSULTANT:
CONSULTANT certifies that:
a. CONSULTANT acknowledges that for all purposes related to this Agreement,
CONSULTANT is and shall be deemed to be an independent contractor as defined
by ORS 670.700 and not an employee of CITY, shall not be entitled to benefits of
any kind to which an employee of CITY is entitled and shall be solely responsible
for all payments and taxes required by law. Furthermore, in the event that
CONSULTANT is found by a court of law or any administrative agency to be an
employee of CITY for any purpose, CITY shall be entitled to offset compensation
due, or to demand repayment of any amounts paid to CONSULTANT under the
terms of this Agreement, to the full extent of any benefits or other remuneration
CONSULTANT receives (from CITY or third party) as a result of said finding and
to the full extent of any payments that City is required to make (to CONSULTANT
or to a third party) as a result of said finding.
b. The undersigned CONSULTANT hereby represents that no employee of the CITY,
or any partnership or corporation in which a CITY employee has an interest, has or
will receive any remuneration of any description from CONSULTANT, either
directly or indirectly, in connection with the letting or performance of this
Agreement, except as specifically declared in writing.
If this payment is to be charged against Federal funds, CONSULTANT certifies that
he or she is not currently employed by the Federal Government and the amount
charged does not exceed his or her normal charge for the type of service provided.
CONSULTANT and its employees, if any, are not active members of the Oregon
Public Employees Retirement System and are not employed for a total of 600 hours
or more in the calendar year by any public employer participating in the Retirement
System.
C. CONSULTANT certifies that it currently has a CITY business license or will obtain
one prior to delivering services under this Agreement.
d. CONSULTANT is not an officer, employee, or agent of the CITY as those terms are
used in ORS 30.265.
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7. INDEMNIFICATION:
CITY has relied upon the professional ability and training of CONSULTANT as a material
inducement to enter into this Agreement. CONSULTANT warrants that all its work will be
performed in accordance with generally accepted professional practices and standards as
well as the requirements of applicable federal, state and local laws, it being understood that
acceptance of a consultant's work by CITY shall not operate as a waiver or release.
CONSULTANT agrees to indemnify and defend the CITY, its officers, agents and
employees and hold them harmless from any and all liability, causes of action, claims,
losses, damages,judgments or other costs or expenses including attorney's fees and witness
costs and(at both trial and appeal level,whether or not a trial or appeal ever takes place)that
may be asserted by any person or entity which in any way arise from the negligent or
wrongful acts or omissions, during or in connection with the performance of the work
described in this contract, except liability arising out of the negligence of the CITY and its
employees. Such indemnification shall also cover claims brought against the CITY under
state or federal worker's compensation laws. If any aspect of this indemnity shall be found
to be illegal or invalid for any reason whatsoever,such illegality or invalidity shall not affect
the validity of the remainder of this indemnification.
NEITHER PARTY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL,
SPECIAL, PUNITIVE, INDIRECT OR INCIDENTAL DAMAGES FOR BREACH OF
IMPLIED OR EXPRESS WARRANTY, FOR NEGLIGENCE OR FOR ANY OTHER
REASON. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO
THE CONTRARY, IN NO EVENT SHALL EITHER PARTY BE LIABLE, UNDER
ANY THEORY OF LAW OR EQUITY WHATSOEVER, FOR MORE THAN THE
AMOUNT PAID BY THE CITY TO CONSULTANT UNDER THE TERMS OF THIS
AGREEMENT.
8. INSURANCE:
CONSULTANT and its subcontractors shall maintain insurance acceptable to CITY in full
force and effect throughout the term of this contract. Such insurance shall cover all risks.
arising directly or indirectly out of CONSULTANT'S activities or work hereunder,. Such
insurance shall include provisions that such insurance is,to the extent of CONSULTANT's
indemnity obligations herein, primary insurance with respect to the interests of CITY and
that any other insurance maintained by CITY is excess and not contributory insurance with
the insurance required hereunder.
The policy or policies of insurance maintained by the CONSULTANT and its subcontractor
shall provide at least the following limits and coverages:
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a: Commercial General Liability Insurance
CONSULTANT shall obtain, at consultant's expense, and keep in effect during
the term of this contract, Comprehensive General Liability Insurance covering
Bodily Injury and Property Damage on an "occurrence" form (1986 ISO or
equivalent). This coverage shall include Contractual Liability insurance for the
indemnity provided under this contract. The following insurance will be carried:
Coverne Limit
General Aggregate 2,000,000
Products-Completed Operations Aggregate 1,000,000
Personal &Advertising Injury 1,000,000
Each Occurrence 1,000,000
Fire Damage(Any one fire) 50,000
Medical Expense(Any one person) 5,000
b. Commercial Automobile Insurance
CONSULTANT shall also obtain, at consultant's expense, and keep in effect
during the term of the contract, "Symbol 1" Commercial Automobile Liability
coverage including coverage for all owned, hired, and non-owned vehicles. The
Combined Single Limit per occurrence shall not be less than$1,000,000.
C. Workers' Compensation Insurance
The 'CONSULTANT, its subcontractors, if any, and all employers providing
work, labor or materials under this Contract are subject employers under the
Oregon Workers' Compensation Law and shall comply with ORS 656.017, which
requires them to provide workers' compensation coverage that satisfies Oregon
law for all their subject workers. Out-of-state employers must provide Oregon
workers' compensation coverage for their workers who work at a single location
within Oregon for more than 30 days in a calendar year. Consultants who
perform work without the assistance or labor of any employee need not obtain
such coverage. This shall include Employer's Liability Insurance with coverage
limits of not less than$100,000 each accident.
d. Additional Insured Provision
The City of Tigard, Oregon, its officers, directors, and employees shall be added
as additional insureds with respect to this contract. All Liability Insurance
policies will be endorsed to show this additional coverage.
e. Notice of Cancellation
There shall be no cancellation, material change, exhaustion of aggregate limits or
intent not to renew insurance coverage without 30 days written notice to the
CITY: Any failure to comply with this provision will not affect the insurance
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coverage provided to the City. The 30 days notice of cancellation provision shall
be physically endorsed on to the policy.
f. Insurance Carrier Rating
Coverages provided by the CONSULTANT must be underwritten by an insurance
company deemed acceptable by the CITY. The CITY reserves the right to reject
all or any insurance carrier(s)with an unacceptable financial rating.
g. Certificates of Insurance
As evidence of the insurance coverage required by the contract, the consultant
shall furnish a Certificate of Insurance to the CITY. No contract shall be effected
until the required certificates have been received and approved by the CITY. The
certificate will specify and document all provisions within this contract and be
sent to:.
Greg N. Berry, P.E.,Utility Engineer
City of Tigard
13125 SW Hall Blvd.
Tigard, OR 97223
h. Independent Consultant Status
The service or services to be rendered under this contract are those of an
independent consultant. CONSULTANT is not an officer, employee or agent of
the CITY as those terms are used in ORS 30.265.
i. Self-Insurance
All or part of the insurance coverages required in this Article 8 INSURANCE
may be self-insured to the extent CONSULTANT self-insures its similar
operations. A certificate of self-insurance shall be furnished upon request from
the CITY.
j. Cross-Liability Clause
A cross-liability clause or separation of insureds clause will be included in all
general liability, professional liability, pollution and errors and omissions policies
required by this contract.
The procuring of such required insurance shall not'be construed to limit consultant's liability
hereunder. Notwithstanding said insurance,CONSULTANT shall be obligated for the total
amount of any damage, injury, or loss caused by negligence or neglect connected with this
contract.
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9. METHOD AND PLACE OF GIVING NOTICE, SUBMITTING BILLS AND MAKING
PAYMENTS.
All notices, bills and payments shall be made in writing and may be given by personal
delivery or by mail. Notices, bills and payments sent by mail should be addressed as
follows:
CITY OF TIGARD
Greg N. Berry,P.E.,Utility Engineer
13125 SW Hall Blvd.
Tigard, Oregon 97223
CONSULTANT
Portland General Electric
d/b/a Utility Asset Management
2213 153d Drive
Portland, OR 97006
and when so addressed, shall be deemed given upon deposit in the United States mail,
postage prepaid. In all other instances, notices,bills and payments shall be deemed given at
the time of actual delivery. Changes may be made in the names and addresses of the person
to whom notices,bills and payments are to be given by giving written notice pursuant to this
paragraph.
10. TERMINATION WITHOUT CAUSE:
At any time and without cause, CITY shall have the right in its sole discretion, to terminate
this Agreement by giving notice to CONSULTANT. If CITY terminates the contract
pursuant to this paragraph, it shall pay CONSULTANT for services rendered and expenses
incurred as of the date of termination.
11. TERMINATION WITH CAUSE:
a. CITY may terminate this Agreement effective upon delivery of written notice to
CONSULTANT, or at such later date as may be established by CITY, under any of
the following conditions:
i. If CITY funding from federal, state, local, or other sources is not obtained
and continued at levels sufficient to allow for the,purchase of the indicated
quantity of services. This Agreement may be modified to accommodate a
reduction in funds
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ii. If federal or state regulations or guidelines are modified, changed, or
interpreted in such a way that the services are no longer allowable or
appropriate for purchase under this Agreement.
iii. If any license or certificate required by law or regulation to be held by
CONSULTANT, its subcontractors, agents, and employees to provide the
services required by this Agreement is for any reason denied,revoked, or not
renewed.
iv. If CONSULTANT becomes insolvent, if voluntary or involuntary petition in
bankruptcy is filed by or against CONSULTANT, if a receiver or trustee is
appointed for CONSULTANT, or if there is an assignment for the benefit of
creditors of CONSULTANT.
Any such termination of this agreement under paragraph (a) shall be without prejudice to
any obligations or liabilities of either party already accrued prior to such termination.
b. CITY, by written notice of default (including breach of contract) to
CONSULTANT,may terminate the whole or any part of this Agreement:
i. If CONSULTANT faits to provide services called for by this agreement
within the time specified herein or any extension thereof, or
ii. If CONSULTANT fails to perform any of the other provision& of this
Agreement, or so fails to pursue the work as to endanger performance of this
agreement in accordance with its terms, and after receipt of written notice
from CITY, fails to correct such failures within ten (10) days or such other
period as CITY may authorize.
iii. If CONSULTANT fails to eliminate a conflict as described in Section 11
of this agreement.
The rights and remedies of CITY provided in the above clause related to defaults (including
breach of contract) by CONSULTANT shall not be exclusive and are in addition to any
other rights and remedies provided by law or under this Agreement.
If CITY terminates this Agreement under paragraph(b), CONSULTANT shall be entitled to
receive as full payment for all services satisfactorily rendered and expenses incurred, an
amount which bears the same ratio to the total fees specified in this Agreement as the
services satisfactorily rendered by CONSULTANT bear to the total services otherwise
required to be performed for such total fee; provided, that there shall be deducted from such
amount the amount of damages, if any, sustained by CITY due to breach of contract by
CONSULTANT. Damages for breach of contract shall be those allowed by Oregon law,
reasonable and necessary attorney fees, and other costs of litigation at trial and upon appeal.
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12. ACCESS TO RECORDS:
CITY shall have access to such books, documents, papers and records of CONSULTANT
as are directly pertinent to this Agreement for the purpose of making audit, examination,
excerpts and transcripts.
13. FORCE MAJEURE:
Neither CITY nor CONSULTANT shall be considered in default because of any delays in
completion and responsibilities hereunder due to causes beyond the control and without
fault or negligence on the part of the parties so disenabled,including but not restricted to, an
act of God or of a public enemy, civil unrest, volcano, earthquake, fire, flood, epidemic,
quarantine restriction, area-wide strike, freight embargo, unusually severe weather or delay
of subcontractor or supplies due to such cause; provided that the parties so disenabled shall
within ten (10) days from the beginning of such delay, notify the other party in writing of
the cause of delay and its probable extent. Such notification shall not be the basis for a
claim for additional compensation. Each party shall,however,make all reasonable efforts to
remove or eliminate such a cause of delay or default and shall, upon cessation of the cause,
diligently pursue performance of its obligation under the Agreement.
14. NON-WAIVER:
The failure of CITY to insist upon or enforce strict performance by CONSULTANT of any
of the terms of this Agreement or to exercise any rights hereunder, should not be construed
as a waiver or relinquishment to any extent of its rights to assert or rely upon such terms or
rights on any future occasion.
15. NON-DISCRIMINATION:
CONSULTANT agrees to comply with all applicable requirements of federal and state civil
rights and rehabilitation statues, rules, and regulations. CONSULTANT also shall comply
with the Americans with Disabilities Act of 1990, ORS 659.425, and all regulations and
administrative rules established pursuant to those laws.
16. ERRORS:
CONSULTANT shall perform such additional work as may be necessary to correct errors in
the work required under this Agreement without undue delays and without additional cost.
17. EXTRA(CHANGES)WORK:
Only the Utility Engineer or City Engineer may authorize extra (and/or changes) work.
Failure of CONSULTANT to secure authorization for extra work shall constitute a waiver
of all right to adjustment in the contract price or contract time due to such unauthorized
extra work and CONSULTANT thereafter shall be entitled to no compensation whatsoever
for the performance of such work.
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18. WARRANTIES:
All work shall be guaranteed by CONSULTANT for a period of one year after the date of
final acceptance of the work by the owner. CONSULTANT warrants that all practices and
procedures, workmanship and materials shall be the best available unless otherwise
specified in the profession. Neither acceptance of the work nor payment therefore shall
relieve CONSULTANT from liability under warranties contained in or implied by this
Agreement.
19. ATTORNEY'S FEES:
In case suit or action is.instituted to enforce the provisions of this contract, the parties agree
that the losing party shall pay such sum as the court may adjudge reasonable attorney fees
and court costs,including attorney's fees and court costs on appeal.
20. GOVERNING LAW:
The provisions of this Agreement shall be construed in accordance with the provisions of
the laws of the State of Oregon. Any action or suits involving any question arising under
this Agreement must be brought in the appropriate court of the State of Oregon.
21. COMPLIANCE WITH APPLICABLE LAW:
CONSULTANT shall comply with all federal, state, and local laws and ordinances
applicable to the work under this Agreement, including those set forth in ORS 279.310 to
279.320.
22. CONFLICT BETWEEN TERMS:
It is further expressly agreed by and between the parties hereto that should there be any
conflict between the terms of this instrument in the proposal of the contract, this instrument
shall control and nothing herein shall be considered as an acceptance of the said terms of
said proposal conflicting herewith.
23. AUDIT:
For a period of five (5) years from the effective date, CONSULTANT shall maintain
records to assure conformance with the terms and conditions of this Agreement, and to
assure adequate performance and accurate expenditures within the contract period.
CONSULTANT agrees to permit CITY, the State of Oregon, the:federal government, or
their duly authorized representatives to audit all records pertaining to this Agreement to
assure the accurate expenditure of funds.
.24. SEVERABILITY:
In the event any provision or portion of this Agreement is held to be unenforceable or
invalid by any court of competent jurisdiction, the validity of the remaining terms and
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provisions shall not be affected to the extent that it did not materially affect the intent of the
parties when they entered into the agreement.
25. COMPLETE AGREEMENT-
This Agreement and attached exhibits constitutes the entire Agreement between the parties.
No waiver, consent, modification,:or change of terms of this Agreement shall bind either
party unless in writing and signed by both parties: Such waiver, consent, modification, or
change if made, shall be effective only in specific instances and for the specific purpose
given. There are no understandings, agreements, or representations, oral or written, not
specified herein regarding this Agreement. CONSULTANT, by the signature of its
authorized representative, hereby acknowledges that he has read this Agreement,
understands it and agrees to be bound by its terms and conditions.
IN WITNESS WHEREOF, CITY has caused this Agreement to be executed by its duly
authorized undersigned officer and CONSULTANT has executed this Agreement on the
date hereinabove first written.
CONSULTANT
7. P.Sullivan '5/-2 1 I0�
By:
Portland General Electric d/b/a utility Asset Management
CITY OF TIGARD
By: Agust' . Duenas,P.E.,City Engineer
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EXHIBIT `A'
SERVICES TO BE PROVIDED
Scope of Services will, be as outlined in the attached Proposal for Engineering Services dated
May 5, 2003.
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Proposal for Engineering Services
to
City of 'Tigard, Oregon
,t.
Portland General
Utility Asset Management
May 5, 2003
Description of Engineering Services
Situation Analysis
The City of Tigard seeks engineering services related torthe installation of approximately 2000 feet of
24 count fiber optic cable,connecting the new Library to'City Hall.
✓ Fiber optic cable to be installed on up to 7 utility poles.(includes one pole at each end for dead end and
anchor)and in approximately 600 feet of 2 inch conduit(estimated 150 feet provided by City of Tigard
at new Library).
✓ Proposed route originates in the communications room at the Tigard City Hall,located at 13125 SW
Hall Blvd.The route proceeds underground via directional bore approximately 400 feet to the East in
one of two 2-inch conduits(includes 1 spare to be installed),crossing under Hall Blvd,and attaching to
utility pole no. 3044.Route then proceeds overhead approximately 950 feet to the South on utility
poles to pole no.3048.The route then proceeds underground in a 2-inch conduit(plus 1 spare)to a
new junction box planned for location at the new Library frontage.From new junction box,the fiber
optic cable is then pulled in 2-inch conduit approximately 150 feet to termination point in new Library
communications room(conduit provided by City of Tigard).
UAM Approach
Utility Asset management(UAM)is a division of Portland General Electric that was formed eight years
ago to help efficiently manage pole plant assets. UAM has the knowledge and expertise to provide
engineering and design services for fiber installations. UAM has many years of experience with joint
use of utility poles,and has knowledge of the National Electric Safety Code and it's requirements for
fiberattachments. UAM has the design experience to effectively design a fiber route,develop
specifications for equipment and construction activities and manage a project of this type effectively.
UAM is also qualified and has the experience to install the fiber facilities once the design phase of the
project is completed.
This proposal for engineering services was prepared in response to a request by Greg Berry,Engineer for
the City of Tigard,Oregon.
Deliverables
The following is a list of the deliverables included in this proposal:
1. Final route determination.
2. Completed field inspection and structural analysis of utility poles along fiber route.
3. Connection details at City Hall communications room access and for underground connection to
proposed,new junction box at Library frontage(specifications for new junction box included).
4. Documentatiomof make ready requirements necessary to ensure compliance with National Electric
Safety Code(NESC).
5. Three(3)completed sets of construction drawings and specifications as required for underground
and overhead fiber cable installation, including transitions and reserve fiber storage,and pretpost
installation acceptance testing.
6. Material specifications for fiber and attachment hardware:as required.
7. Utility Asset Management to secure permit for underground crossing of Hall Blvd.
8. Completed permit applications for overhead attachment to PGE utility poles.
9. Project Schedule.
10. Project cost estimate for fiber installation from City Hall communications room to new junction box
at Library frontage.
Roles and Responsibilities
City of All labor,equipment,and materials related to specification(s)of terminations and switching equipment at both
Tigard ends of route.
City of Reasonable and timely access to City of Tigard property,including communications room and new Library site,
Tigard as needed to complete tasks identified in this proposal.
City of Approve Facilities Attachment Agreement(FAA)with Portland General Electric dba Utility Asset Management
Tigard (UAM).
City of Minimum requirements and specifications for fiber optic wire.
Tigard
City of City of Tigard and Portland General Electric dba Utility Asset Management(UAM),jointly negotiate and
Tigard/ execute a Personal Services Contract.
UAM
UAM Provide all personnel and equipment necessary to provide services included in this proposal.UAM will provide
a Project Manager for the duration of project.
UAM Provide timely Project Updates/Status Report to City of Tigard.
NOTE: This proposal does not include the project management or construction services to install the
fiber facilities.
Schedule
Once City of Tigard has approved this proposal, UAM will mobilize and complete tasks per the
estimated schedules as follows: .
• May 7,2003 Commence project and finalize schedule.
• May 12,2003 Submit J Box Description.
• May 19,2003 Submit Project Cost Estimate.
• June 2,2003 Submit Final Deliverables.
Pricing Proposal
Service Unit Price Units Extended Price
Engineering Services $4900, Lump Sum $4900
Completed attachment permit
applications for estimated 7 $70 Lump Sum $70
utility poles
Total $4970
Note: The above pricing is good for 30 days from the date shown on the cover letter-
May 5,2003.