MBI Participation Agreement
After getting through the “readiness” process and signing the Letter of Recommendation with Peter Larkin and the MOA with MBI for the pole survey, the next step will be signing a “Participation Agreement.,” or whatever it is finally called. This is the point of committing the town and it’s money to having MBI manage your project. MBI is currently drafting the template for this document. They are consulting Ashfield (David Kulp) for input from the towns’ perspective and may include others later. It’s extremely important to get the details right and make sure there is nothing in the agreement that prevents a town from participating in WiredWest’s regional plans or otherwise adversely impairs the towns control over the use of it’s money and assets. Towns should go over this document with their Counsel and Financial advisors. Here are some points to consider:
- The MBI Last Mile Policy calls for towns to individually own all assets of their network. A recent exception is made for private partners to own the network. In order to be part of a regional network operation, towns may need some shared assets (fiber and equipment) to link the individual network into a region. Make sure the town has the ability to assign or transfer ownership of network assets.
- The MBI Last Mile Policy also requires town projects to “build off of and utilize MassBroadband 123, unless the parties (MBI and the town) deem an alternative solution to be warranted.” A linked regional network only needs one or two connections to the outside world. We may also need to lease some dark fiber. Within the regional network, towns share bandwidth and operations, so each town does not need to utilize the MB123 backhaul independently. Doing so would be expensive and inefficient. If you plan to be part of WiredWest or other regional network, your Participation Agreement should relieve you of the requirement for your town’s network to individually connect and utilize the MB123 Middle Mile.
- Towns should have complete autonomy in the operation of its network and all decisions concerning it.
The above are particularly pertinent to towns planning to be part of a regional operation. The following are more general considerations:
- Towns should have sufficient oversight into the design and execution of the project. Each town should have the authority to approve or reject each phase of build out including but not limited to design, review of all designs, bidding, construction , change orders, and review of all documents.
- Consider requiring a standard contractor’s contract with MBI that will specify a performance penalty, etc.
- We’d like MBI to provide monthly accounting with line items.
- Payments should be made according to a monthly draw schedule based on anticipated expenditures.
- MBI’s current draft schedule of payments requires all money paid in advance of construction. We’d like towns to be able to withhold payment of up to 10% of construction costs from each invoice until satisfactory conclusion of each step reflected by said invoice.
- The original Professional Services budget included $8M for an Owner’s Project Manager. MBI has since hired staff that represent the State and would use about half of that budget. Towns should have an independent Owner’s Project Manager to represent our interests. Consider asking MBI to fund an Owner’s Project Manager hired by and responsible each town or group of towns to provide advice and consultation during the construction phase of the project. This is a long shot, but towns should consider doing this on their own if MBI doesn’t.
- Towns should be held harmless from any claims arising from and related to the construction of the network.
- There should be something in the agreement to insure that MBI keeps to a schedule and does not delay any town’s progress.
- MBI should take out a Performance Bond that specifies quality and time line.
- The Last Mile Policy calls for towns to be responsible for any construction overruns. This is a problem because towns have no budget for this and would have to go back to the voters. The project should be managed in a way that there will be no overruns or else the State should be responsible.
These are all points to consider and review with your town officials, Town Counsel, and Financial Advisors. The exact terms and wording will need to be worked out. If any of these points are important to your town’s plans, let Peter Larkin, Bill Ennen, and your MBI program manager know.