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HomeMy WebLinkAbout14019RESOLUTION NO. 14019 A RESOLUTION APPROVING AN AGREEMENT FOR PROFESSIONAL SERVICES NOT TO EXCEED $43,000 BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND SLATE COMMUNICATIONS, A COLORADO LIMITED LIABILITY COMPANY AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAID AGREEMENT BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. rd The Agreement for professional services dated July 23, 2018, between Pueblo, a Municipal Corporation and Slate Communications, a Colorado limited liability company, a copy of which is attached Hereto (” Agreement”) have been approved as to form by the city attorney is hereby approved. The President of the City Council is authorized to execute and deliver the Agreement in the name of the City and the Acting City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 2. The officers and staff of the City are directed and authorized to perform all acts consistent with the intent of this Resolution to effectuate the policies and procedures described herein. SECTION 3. This Resolution shall become effective upon passage and approval. INTRODUCED July 23, 2018 BY: Ed Brown MEMBER OF CITY COUNCIL APPROVED: PRESIDENT OF CITY COUNCIL ATTESTED BY: ACTING CITY CLERK City Clerk’s Office Item # Q-1 Background Paper for Proposed RESOLUTION COUNCIL MEETING DATE: July 23, 2018 TO: Council President Christopher A. Nicoll and Members of City Council CC: Sam Azad, City Manager VIA: Brenda Armijo, Acting City Clerk FROM: John Vigil, Assistant City Manager SUBJECT: A RESOLUTION APPROVING AN AGREEMENT FOR PROFESSIONAL SERVICES NOT TO EXCEED $43,000 BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND SLATE COMMUNICATIONS, A COLORADO LIMITED LIABILITY COMPANY AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAID AGREEMENT SUMMARY: Attached is a Resolution approving an agreement for professional services to develop and execute a communication plan supporting the evaluation of alternatives to an investor owned utility provider. PREVIOUS COUNCIL ACTION: Passed Resolution No. 13790 on September 25, 2017. BACKGROUND: On September 25, 2017, by Resolution No. 13790, the Pueblo City Council declared the City of Pueblo’s intent to terminate its Franchise Agreement with Black Hills on August 11, 2020, and to create a municipal utility, if a due diligence feasibility study showed that municipalization was an economically viable option. FINANCIAL IMPLICATIONS: $43,000 BOARD/COMMISSION RECOMMENDATION: The Electric Utility Commission recommends accepting the agreement. STAKEHOLDER PROCESS: The agreement was offered after Slate Communications was selected via an RFQ. ALTERNATIVES: If City Council does not approve this ordinance, A Public relations firm will not be engaged to support exploring options other than an Investor owned utility. RECOMMENDATION: Staff recommends approval of this resolution. Attachments: Attached is a sample of the agreement cost estimate, and rate sheet. AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT is made and entered this 23rd day of July,2018, by and between the City of Pueblo,a Colorado Municipal Corporation(hereinafter referred to as"Client")and Slate Communications, a Colorado Limited Liability Company (hereinafter referred to as "Consultant") for Consultant to render professional services for Client with respect to Project 18-054 Request for Qualifications for a Public Relations Firm for Municipalization of Utility Services and related ancillary services, hereinafter referred to as the"Project." In consideration of the mutual covenants hereinafter set forth,the parties agree as follows: SECTION 1. GENERAL AND SCOPE OF SERVICES (a) Consultant shall satisfactorily perform the professional consulting services for the Project described in more detail in Schedule I attached hereto and incorporated herein by reference (the "Basic Services"). Such services shall include all usual and customary professional consulting services in connection with its work on the Project. In the event this Agreement follows the selection of Consultant by Client pursuant to a Request for Qualifications(RFQ)all of the requirements of that RFQ are incorporated herein by reference, unless any requirement is expressly excluded in Schedule 1. (b) To the extent Consultant performs any of the Project work through subcontractors or subconsultants,Consultant shall be and remain as fully responsible for the full performance and quality of services performed by such subcontractors or subconsultants as it is for services performed directly by Consultant or Consultant's employees. SECTION 2. CONSULTANT'S RESPONSIBILITIES (a) Consultant shall be responsible for the professional quality,technical accuracy and timely completion of Consultant's work, including that performed by Consultant's subconsultants and subcontractors, and including reports and other services, notwithstanding Client's initial acceptance of same. (b) Consultant shall be responsible, in accordance with applicable law,to Client for all loss or damage to Client caused by Consultant's negligent act or omission; and Consultant hereby irrevocably waives and excuses Client and Client's attorneys from compliance with any requirement to obtain a certificate of review as a condition precedent to commencement of an action, including any such requirements set forth in Section 13-20-602, C.R.S. or similar statute, whether now existing or hereafter enacted. (c) Consultant acknowledges that time is of the essence with respect to the completion of its services under this Agreement. Consultant represents that Schedule 1 attached hereto is the schedule by which Consultant proposes to accomplish its work, with time periods for which it will commence and complete each major work item. Except to the extent the parties agree to time extensions for delays beyond the control of Consultant,Consultant shall adhere to this schedule and perform its work in a timely manner so as not to delay Client's timetable for achievement of interim tasks and final completion of Project work. Consultant further acknowledges that its schedule has accounted for all reasonably anticipated delays, Consultant—General—CA 04-18 Page 1 of 8 including those inherent in the availability of labor and equipment required for the work,the availability of information which must be obtained from any third parties,and all conditions to access to public and private facilities. (d) Before undertaking any work or incurring any expense which Consultant considers beyond or in addition to the Scope of Work described in Schedule 1 or otherwise contemplated by the terms of this Agreement, Consultant shall advise Client in writing that (i) Consultant considers the work beyond the scope of this Agreement,(ii)the reasons that Consultant believes the out of scope or additional work should be performed, and (iii) a reasonable estimate of the cost of such work. Consultant shall not proceed with any out of scope or additional work until authorized in writing by Client. The compensation for such authorized work shall be negotiated,but in the event the parties fail to negotiate or are unable to agree as to compensation,then Consultant shall be compensated for its direct costs and professional time at the rates set forth in Schedule 2 attached hereto. SECTION 3. FEES FOR SERVICES;PAYMENT (a) Client will pay to Consultant as full compensation for all services required to be performed by Consultant under this Agreement, except for services for additional work or work beyond the scope of this Agreement, a not to exceed amount of U.S. $43,000.00 to complete Phase 1 — 3 of the project, computed as set forth in Schedule 1 and Schedule 2. Any cost for additional work beyond the initial scope of this Agreement must be negotiated and agreed upon by both parties. Additional work shall require an amendment to this agreement. (b) Consultant shall submit periodic, but not more frequently than monthly, applications for payment, aggregating to not more than the maximum amount set forth above, for actual professional services rendered and for reimbursable expenses incurred. Applications for payment shall be submitted based upon the hourly rates and expense reimbursement provisions set forth in Schedule 2,attached hereto, and shall contain appropriate documentation that such services have been performed and such expenses incurred. Thereafter, Client shall pay Consultant for the amount of the application within 45 days of the date such application is received. (c) No separate or additional payment shall be made for profit, overhead, local telephone expenses, lodging, routine photocopying, computer time, secretarial or clerical time or similar expenses unless otherwise provided and listed in Schedule 2. (d) No compensation shall be paid to Consultant for services required and expenditures incurred in correcting Consultant's mistakes or negligence. (e) In the event services under this Agreement are phased and to be performed in more than one fiscal year or are subject to annual appropriation, Consultant acknowledges that funds only in the amount of initial appropriation are available and it shall confirm availability of funds before proceeding with work exceeding initial and subsequent annual appropriations. Consultant—General—CA 04-18 Page 2 of 8 SECTION 4. CLIENT'S RESPONSIBILITIES (a) Client agrees to advise Consultant regarding Client's Project requirements and to provide all relevant information, data and previous reports accessible to Client which Consultant may reasonably require. (b) Client shall designate a Project Representative to whom all communications from Consultant shall be directed and who shall have limited administrative authority on behalf of Client to receive and transmit information and make decisions with respect to the Project. Said representative shall not, however, have authority to bind Client as to matters of governmental policy or fiscal policy, nor to contract for additions or obligations exceeding a value which is the lesser of$5,000.00 or 5% of the maximum contract price. (c) Client shall examine all documents presented by Consultant, and render decisions pertaining thereto within a reasonable time. The Client's approval of any reports, documents or other materials or product furnished hereunder shall not in any way relieve Consultant of responsibility for the professional adequacy of its work. (d) Client shall perform its obligations and render decisions within a reasonable time under the circumstances presented. Based upon the nature of Client and its requirements, a period of 14 days shall be presumed reasonable for any decision not involving policy decision or significant financial impact,when all information reasonably necessary for Client to responsibly render a decision has been furnished. A period of 46 days shall be presumed reasonable for Client to act with respect to any matter involving policy or significant financial impact. The above periods of presumed reasonableness shall be extended where information reasonably required is not within the custody or control of Client but must be procured from others. SECTION 5. TERM AND TERMINATION (a) Term. The term of this Agreement begins on the Effective Date and ends on December 31,2019,unless sooner terminated in accordance with this Agreement. City reserves the right to extend the term of this Agreement in one-year increments by written acceptance of both parties. (b) Fund Appropriation. This agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor be deemed to constitute,the creation of a debt or multi-year fiscal obligation or an obligation of future appropriations by the City Council of Pueblo, contrary to Article X, §20 of the Colorado Constitution or any other constitutional,statutory or charter debt limitation. Notwithstanding any other provision of this agreement,with respect to any financial obligation of City which may arise under this agreement in any fiscal year after the current year,in the event the budget or other means of appropriations for any such year fails to provide funds in sufficient amounts to discharge such obligation,such failure shall not constitute a default by or breach of this agreement. The termination of this Agreement due to lack of funding shall be without penalty to the City. (c) Client reserves the right to terminate this Agreement and Consultant's performance hereunder, at any time upon written notice, either for cause or for convenience. Upon such termination, Consultant and its subcontractors shall cease all work and stop incurring expenses, and shall promptly deliver to Client all data,reports,plans,calculations,summaries and all other information,documents,work Consultant—General—CA 04-18 Page 3 of 8 product and materials as Consultant may have accumulated in performing this Agreement,together with all finished work and work in progress. (d) Upon termination of this Agreement for events or reasons not the fault of Consultant, Consultant shall be paid at the rates specified in Schedule 2 for all services rendered and reasonable costs incurred to date of termination; together with any reasonable costs incurred within 10 days of termination provided such latter costs could not be avoided or were incurred in mitigating loss or expenses to Consultant or Client. In no event shall payment to Consultant upon termination exceed the maximum compensation provided for complete performance in Section 3(a). (e) In the event termination of this Agreement or Consultant's services is for breach of this Agreement by Consultant,or for other fault of Consultant including but not limited to any failure to timely proceed with work, or to pay its employees and consultants, or to perform work according to the highest professional standards, or to perform work in a manner deemed satisfactory by Client's Project Representative, then in that event, Consultant's entire right to compensation shall be limited to the lesser of(a)the reasonable value of completed work to Client or(b)payment at the rates specified in Schedule 2 for services satisfactorily performed and reimbursable expenses reasonably incurred, prior to date of termination. (0 Consultant's professional responsibility for its completed work and services shall survive any termination. SECTION 6. USE OF DOCUMENTS Data, plans, reports and all other documents prepared or provided by Consultant hereunder shall become the sole property of Client, subject to applicable federal grant requirements, and Client shall be vested with all rights therein of whatever kind or nature and however created, whether by common law, statute or equity. Client shall have access at all reasonable times to inspect and make copies of all notes, plans, reports and all other data or other documents pertaining to the work to be performed under this Agreement. In no event shall Consultant publish work product developed pursuant to this Agreement except (i) with advance written consent of Client, which consent may be granted or withheld in Client's sole and absolute discretion and (ii) in full compliance with the requirements of this Agreement and applicable federal regulations. SECTION 7. INSURANCE AND INDEMNITY (a) Consultant agrees that it shall procure and will maintain during the term of this Agreement, such insurance as will protect it from claims under workers'compensation acts,claims for damages because of personal injury including bodily injury, sickness or disease or death of any of its employees or of any person other than its employees,and from claims or damages because of injury to or destruction of property including loss of use resulting therefrom. (b) Consultant agrees to hold harmless, defend and indemnify Client from and against any liability to third parties, arising out of negligent acts or omissions of Consultant, its employees, subcontractors and consultants. Consultant—General—CA 04-18 Page 4 of 8 SECTION 8. SUBCONTRACTS (a) Client acknowledges that Consultant is the prime contractor and the only party with whom Client has a contractual relationship under this Agreement. To the extent Consultant performs any Project activities through subconsultants or subcontractors, Consultant shall contractually bind each of its subconsultants and subcontractors by subcontract agreement to all of the terms of this Agreement which are for the benefit of Client,and Client shall be a third party beneficiary of those subcontract provisions. (b) Consultant shall indemnify and defend Client from all claims and demands for payment for services provided by subcontractors of Consultant. (c) Consultant acknowledges that,due to the nature of the services to be provided under this Agreement,the Client has a substantial interest in the personnel and consultants to whom Consultant assigns principal responsibility for services performed under this Agreement. Consequently,Consultant represents that it has selected and intends to employ or assign the key personnel and consultants identified in its proposal submitted to Client prior to execution of this Agreement to induce Client to enter this Agreement. Consultant shall not change such consultants or key personnel except after giving notice of a proposed change to Client and receiving Client's written consent thereto. Consultant shall not assign or reassign Project work to any person to whom Client has reasonable objection. SECTION 9. MISCELLANEOUS (a) Notices. Any and all notices or other communications required or permitted by this Agreement or by law to be served on or given to either Consultant or Client by the other party shall be in writing and shall be deemed duly served and given when personally delivered to the party to whom it is directed, or in lieu of such personal service, when deposited in the United States mail, first-class postage prepaid, addressed to the Client, City of Pueblo, Attn: Naomi Hedden, Purchasing Director, 230 S. Mechanic,Pueblo,CO 81003 or to Consultant at Slate Communications,Attn:Kimberly Newcomer,CEO, 2301 Research Blvd., #204, Ft. Collins, CO 80526. Either party may change his address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. (b) Entire Agreement. This instrument contains the entire agreement between Consultant and Client respecting the Project, and any other written or oral agreement or representation respecting the Project or the duties of either Client or Consultant in relation thereto not expressly set forth in this instrument and its attachments is null and void. In the case of any conflict between the terms of this Agreement for Professional Services and terms of Schedule 1 or any other attachment hereto,the terms of this Agreement shall govern. (c) Successors and Assigns. This Agreement shall be binding on the parties hereto and on their successors and assigns; provided, however, neither this Agreement, nor any part thereof, nor any moneys due or to become due hereunder to Consultant may be assigned by it without the written consent of Client, which consent may be withheld in Client's sole and absolute discretion. Any assignment or attempted assignment in violation of this subsection shall be void. (d) Amendments. No amendment to this Agreement shall be made nor be enforceable unless made by written amendment signed by an authorized representative of Consultant and by Client in Consultant—General—CA 04-18 Page 5 of 8 accordance with the requirements of Section 4(b) of this Agreement or upon authorization of Client's governing board. (e) Choice of Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of Colorado. (f) Litigation. In the event of any litigation arising under this Agreement, the court shall award to, and the prevailing party shall recover its costs together with all internal and out-of-pocket expenses of any kind relating to the litigation including,but not limited to,reasonable attorney fees. Venue for any such litigation shall be Pueblo County, Colorado. All such litigation shall be filed in the District Court,County of Pueblo,State of Colorado and each party submits to the jurisdiction of such District Court. To the full extent allowed by law,each party waives its right to a jury trial. (g) Equal Employment Opportunity. In connection with the performance of this Agreement, neither Consultant nor its consultants shall discriminate against any employee or applicant for employment because of race,color, religion, sex,national origin, disability, gender orientation or age. Consultant shall endeavor to ensure that its employees are treated during employment without regard to their race, color, religion,sex,national origin,disability, gender orientation or age. (h) Severability. If any provision of this Agreement,except for Section 2, is determined to be directly contrary to and prohibited by law,then such provision shall be deemed void and the remainder of the Agreement enforced. However, it is the intent of the parties that Section 2 of this Agreement not be severable, and that if any provision of said section be determined to be contrary to law, then this entire Agreement shall be void. SECTION 10. STATE-IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS FROM PERFORMING WORK (a) At or prior to the time for execution of this Agreement (which may be referred to in this section as this "Contract"), Consultant (which may be referred to in this section as "Contractor") shall submit to the Purchasing Agent of City its certification that it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and that the Contractor will participate in either the "E-Verify Program" created in Public Law 208, 104th Congress, as amended and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security or the"Department Program"established pursuant to§8-17.5-102(5)(c)C.R.S.that is administered by the Colorado Department of Labor and Employment in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Contract. (b) Contractor shall not: (I) Knowingly employ or contract with an illegal alien to perform work under this contract; (II) Enter into a contract with a subconsultant that fails to certify to Contractor that the subconsultant shall not knowingly employ or contract with an illegal alien to perform work under this Contract. Consultant—General—CA 04-18 Page 6 of 8 (c) The following state-imposed requirements apply to this contract: (I) The Contractor shall have confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in either the E-Verify Program or Department Program. (II) The Contractor is prohibited from using either the E-Verify Program or Department Program procedures to undertake pre-employment screening of job applicants while this Contract is being performed. (III) If the Contractor obtains actual knowledge that a subcontractor or subconsultant performing work under this Contract knowingly employs or contracts with an illegal alien, the Contractor shall be required to: A. Notify the subconsultant and the Client's Purchasing Agent within three (3) days that the Contractor has actual knowledge that the subcontractor/subconsultant is employing or contracting with an illegal alien;and B. Terminate the subcontract with the subcontractor/subconsultant if within three (3)days of receiving the notice required pursuant to subparagraph (c)(III)A. above the subcontractor/subconsultant does not stop employing or contracting with the illegal alien; except that the Contractor shall not terminate the contract with the subcontractor/subconsultant if,during such three(3)days,the subcontractor/subconsultant provides information to establish that the subcontractor/subconsultant has not knowingly employed or contracted with an illegal alien. (IV) The Contractor is required to comply with any reasonable request by the Colorado Department of Labor and Employment(hereinafter referred to as"CDLE")made in the course of an investigation that CDLE is undertaking pursuant to its authority under§8-17.5-102(5),C.R.S. (d) Violation of this Section 12 by the Contractor shall constitute a breach of contract and grounds for termination. In the event of such termination, the Contractor shall be liable for Client's actual and consequential damages. (e) As used in this Section 12,the terms"subcontractor"and"subconsultant" shall mean any subconsultant or subcontractor of Consultant rendering services within the scope of this Agreement. SECTION 13. PERA LIABILITY Consultant shall reimburse the City for the full amount of any employer contribution required to be paid by the City of Pueblo to the Public Employees' Retirement Association("PERA")for salary or other compensation paid to a PERA retiree performing contracted services for the City under this Agreement. The Consultant shall fill out the questionnaire attached as Attachment B and submit the completed form to Client as part of the signed Agreement. (Signature section follows on next page) Consultant—General—CA 04-18 Page 7 of 8 IN WITNESS WHEREOF,the parties hereto have made and executed this Agreement as of the day and year first above written. ATTEST: CITY OF PUEBLO,A MUNICIPAL CORPORATION ALnct& 1AA 4 ' Ad Athi City Clerk P!ent of the City Council SLATE, •MMUNIC• ONS, A COLORADO LIMITED LIABILITY COMPANY Bye 1 / / �L/ ,J Prin e s Name: /IV/l/z ( `7' Title: (Signer must be authorized to contractually bind Slate Communications,LLC) BALANCE OF APPROPRIATION EXISTS FOR THIS CONTRACT AND FUNDS ARE AVAILABLE. Director of Finance APPROVED AS TO FORM: • 1 ‹.-7_01.1 .42-i.c City Attorney Consultant—General—CA 04-18 Page 8 of 8