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HomeMy WebLinkAbout10169ORDINANCE NO. 10169 AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND CO CREATE LLC, A COLORADO LIMITED LIABILITY COMPANY TO (1) DEVELOP A PRIVATE/PUBLIC SECTOR INVESTMENT STRATEGY AND AN ACTION PLAN FOR DELIVERY OF BROADBAND SERVICES TO QUALIFIED CENSUS TRACTS IN THE CITY OF PUEBLO AND (2) PRESENT THE MAYOR AND CITY COUNCIL WITH PROJECTS/AGREEMENTS WITH CURRENT OR NEW INTERNET PROVIDERS IN CONNECTION THEREWITH AND FURTHER AUTHORIZING THE PAYMENT OF ONE HUNDRED THOUSAND DOLLARS ($100,000) FROM PROJECT NO. CI-2113 - AMERICAN RESCUE PLAN ACT, FOR PURPOSES THEREOF BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement for Professional Services (“Agreement”) between the City of Pueblo, a Colorado municipal corporation and Co Create LLC, a Colorado limited liability company, dated May 9, 2022, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. The Mayor is authorized to execute and deliver said Agreement in the name of the City and the City Clerk is authorized to affix the seal of the City thereto and attest same. SECTION 2. The officers and staff of the City are authorized to perform any and all acts consistent with this Ordinance and the attached Agreement to implement the policies and procedures described therein. SECTION 3. This Ordinance shall become effective immediately upon final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on April 25, 2022 . Final adoption of Ordinance by City Council on May 9, 2022 . President of City Council Action by the Mayor: ☒ Approved on May 11, 2022 . □ Disapproved on based on the following objections: _ Mayor Action by City Council After Disapproval by the Mayor: □ Council did not act to override the Mayor's veto. □ Ordinance re-adopted on a vote of , on □ Council action on _______ failed to override the Mayor’s veto. President of City Council ATTEST City Clerk City Clerk’s Office Item # R-2 BACKGROUND PAPER FOR PROPOSED ORDINANCE COUNCIL MEETING DATE: April 25, 2022 TO: President Heather Graham and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Marisa Stoller, City Clerk FROM: Daniel C. Kogovsek, City Attorney SUBJECT: AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND CO CREATE LLC, A COLORADO LIMITED LIABILITY COMPANY TO (1) DEVELOP A PRIVATE/PUBLIC SECTOR INVESTMENT STRATEGY AND AN ACTION PLAN FOR DELIVERY OF BROADBAND SERVICES TO QUALIFIED CENSUS TRACTS IN THE CITY OF PUEBLO AND (2) PRESENT THE MAYOR AND CITY COUNCIL WITH PROJECTS/AGREEMENTS WITH CURRENT OR NEW INTERNET PROVIDERS IN CONNECTION THEREWITH AND FURTHER AUTHORIZING THE PAYMENT OF ONE HUNDRED THOUSAND DOLLARS ($100,000) FROM PROJECT NO. CI-2113 - AMERICAN RESCUE PLAN ACT, FOR PURPOSES THEREOF SUMMARY: The attached ordinance approves and authorizes the Mayor to sign a consulting agreement with Co Create LLC (“Co Create”) to (1) prepare a public/private investment strategy and action plan for delivery of broadband services to Qualified Census Tracts (“QCT’s”) in the City, and (2) present the Mayor and City Council with projects/agreements in connection therewith. The proposed ordinance also authorizes payment of up to $100,000.00 to Co Create for its professional services from Project No. CI-2113 – American Rescue Plan Act (“ARPA”). PREVIOUS COUNCIL ACTION: Not applicable to this ordinance. BACKGROUND: Broadband services in Pueblo are inadequate at best and in some locations are non-existent – especially in the City’s low income neighborhoods. One of the four pillars of ARPA is to provide the necessary financial resources for the delivery of broadband services to unserved and underserved areas. Technical expertise is needed to develop broadband infrastructure in the City’s QCT’s. Co Create has the necessary expertise to develop and begin implementation of the City’s broadband strategy to serve all City neighborhoods. FINANCIAL IMPLICATIONS: $100,000 in ARPA funds are being authorized for payment to Co Create. BOARD/COMMISSION RECOMMENDATION: Not applicable to this ordinance. STAKEHOLDER PROCESS: Not applicable to this ordinance. ALTERNATIVES: If City Council does not approve this Ordinance, Co Create will not be retained. RECOMMENDATION: Approval of the Ordinance. Attachments: Proposed Ordinance Proposed Agreement for Professional Services. AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT ("Agreement") is made and entered this 9th day of May, 2022, by and between the City of Pueblo, a Colorado Municipal Corporation (hereinafter referred to as "Client")and Co Create LLC, a Colorado limited liability company(hereinafter referred to as "Consultant"). Client and Consultant are sometimes each referred to as a "Party" and collectively"Parties." Consultant shall render professional services for Client with respect to Project#CI-2113, Project Name:American Rescue Plan Act 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 1 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. (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 shall be completely responsible for the safety of Consultant's employees in the execution of work under this Agreement and shall provide all necessary safety and protective equipment for said employees. (d) Consultant acknowledges that time is of the essence with respect to the completion of its services under this Agreement. Consultant represents that Schedule 3 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 1 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, 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. (e) 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, the maximum sum of U.S. $100,000.00, computed as set forth in Schedule 2. (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. 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) Compensation for authorized work beyond the scope of this Agreement shall be governed by the provisions of Section 2(e) of this Agreement. (f) In the event services under this Agreement are phased and to be performed in more than one fiscal year, the Parties agree payments under this Agreement are subject to annual appropriations. Consultant acknowledges that funds only in the amount of initial 2 appropriation of$100,000.00 are available and it shall confirm availability of funds before proceeding with work exceeding initial and subsequent annual appropriations. 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 7 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 30 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, 2023, 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 3 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 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. (f) 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. INDEMNITY. Consultant agrees to hold harmless, defend and indemnify Client from and against any 4 liability to third parties, arising out of negligent acts or omissions of Consultant, its employees, subcontractors and consultants. 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. REQUIRED FEDERAL PROVISIONS. (a) Consultant understands that Client shall be funding the Project with funds as authorized by Section 603(c)(1)(A) of the American Rescue Plan Act ("ARPA") and U.S. Treasury Final Rule 31 CFR 35.6. Consultant agrees it is subject to and shall comply with all applicable provisions of ARPA under which the contract award has been made, and applicable regulations. (b) Consultant shall comply with all applicable Federal, State, and local laws applicable to its activities. (c) All records with respect to any matters covered by this Agreement shall be available for inspection by Client, at any time during normal business hours and as often as Client deems necessary, to audit, examine and make excerpts or transcripts of relevant information, and otherwise to perform its official functions or duties. SECTION 10. MISCELLANEOUS. (a) Notices. Any notice required or permitted to be given or delivered under this Agreement shall be in writing and shall be given by personal delivery, or by the United States Postal Service, by registered or certified mail, postage prepaid, or reputable national overnight courier service: 5 (a) If to Client, addressed to: Mayor City of Pueblo 1 City Hall Place, 2nd Floor Pueblo, Colorado 81003 with a copy to: City Attorney 1 City Hall Place, 3rd Floor Pueblo, Colorado 81003 (b) If to Consultant, addressed to: Salvador J. Acuna 1519 Kickapoo Rd. Pueblo, CO 81001 or to such other address or person as any party may from time to time specify in a writing delivered to the other party in the manner provided in this paragraph. Any notice shall be deemed delivered on the day on which personal delivery is effected or three (3) days after deposit in the mail in the case of registered or certified mail, and one (1) business day after deposit in the case of overnight courier. (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 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) Equal Employment Opportunity. In connection with the performance of this 6 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 identity, sexual orientation or age. Consultant shall endeavor to insure that its employees are treated during employment without regard to their race, color, religion, sex, national origin, disability, gender identification, sexual orientation or age. (g) Severability. If any provision of this Agreement, except for Section 2, is determined to be directly contrary to and prohibited by law or the requirements of any federal grant or other Project funding source, 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 or the terms of any federal grant, then this entire Agreement shall be void. (h) Litigation, Venue and Waiver of Trial by Jury. In the event of any litigation arising under this Agreement, the court shall award to the prevailing Party its costs and reasonable attorney fees. Exclusive 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 personal and subject matter jurisdiction of such District Court. To the fullest extent permitted by law, the Parties hereby waive their right to a trial by jury. (i) 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 Exhibit A and submit the completed form to Client as part of the signed Agreement. (j) Counterparts. This Agreement may be executed in two (2) or more counterparts and each such counterpart shall be deemed for all purposes to be an original and all such counterparts shall together constitute but one and the same original. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as of the day and year first above written. CITY OF PUEBLO, A MUNICIPAL CORPORATION CONSULTANT FIRM NAME By Pt ayor Attest: S� City C [ SEAL ] 7 BALANCE OF APPROPRIATION EXISTS FOR THIS CONTRACT AND FUNDS ARE AVAILABLE. 41/Ze2Jrze-/ Director of Finance APPROVED AS TO FORM: >atMotA)- . <71/44(-<" City Attorney Consultant CO CREATE LLC a Colorado limited liability company (Sign. r-- m u.c - (Pant name) (1L.'Q —I o14d r (Print title) 8 Schedule 1 Scope of Services A. Performance Monitoring: The City will monitor the performance of the Consultant according to the Principal Tasks set forth herein. Substandard performance shall mean non-compliance with this Agreement. If actions to correct such substandard performance are not taken by the Consultant within a reasonable period of time after being so notified by the City, contract suspension or termination procedures may be initiated, in the sole discretion of the City. B. Principal Tasks 1. Develop a private / public investment strategy and a detailed action plan to deliver high-speed broadband services to Qualified Census Tracts in the City of Pueblo. 2. Present the Mayor and City Council with projects/agreements with current or new internet providers for delivery of high-speed broadband services to Qualified Census Tracts in the City of Pueblo. 9 Schedule 2 Payments To Consultant Consultant standard rate of$250.00 per hour shall be discounted to $175.00. Service Hourly @ Total Total Hours Public Private Model Design $175.00 @ 229 $40,075.00 Develop Projects/Agreements with current or $175.00 @ 285 $49,875.00 new internet providers to deliver high speed broadband services to the City's QCT's Travel $10,500.00 Totals $100,000.00 10 Schedule 3 Project Timeline & Deliverables Project Task Dates Public / Private Model Design 05-09-22 to 09-30-22 Develop Projects/Agreements with current or new Internet providers to deliver high speed broadband 10-01-22 to 12-31-23 services to the City's QCT's 11 Exhibit A COLORADO PUBLIC EMPLOYEES RETIREMENT ASSOCIATION SUPPLEMENTAL QUESTIONNAIRE TO BE ANSWERED BY ANY BUSINESS PERFORMING SERVICES FOR THE CITY OF PUEBLO Pursuant to section 24-51-1101(2), C.R.S., salary or other compensation from the employment, engagement, retention or other use of a person receiving retirement benefits(Retiree)through the Colorado Public Employees Retirement Association (PERA) in an individual capacity or of any entity owned or operated by a PERA Retiree or an affiliated party by the City of Pueblo to perform any service as an employee, contract employee,consultant, independent contractor, or through other arrangements, is subject to employer contributions to PERA by the City of Pueblo. Therefore, as a condition of contracting for services with the City of Pueblo, this document must be completed, signed and returned to the City of Pueblo: (a) Are you, or do you employ or engage in any capacity, including an independent contractor, a PERA Retiree who will perform any services for the City of Pueblo? Yes X, No_. (Must sign below whether you answer"yes"or"no".) (b) If you answered "yes" to (a) above, please answer the following question: Are you 1) an individual, 2) sole proprietor or partnership, or 3) a business or company owned or operated by a PERA Retiree or an affiliated party? Yes , No A. If you answered "yes" please state which of the above listed entities (1, 2, or 3) best describes your business: (c) If you answered "yes"to both (a) and (b), please provide the name, address and social security number of each such PERA Retiree. Name Name Address Address Social Security Number Social Security Number (If more than two, please attach a supplemental list) If you answered "yes"to both (a) and (b), you agree to reimburse the City of Pueblo for any employer contribution required to be paid by the City of Pueblo to PERA for salary or other compensation paid to you as a PERA Retiree or paid to any employee or independent contractor of yours who is a PERA Retiree performing services for the City of Pueblo. You further authorize the City of Pueblo to deduct and withhold all such contributions from any moneys due or payable to you by the City of Pueblo under any current or future contract or other arrangement for services between you and the City of Pueblo. Failure to accurately complete,sign and return this document to the City of Pueblo may result in your being denied the privile•;•f doing business with the City of Pueblo. 1111. Signed _�1'r , 20 2 2- aot 026 By: ), /r T /j t Name: Title: Ni•Yr4geu .La 6F-Pe Exhibit A For purposes of responding to question (b) above, an "affiliated party" includes (1) any person who is the named beneficiary or cobeneficiary on the PERA account of the PERA Retiree; (2)any person who is a relative of the PERA Retiree by blood or adoption to and including parents, siblings, half-siblings, children, and grandchildren; (3) any person who is a relative of the PERA Retiree by marriage to and including spouse, spouse's parents, stepparents,stepchildren,stepsiblings, and spouse's siblings; and (4)any person or entity with whom the PERA Retiree has an Agreement to share or otherwise profit from the performance of services for the City of Pueblo by the PERA Retiree other than the PERA Retiree's regular salary or compensation. 13