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HomeMy WebLinkAbout24-53 Approving a Professional Services Agreement between the Town and Ditesco LLC re Broadband Right of Way 05-09-2024RESOLUTION IN Z4-53 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO APPROVING A PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FIRESTONE AND DITESCO LLC REGARDING THE BROADBAND RIGHT-OF-WAY PROJECT. WHEREAS, the Town of Firestone ("Town") desires to enter into a Professional Services Agreement with Ditesco LLC ("Ditesco") for right-of-way inspection and build out support services for the Town's Broadband Right -of -Way Project ("Project"); and WHEREAS, because Ditesco has recently provided services for the Town regarding other local broadband projects it's familiar with the Town's processes and procedures and uniquely qualified to provide the right-of-way inspection and build out support services for the current Project; and WHEREAS, it is thus in the Town's best interest that Ditesco be selected as a sole source provider to perform the required services for the Project. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: The Professional Services Agreement between the Town of Firestone and Ditesco LLC for right -of --way inspection and build out support for the Town's Broadband Right -of --Way Project is approved in substantially the same form as the copy attached hereto and made a part of this resolution and the Mayor is authorized to execute the Agreement on behalf of the Town. INTRODUCED, READ AND ADOPTED this rSAday of May, 2024. A' Gonzalez, Interim Town Clerk William Don ., Mayor ,COLORADO HIS AGREEMENT FOR PROFESSIONAL SERVICES (the "Agreement") is made and entered into this __. day of Oau , 2024 (the "Effective Date"), by and between the TOWN OF FIRESTONE, a Colorado municipal poration with an address of 9950 Park Avenue, Firestone, Colorado 80504 (the "Town"), and DITESCO an independent Consultant with a principal place of business at 2133 S. Timberline Road, Unit 110, Fort Collins, Colorado 80525 ("Consultant ") (each a "Party" and collectively the "Parties"). WHEREAS, the Town requires professional services and WHEREAS, Consultant has held itself out to the Town as having the requisite expertise and experience to perform the required professional services. NOW, THEREFORE, for the consideration hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: I. SCOPE OF SERVICES A. Consultant shall famish all labor and materials required for the complete and prompt execution and performance of all duties, obligations, and responsibilities which are described or reasonably implied from the Scope of Services set forth in Exhibit A, attached hereto and incorporated herein by this reference and known as: Broadband Right•of-Way Project (S2024-9244). B. A change in the Scope of Services shall not be effective unless authorized as a modification to this Agreement. If the Consultant proceeds without such written authorization, Consultant shall be deemed to have waived any claim for additional compensation, including a claim based on the theory of unjust enrichment, quantum merit or implied contract. Except as expressly provided herein, no agent, employee, or representative of the Town is authorized to modify any term of this Agreement, either directly or implied by a course of action. A. This Agreement shall commence on the Effective Date and shall continue until Consultant completes the Scope of Services to the satisfaction of the Town or until terminated as provided herein. B. Either Party may terminate this Agreement upon 30 days advance written notice. The Town shall pay the Consultant for all work previously authorized and completed prior to the date of termination. If, however, Consultant has substantially or materially breached this Agreement, the Town shall have any remedy or right of set-off available at law and equity. III. COMPENSATION In consideration for the completion of the Scope of Services by Consultant, the Town shall pay Consultant an amount not to exceed $303,379.00. This amount shall include all fees, casts and expenses incurred by Consultant, and no additional amounts shall be paid by the Town for such fees, costs, and expenses. Consultant may submit periodic invoices, which shall be paid by the Town within 30 days of receipt. IV. PROFESSIONAL RESPONSIBILITY A. Consultant hereby warrants that it is qualified to assume the responsibilities and render the services described herein and has all requisite corporate authority and professional licenses in good standing, required by law. The work performed by Consultant shall be in accordance with generally accepted professional practices and the level of competency presently maintained by other practicing professional firms in the same or similar type of work in the applicable community. The work and services to be performed by Consultant hereunder shall be done in compliance with applicable laws, ordinances, rules and regulations, including the preference for Colorado Labor set forth in C.R.S. Article 17 Title 8. B. The Town 's review, approval or acceptance of, or payment for any services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement. C. Because the Town has hired Consultant for its professional expertise, Consultant agrees not to employ Sub -Consultant s to perform any work except as expressly set forth in the Scope of Services. V, OWNERSHIP A. Any materials, items, and work specified in the Scope of Services, and any and all related documentation and materials provided or developed by Consultant shall be exclusively owned by the Town. Consultant expressly acknowledges and agrees that all work performed under the Scope of Services constitutes a "work made for hire" To the extent, if at all, that it does not constitute a "work made for hire," Consultant hereby transfers, sells, and assigns to the Town all of its right, title, and interest in such work. The Town may, with respect to all or any portion of such work, use, publish, display, reproduce, distribute, destroy, alter, retouch, modify, adapt, translate, or change such work without providing notice to or receiving consent from Consultant. B. If the Town reuses or makes any modification to Consultant 's designs, documents or work product without the prior written authorization of Consultant , the Town agrees, to the fullest extent permitted by law, to release the Consultant , its officers, directors, employees and sub -Consultant s from all claims and causes of action arising from such uses, and shall to the extent permitted by law indemnify and hold them harmless from all costs and expenses, including the cost of defense, related to claims and causes of action to the extent such costs and expenses arise from the Town 's modification or reuse of the documents. C. The Town expressly acknowledges and agrees that the documents and data to be provided by Consultant under the Agreement may contain certain design details, features and concepts from the Consultant's own practice detail library, which collectively may form portions of the design for the Project, but which separately, are, and shall remain, the sole and exclusive property of Consultant . Nothing herein shall be construed as a limitation on the Consultant's right to re -use such component design details, features and concepts on other projects, in other contexts or for other clients. VI. INDEPENDENTCONSULTANT Consultant is an independent Consultant. Notwithstanding any other provision of this Agreement, all personnel assigned by Consultant to perform work under the terms of this Agreement shall Page 2 of 5 FIRESTONE be, and remain at all times, employees or agents of Consultant for all purposes. Consultant shall make no representation that it is a Town employee for any purposes. VII. INSURANCE A. Consultant agrees to procure and maintain, at its own cost, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by Consultant pursuant to this Agreement. At a minimum, the Consultant shall procure and maintain, and shall cause any Sub -Consultant to procure and maintain, the insurance coverages listed below, with forms and insurers acceptable to the Town. 1. Worker's Compensation insurance as required by law. 2. Commercial General Liability insurance with minimum combined single limits of $1,000,000 each occurrence and $2,000,000 general aggregate. The policy shall be applicable to all premises and operations and shall include coverage for bodily injury, broad foram property damage, personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, and employees, Consultant as additional insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations. 3. Professional liability insurance with minimum limits of $1,000,000 each claim and $2,000,000 general aggregate. B. Such insurance shall be in addition to any other insurance requirements imposed by law. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least 30 days prior written notice to the Town. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Any insurance carried by the Town, its officers, and its employees Consultant shall be excess and not contributory insurance to that provided by Consultant. Consultant shall be solely responsible for any deductible losses under any policy. G. Consultant shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Agreement. VNI. INDEMNIFICATION A. Consultant agrees to indemnify and hold harmless the Town and its officers, insurers, volunteers, representative, agents, employees, heirs and assigns from and against all claims, liability, damages, losses, expenses and demands, including attorney fees, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Agreement if such injury, loss, or damage is caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, recklessness or other fault of Consultant , any Sub -Consultant of Consultant , or any officer, employee, representative, or agent of Consultant , or which arise out of a worker's compensation claim of any employee of Consultant or of any employee of any Sub -Consultant of Consultant . Consultant's liability under this indemnification provision shall be to the fullest extent of, but shall not exceed, that amount represented by the degree or percentage of negligence or fault attributable to Consultant, any Sub -Consultant of Consultant , or any officer, employee, representative, or agent of Consultant or of any Sub -Consultant of Consultant. i3. If Consultant is providing architectural, engineering, surveying or other design services under this Agreement, the extent of Consultant's obligation to indemnify and hold harmless the Town may be determined only after Consultant's liability or fault has been determined by adjudication, alternative dispute resolution or otherwise resolved by mutual Agreement between the Parties, as provided by C.R.S. § 13-50.5102(8)(c). fX.wmw CHANGE ORDERS A. Change Order is a written instrument issued after execution of the Agreement signed by Town and Consultant, stating their Agreement, as applicable, upon all of the following. 1. The scope of the change in the Work; 2. The amount of the adjustment to the Contract Price and 3. The extent of the adjustment to the Contract Times(s). B. All changes in the Work authorized by the applicable Change Order shall be performed under the applicable conditions of the Contract Documents. Town and Consultant shall negotiate in good faith and as expeditiously as possible the appropriate adjustment of such changes. X. MISCELLANEOUS A. Governing I_aw and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Weld County, Colorado. i3. No Waiver. Delays in enforcement or the waiver of any one or more defaults or breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms or obligations of this Agreement. C. Integration, This Agreement constitutes the entire Agreement between the Parties, superseding all prior oral or written communications. D. Third Parties. There are no intended third -party beneficiaries to this Agreement. E. Notice. Any notice under this Agreement shall be in writing and shall be deemed sufficient when personally presented or sent pre -paid, first class United States Mail to the Party at the address set forth on the first page of this Agreement. F. Severabili . If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect. G. Modification. This Agreement may only be modified upon written Agreement of the Parties. H. Assignment. Neither this Agreement nor any of the rights or obligations of the Parties shall be assigned by either Party without the written consent of the other. I. Governmental Immunity, The Town and its officers, and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities or protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-1Owl 01, et seq., as amended, or otherwise available to the Town and its officers, attorneys or employees. Page 4 of 5 FIRESTuHE J. Rights and Remedies. The rights and remedies of the Town under this Agreement are in addition to any other rights and remedies provided by law. The expiration of this Agreement shall in no way limit the Town's legal or equitable remedies, or the period in which such remedies may be asserted, for work negligently or defectively performed. K. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of the Town not performed during the current fiscal year is subject to annual appropriation, shall extend only to monies currently appropriated, and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. L. Representative Authority. Each person signing this Agreement represents and warrants that he or she is duly authorized and has the legal capacity to execute the Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. CONSULTANT By: Page 5 of 5 FIRESTONE 2133 S. Timberline Road, Suite 1l0 Fort Collins, CO 80525 Exhibit A ditescoservices.com Delivery by email to: mwiederspahnFirestoneCO.gov Aprii 10, 2024 Matt Wiederspahn, PE Town Engineer Town of Firestone 9950 Park Avenue Firestone, CO 80504 RE: Broadband Right -of -Way Inspection Dear Matt; Thank you for giving Ditesco the opportunity to assist the Town of Firestone an the Broadband Right -of --Way Inspection project. This scope of work proposal follows two meetings with the Town of Firestone to discuss and understand the desired scope of work. This proposal provides right-of-way inspection to support the build out of HyperFiber's broadband network. We appreciate the opportunity to continue our relationship with the Town of Firestone! One of Ditesca's care business principals is to provide successful delivery of infrastructure projects for our clients. Please let me know if you have any questions or require further information regarding this proposal, I can be reached by phone at titM28-0992 and email nathan. hoonle(r ditescoservices.com. Sincerely, Nathan Hoopla, PE, PMP Enc. scope of services Cc: Keith Meyer, PE —Principal file Page 10( 6 Design • • - of Services Proieot Understanding The Town of Firestone (Town) recently agreed to the installation of high-speed Broadband throughout the Town. In this effort, the Town agreed to allow HyperFiber access to the Right -of -Way (ROW) in order to complete this fully underground installation. HyperFiber plans to complete the installation of broadband infrastructure across the Town, over 12 months. This build -out will include approximately 10,000 passings. The Town has agreed to the use of the ROW, with the following exceptions: ® HyperFiber will confirm all Plats/ROW Compliance with each design submittal ® Design submittals will be provided to the Town for review with ROW Compliance ® HyperFiber will submit ROW permits by sector (288 passings or so). • HyperFiber will provide record drawings of all installed infrastructure as well as mapping of existing utilities based upon pothole data. HyperFiber anticipates beginning construction in spring 2024, with the total project build -out to be completed in 12 months, from construction start. Ditesco will act as a liaison and construction inspector for the Town of Firestone on a part-time basis. Our proposed scope of services will include HyperFiber design submittal review, initial project coordination, review of right-of-way work, tracking progress of construction with open ROW permits, inspection/verification of improvements, and punch ist/close-out of work within the ROW. Phase: Design • Ditesco staff will work with the Town to review and refine the existing GIS database that will allow tracking the status of ROW work and construction status on a real-time app-based system. It is anticipated the database is on the Town's GIS system and Ditesco staff will have access to that system throughout the design and construction phase. • Our team will work with Town staff to develop a notification process for construction inspection. This is anticipated to be an email inbox or hotline number that can be called by Contractors working within the ROW. • Ditesco has anticipated participation in weekly coordination meetings during the initial project start. For this effort we have anticipated six (3) meetings. Meetings are anticipated to be held in a combination of in - person and on Microsoft Teams. • Our team has allotted time for initial coordination meetings with HyperFiber to discuss process for construction. For this effort we have anticipated approximately five (5) 2-hour meetings, to be held in a combination of in -person and on Microsoft Teams, Phase: Construciian • Ditesco staff will participate in one {1) preconstruction meeting. This meeting is anticipated to be coordinated, managed and documented by HyperFiber and will discuss procedures for work within the ROW, inspections, quality testing, and coordination. • We will act as a liaison for Town staff and complete the review of ROW Permit Applications associated with this project. Our staff will review permit applications for conformance to construction standards within the Town of Firestone. Far this effort we have allotted three (2} hours per week. Page 2 of 6 • Our team will track open ROW permits. We will track open permits and verify completion of items, closing out open permits. For this effort we have anticipated two (2) hours per week. • Ditesco staff will complete weekly field work to verify compliance with ROW construction. Our team will respond to requests for ROW work inspection, inspect the ROW prior to completion of restoration, after restoration, photograph work progression throughout the Town, and track quality reports associated with each ROW work excavation. We will verify close-out of all items and notify the contractor of non -conforming items. We have anticipated five (5) days per week, over a 12-month period, for inspection work within the ROW at an average of 2 hours of site walks each day. • Our team will verify restoration materials have been approved for use within the Town's ROW. • We will manage a project Procore site to house all project photos, quality reports, and miscellaneous documentation between the Town and Ditesco. • Our team will manage jab files, tracking photographs, updating GIS, quality reports, and other related items. items. This effort is anticipated at five (5) hours per week. • We will participate in a punch list walk and verify close out completion for each phase. We have anticipated 20 hours per each of four (4) phases of the work to complete this close-out effort. • Our team will review record drawings of actual work installed throughout the ROW. These record drawings are anticipated to be provided on a weekly basis from HyperFiber to Ditesco. Additional Services — Engineering and Construction Services o To further support Firestone during construction, we will provide additional part-time construction and engineering management services, as specifically requested. Deliverables: Deliverables will include full project documentation furnished electronically as listed below. • Design Phase Correspondence • Project photographs • ROW permits • Quality Reports • Punch Lists Schedule The anticipated schedule is as follows. Initial Permitting Phase: April to June 2024 Construction Phase May 2024 to May 2025 Fee Estimate We have based our fee estimate on the fallowing assumptions; • Development of GIS system far ROW work tracking. • Design and Construction Phase schedule as stated above • Construction effort to be completed during normal working hours, Monday through Friday. Our team will be available for a standard 8-hour day, during the hours of 7Mam-5=pm, three days per week, as coordinated with the Town. • RFI and submittal review completed by Others. • Record drawings to be completed by ISP and reviewed by Ditesco. • Vehicle mileage will be billed on a daily rate. Page 3 of 6 Initial Permitting Phase Construction Phase Other Direct Costs Total: $ 98,968.c0 $2 i4,581.e0 29 830.00 $3 l3,379.00 ,4 detailed task breakdown is Included, Please find this on page S of this scope %P work proposal. The fee shown above is to be billed on a time and material basis based on the rates shown in the table on page 5 and 6 of this proposal. All reimbursable expenses will be billed at direct cost. Page 4 of 6 ®itesc® Town of Firestone Z024 Wage Rate Schedule President: $215400 - $297.00 per hour PnncipalNP: $185.00 - $248.00 per hour Program/Department Manager: $160000 - $204.00 per hour Senior Project Manager: $155.00 - $196.00 per hour Project Manager: WHO - $183.00 per hour Associate Project Manager: $132400 - $163.00 per hour Engineer. $128600 - $152.00 per hour Associate Engineer: $120,00 - $142.00 per hour Project Engineer: $106,00 - $132,00 per hour Senior Construction Manager: $134.00 - $187.00 per hour Construction Manager/Resident Engineer: $128,00 - $157,00 per hour Associate Construction Manager $102.00 - $144.00 per hour Inspector: $85.00 - $124.00 per hour Senior CAD Design: $125.00 - $154.00 per hour CAD Design. $90.00 - $135.00 per hour GIS Technician: $78.00 - $141.00 per hour Administrative: $72.00 - $94.00 per hour Mileage Reimbursement: IRS Rate Daily Truck Rate: $105,00 per day Subconsultant Markup none All other costs at direct expense Terms 30 days net Page 5 of 6 4t cm O� N 0 0 N M ti 4S 0 0) OI Ot711 �LpO �Op ta0} �.Oj 10 Q1 0 M ? 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