HomeMy WebLinkAbout21-03 Agmt Fred Diehl Consulting, LLC 01-13-2021RESOLUTION N0.21-03
A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF
FIRESTONE, COLORADO, APPROVING AN AGREEMENT BETWEEN THE
TOWN OF FIRESTONE AND FRED DIEHL CONSULTING, LLC, FOR
IMPLEMENTATION OF THE BROADBAND ASSESSMENT AND
FEASIBILITY STUDY RECOMMENDATIONS
WHEREAS, by Resolution No. 19-81 the Town based upon its experience and expertise retained
Fred Diehl Consulting LLC to serve as a liaison for the Town with other governmental entities involved
in broadband and telecommunications and assist in the development and implementation of a Request
for Proposal for a Broadband Assessment and Feasibility Study; and
WHEREAS, the resulting Broadband Assessment and Feasibility Study which was presented to
the Board at its meeting of June 15, 2020, contained recommendations, approved by Board, which
included proceeding with the renewal and negotiations regarding the Towns cable franchise agreement
and the research and submittal of grants for broadband services; and
WHEREAS Fred Diehl Consulting LLC has the skill and experience to provide the services
sought by the Town and given its prior services to the Town is uniquely qualified to provide the services
recommended by the Broadband Assessment and Feasibility Study.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE
TOWN OF FIRESTONE, COLORAD0:
The Agreement between the Town of Firestone and Fred Diehl Consulting, LLC, for
implementation of Broadband Assessment and Feasibility Study recommendations 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��d yy of , 2021.
ATTEST:
'�, WN OF FIRESTO , COLORADO
J� r' O B bbi Sin r, Mayor
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Koenig, CMC, T
AS TO
AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT FOR PROFESSIONAL SERVICES (the "Agreement") is made and entered into
thisday of , 2021 (the "Effective Date"), by and between the TOWN OF FIRESTONE,
a Colorado municipal corporatioO with an address of 151 Grant Avenue, P.O. Box 100, Firestone, Colorado
80520 (the "Town"), and FRED DIEHL CONSULTING, LLC, an independent contractor with a principal place
of business at 2225 Jewel Street Longmont, CO 80501 ("Contractor") (each a "Party" and collectively the
"Parties").
WHEREAS, the Town requires professional services; and
WHEREAS, Contractor 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. Contractor shall furnish 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: 2021 Consulting Services.
B. A change in the Scope of Services shall not be effective unless authorized as an amendment
to this Agreement. If Contractor proceeds without such written authorization, Contractor 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.
11. TERM AND TERMINATION
A. This Agreement shall commence on the Effective Date, and shall continue until Contractor
completes the Scope of Services to the satisfaction of the Town, or until terminated as provided herein.
Be
Either Party may terminate this Agreement upon 30 days advance written notice. The Town
shall pay Contractor for all work previously authorized and completed prior to the date of termination. If,
however, Contractor 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
Inconsideration for the completion of the Scope of Services by Contractor, the Town shall pay the
Contractor an amount not to exceed $100,000.00. This amount shall include all fees, costs and expenses
incurred by Contractor, and no additional amounts shall be paid by the Town for such fees, costs and
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expenses. Contractor may submit periodic invoices, which shall be paid by the Town within 30 days of
receipt.
IV. PROFESSIONAL RESPONSIBILITY
A. Contractor hereby warrants hat 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 Contractor 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 Contractor hereunder shall be done in compliance with applicable laws, ordinances, rules and regulations.
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 Contractor for its professional expertise, Contractor agrees not
to employ subcontractors to perform any work except as expressly set forth in the Scope of Services.
V. OWNERSHIP
Any. materials, items, and work specified in the Scope. of Services, and any and all related
documentation and materials provided or developed by Contractor shall be exclusively owned by the Town.
Contractor 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,"
Contractor 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 Contractor:
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 -consultants from all claims and causes
of action arising from such uses, and shall 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.
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.
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VI. INDEPENDENT CONTRACTOR
Contractor is an independent contractor. Notwithstanding any other provision of this Agreement, all
personnel assigned by Contractor to perform work under the terms of this Agreement shall be, and remain
at all times, employees or agents of Contractor for all purposes. Contractor shall make no representation
that it is a Town employee for any purposes.
VII. INSURANCE
A. Contractor agrees to procure and maintain, at its own cost, a policy orpolicies of insurance
sufficient to insure against all liability, claims, demands, and other obligations assumed by Contractor
pursuant to this Agreement. At a minimum, Contractor shall procure and maintain, and shall cause any
subcontractor to procure and maintain, the insurance coverages listed below, with forms and insurers
acceptable to the Town.
1. Worker's Compensation insurance as required bylaw.
2. Commercial General t_iabilty 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 form 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, employees, and contractors 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 imits 'of $1,000,t)00 each claim. and
$2000,000 general aggregate.
B, Such insurance halt 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, its employees or its contractors shall be excess and not
contributory insurance to that provided by Contractor. Contractor shall be solely responsible for any
deductible losses under any policy.
C. Contractor 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.
VIII. INDEMNIFICATION
A, Contractor .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
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this Agreement if such injury, loss, or damage is caused in whole or in part by, the act, omission, error,
professional error, mistake, negligence, or other fault of Contractor, any subcontractor of Contractor, or any
officer, employee, representative, or agent of Contractor, or which arise out of a worker's compensation claim
of any employee of Contractor or of any employee of any subcontractor of Contractor. Contractor'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 Contractor, any subcontractor of Contractor, or
any officer, employee, representative, or agent of Contractor or of any subcontractor of Contractor.
B. If Contractor is providing architectural, engineering, surveying or other design services under
this Agreement, the extent of Contractor's obligation to indemnify and hold harmless the Town may be
determined only after Contractor'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. § 13-5O.5-
102(8)(c).
IX. ILLEGAL ALIENS
A. ..Certification, By entering into this Agreement, Contractor hereby certifies' hat, at the time
of this certification, it does not knowingly employ or contract with an illegal alien who will perform work under
this Agreement and that Contractor will participate in either the ENerify Program administered by the United
States Qepartment of Homeland Security and Social Security Administration or the Department Program
administered by the Colorado Department of Labor and Employment to confirm the employment eligibility of
all employees who are newly hired to perform work under this Agreement.
13. Prohibited Acts. Contractor shall not knowingly employ or contract with an illegal alien o
perform work under this Agreement, or enter into a contract with a SUDcontractor that fails to certify to
Contractor that the subcontractor shall not knowingly employ contract with an illegal alien to perform work
under this Agreement.
C. Verification.
1. If Contractor has employees, Contractor has confirmed the.. employment eligibility of all
employees who are newly If to perform work under this Agreement through participation in either
the E-Verify Program or the Department Program.
2. Contractor shall not .use the E-Verify Program ;or Department Program procedures to
undertake pre -employment screening of job applicants while this Agreement is being performed.
3. If Contractor obtains actual knowledge that a subcontractor performing work under this.
Agreement knowingly employs or contracts with an illegal alien who is performing work under this
Agreement, Contractor shall: notify the subcontractor and the Town within 3 days that Contractor
has actual knowledge that the subcontractor is employing or contracting with an illegal alien who is
performing work under this Agreement; and terminate the subcontract with the subcontractor if within
3 days of receiving the notice required pursuant to subsection 1 hereof, the subcontractor does not
stop employing or contracting with the illegal alien who is performing work under this Agreement;
except that Contractor shall not terminate the subcontract if during such 3 days the subcontractor
provides information to establish that the subcontractor has not knowingly employed or contracted
with an illegal alien who is performing work under this Agreement.
D. Duty to Comply with Investigations. Contractor shall comply with any reasonable request by
the Colorado Department of Labor and Employment made in the course of an investigation conducted
pursuant to C.R.S. § &17.5-102(5)(a) to ensure that Contractor is complying with the terms of this Agreement.
E. Affidavits, If Contractor does not have employees, Contractor shall sign the "No Employee
Affidavit" attached hereto. If Contractor wishes to verify the lawful presence of newly hired employees who
perform work under the Agreement via the Department Program, Contractor shall sign the "Department
Program Affidavit" attached hereto.
X. MISCELLANEOUS
A. Governing Law and Venue. This Agreementshall 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.
B. 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 obligation 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 directly 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. Severability. 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 Agreementmay only be modified upon written agreement of the Parties.
N. .Assignment. Neither this Agreement nor any of the. rights or obligations of the Parties hall
be assigned by either Party without the written consent of the other.
I. Governmental Immunity. The Town and its officers, attorneys 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-
10-101, et seq., as amended, or otherwise available to the Town and its officers, attorneys or employees.
J. Rights and Remedies. The rights. and remedies of the Town under this Agreement are in
additionto any other rights and remedies provided by law. The expiration of this Agreementshall in noway
limit the Town's legal or equitable remedies, or the period in which such remedies may be asserted, for work
negligently or defectively performed.
r% 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 QateI
TOWN^-JJO'F FIRESITO%N�E, COLORADO
bbi SindelarI Mayor
FRED DIEHL CONSULTING, LLC
By:
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NU EMPLOYEE AFFIDAVIT
7o be completed only if Contractor has no employees
1. Check and complete one.
I, Fred Diehl am a sole proprietor doing business as
Fred Diehl Consulting. LLC 1 do not currently employ any individuals. Should I employ any employees
during the term of my Agreement with the Town of Firestone (the "Town"), I certify that l will comply with the
lawful presence verification requirements outlined in that Agreement.
❑ I, am the sole ownerlmember/shareholder of
a [specify type of entity
corporation, limited liability company], that does not currently employ any individuals. Should I employ any
individuals during the term of my Agreement with the. Town, I certify that I will comply with the lawful presence
verification requirements outlined in that Agreement.
2. Check ane,
❑ I am a United States citizen or legal permanent resident.
The Town must verify this statement by reviewing one of the following items:
■ A valid Colorado driver's license or a Colorado identification card;
■ A .United States military card or a military dependent's identification card;:
■ A United States Coast Guard Merchant Mariner card;
■ A Native American tribal document;
■ In the case of a resident of another state, the driver's license or state4ssued identification
card from the state of residence, if that state requires the applicant to prove lawful presence
prior to the issuance of the identification card; or
• Any other documents or combination of documents listed in the Town's "Acceptable
Documents for Lawful Presence Verification" chart that prove both Contractor's
citizenship/lawful presence and identity.
OR
❑ I am otherwise lawfully present in the United States pursuant to federal law.
Contractor must verify this statement through the federal Systematic Alien Verification of Entitlement
program, and provide such vecation to the Town.
re
01 /06/2021
Date
To be completed only if Contractor participates in the Department of Labor Lawful Presence Verification Program
as a public contractor under contract with the Town of Firestone (the
"Town"), hereby affirm that:
1. I have examined or will examine the legal work status of all employees who are newly hired
for employment to perform work under this public contract for services ("Agreement") with the Town within
20 days after such hiring date;
2. I have retained or will retain file copies of all documents required by 8 U.S.C. § 1324a, which
verify the employment eligibility and identity of newly hired employees who perform work under this
Agreement; and
3. I have not and will not alter or falsify the identification documents for my newly hired
employees who perform work under this Agreement.
Signature
STATE OF COLORADO )
COUNTY OF
The foregoing instrument
, 2021I by
My commission expires:
(SEAL)
ss.
was subscribed, sworn to (or affirmed) before me this _
Notary Public
EXHIBIT A
SCOPE OF SERVICES
Contractor's Dutlesm as detailed in the attached " PROPOSAL FOR SERVICE - TOWN OF FIRESTONE.'
L N ULI
PROPOSAL FOR SERVICES -TOWN OF FIRESTONE
Dear Ms. Ferrera,
Thank you for the opportunity to submit this proposal for services to support the Town of Firestone in achieving
its goals. Serving as a consultant for several Firestone initiatives over the past year and a half, I have worked
direcfily with senior staff, members of the Board of Trustees and community stakeholders. I believe my unique
skill set will be of continued value in assisting you with maintaining the Town as a sustainable and prosperous
community.
The. scope of work in this proposal is for the 2021 calendar year. However, please know that I am available
immediately to continue to assist with the identified projects on an hourly basis.
PROPOSAL
BROADBAND INITIATIVE -IMPLEMENTATION OF RECOMMENDATIONS: Fred Diehl {Consultant) will serve as
project lead to implement approved recommendations as outlined in the Broadband Feasibility Study Final Report.
On August 12, 2Q20, the Board of Trustees was presented with the Broadband Feasibility Study Final Report and
Recommendations. Following the presentation of the final report, the Board directed. staff to conduct outreach to
Allo Communications the top ranked respondent of the Town's RFlfor enhanced broadband services. Subsequent
meetings between the Internet service provider, staff and the Board of Trustees have been positive and productive.
Moving forward the Consultant will•
• Work with Allo Communications to continue negotiations focused on establishing a privately funded, ubiquitous
Fiber to the Premise (FTTP) network in Firestone
• Assist Allo with obtaining necessary network engineering data
• Coordinate and manage introductions and meetings between Allo, staff and stakeholders including but not limited
to United Power, School District and Fire District
• Identify and communicate needs and expectations of all stakeholders to ensure efficient planning, .engineering,
permitting and construction process
• Identify Town -owned fiber assets and potential `Smart City' applications with staff and provide data to Allo
• Maintain and share appropriate milestone timelines
• Work with staff to identify potential locations for Allo's Customer Service Center
• Arrange community engagement and economic development meetings with Allo, public and stakeholders
Assist Town Staff with consistent, transparent and inclusive communications including but not limited to media
releases and community notices
•.:-
L N lJL1"IN
• Serve as a liaison between the Town of Firestone and support agencies such as the Colorado Communication and
Utilities Alliance, Next Century Cities and the National Association of Telecommunications Officers and Advisors
• Maintain communication/dialogue with major cellular service providers to help improve cell coverage in the
community
• Leverage partnership with Allo Communications to assist cellular and wireless providers with improved coverage
• Work with the Town's telecommunications attorney with aVideo/Cable Franchise Agreement between the Town
and Allo Communications (see section below for details)
Total Hours Estimate: 700 Hours
Compensation for Services: Consultant shall be'compensated for services based upon an hourly rate of $100.00.
Reimbursable Materials and Expenses: Shall not exceed $150.00
FRANCHISE AGREEMENTS:. In January of this year, Fred Diehl Consulting, in its capacity as an Independent
Contractor, entered into an agreement with the Town to perform a variety of tasks related to the Cable Franchise
Renewal with Camcast. During that time, the Colorado Communication and Utilities Alliance (CCUAj has developed
a new model franchise agreement for its members. The Town's telecommunications attorney, Kissinger & Fellman
has presented staff with a final draft for review. This same model agreement will be the starting. point for
negotiations between the Town and Allo Communications. Moving forward the Consultant will::
• Work with staff and telecom attorney to identify and resolve remaining issues and execute a final franchise
agreement with Comcast
• Work with Allo, staff and telecom attorney to identify key issues and begin franchise agreement negotiations
• Participate in negotiating sessions with staff, attorney and Allo
• Attend Firestone Board meetings as necessary for each of these franchise agreements
Total Hours Estimate: 75 Hours
Compensation for Services: Consultant shall be compensated for services based upon an hourly rate of $100.00.
Reimbursable Materials and Expenses: Shall not exceed $150.00
GRANT MANAGEMENT -CENTRAL PARK: Perform grant and contract administration; research grant opportunities
and coordinate the. submission of grant activity to include drafting and presenting submissions, manage the budget
and fiscal implications of grant awards, ensure compliance with grant deadlines, applications and monitoring
process.
Moving forward the Consultant will:
• Meet with staff re. Central Park project overview and technical details
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FRED DIEHL CONSULTING
• Research grant opportunities and communicate with public and private organizations and foundations.
Potential applications to include Department of Local Affairs, National Recreation and Park Association
related opportunities and major Colorado foundations.
• Write grants and prepare for submittal
• Distribute drafts to staff for review /update grants for submission /grant submittal
• Follow up communications with organizations and foundations
• Maintain and share appropriate milestone timelines
• Attend appropriate Board of Trustees meetings
Total Hours Estimate: 225 Hours
Compensation for Services: Consultant shall be compensated for services based upon an hourly rate of $100.00.
Reimbursable Materials and Expenses: Shall not exceed $150.00
I look forward to continuing working with you and the Town of Firestone and supporting the Town's efforts in
achieving its goals. If you have questions on this proposal, feel free to contact me at your convenience by email at
freddiehl@msn.com or by phone at 303-944-9273.
Thank you again for this opportunity.
Fred Diehl
freddiehl@msn.com � Linkedln
2225 Jewel Street Longmont, Colorado 80501
303-944-9273
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