PROVO MUNICIPAL COUNCIL Regular Meeting Agenda 5:30 PM, Tuesday, August 04, 2020 Electronic meeting: youtube.com/provocitycouncil
This meeting will be conducted entirely via electronic means. The meeting will be available to the public for live broadcast and on-demand viewing at: youtube.com/provocitycouncil. If you do not have access to the Internet, you can join via telephone following the instructions below about making public comments.
For more information regarding the City Community Safety Plan for COVID-19 and related City facility closures, please visit: provo.org/covid19
TO MAKE A PUBLIC COMMENT: To participate in the public comment portion(s) of the meeting, call in as an audience member as the presentation is wrapping up. Be sure to mute/silence any external audio on your end to reduce feedback (if you are viewing the live proceedings on YouTube, mute the YouTube video; you will be able to hear the meeting audio through the phone while you are on the line).
Press *9 from your phone to indicate that you would like to speak. When you are invited to speak, the meeting host will grant you speaking permission, calling on you by the last four digits of your phone number. Please begin by stating your first and last name, and city of residence for the record. After you have shared your comment, hang up. If you wish to comment on a later item, simply re-dial to rejoin the meeting for any subsequent comment period(s).
August 04 Council Meeting: Dial 346 248 7799. Enter Meeting ID 892 9843 6634 and press #. When asked for a participant ID, press #.
Decorum The Council requests that citizens help maintain the decorum of the meeting by turning off electronic devices, being respectful to the Council and others, and refraining from applauding during the proceedings of the meeting.
Opening Ceremony
Roll Call Prayer Pledge of Allegiance
Public Comment Fifteen minutes have been set aside for any person to express ideas, concerns, comments, or issues that are not on the agenda: Please state your name and city of residence. Please limit your comments to two minutes. State Law prohibits the Council from acting on items that do not appear on the agenda. Consent Agenda
1. An ordinance granting Cellco Partnership d/b/a Verizon Wireless a nonexclusive franchise to operate a telecommunications network in Provo City, Utah. (20-107)
Action Agenda
2. A resolution appointing individuals to various boards and commissions. (20-003)
3. A resolution authorizing Provo City to enter into an Interlocal Agreement with Utah County for disbursement from the Corona Virus Relief Fund. (20-108)
4. A resolution approving the application for grants from the Bureau of Reclamation's WaterSMART Drought Response Program for fiscal year 2021 for the Provo Aquifer Storage and Recovery Project. (20-105)
5. A resolution to place the vacant property at 480 West Center on the Surplus Property List and to remove a parcel at the mouth of Provo Canyon therefrom. (20-110)
6. ***CONTINUED*** A resolution authorizing the Mayor to enter into a lease financing for golf course maintenance equipment. (20-109)
7. ***CONTINUED*** A resolution appropriating $521,093.13 in the Golf Fund for the purchase of Golf Course Maintenance Equipment to be leased. (20-109)
Adjournment
Provo City Municipal Council Chair’s Statement re Open and Public Meetings Act
In accordance with Utah Code 52-4-207(4)* I have determined that conducting meetings of the Municipal Council with an anchor location, such as the Municipal Council Chamber, presents a substantial risk to the health and safety of those who may be present there. These are the facts upon which I have made this determination: Utah has been in a declared state of emergency due to novel coronavirus disease 2019 (COVID-19) since March 6, 2020, a disease outbreak which the World Health Organization has characterized as a pandemic. The Centers for Disease Control and Prevention (CDC) state that COVID-19 is easily spread from person to person between people who are in close contact with one another. The spread is through respiratory droplets when an infected person coughs, sneezes, or talks, and it may be spread by people who are non- symptomatic. Federal, state, and local authorities have recommended that individuals limit public gatherings, wear facemasks, and follow social distancing guidelines, that individuals exposed to persons experiencing symptoms of COVID-19 self- quarantine for 14 days, and that individuals experiencing symptoms of COVID- 19 self-isolate to prevent and control the continuing spread of COVID-19. Notwithstanding that Utah generally, and Utah County specifically, have been moved to the Low Risk (Yellow) Phase, reported COVID-19 cases in Utah County have more than doubled since May 31, 2020. Physical distancing measures will be difficult to set up and maintain in the Provo City Municipal Council Chamber. Therefore, for the next 30 days, all meetings of the Municipal Council will be conducted entirely via electronic means: Council meetings are broadcast live and available later on demand at youtube.com/provocitycouncil. Agendas and support materials are available at agendas.provo.org. To make a public comment or to join a meeting via telephone, follow the instructions provided on public notices of each meeting. To send comments to the Council or weigh in on current issues, visit opencityhall.provo.org or email the Council at [email protected]. -George Handley, Chair, July 6, 2020
I have determined that conducting meetings of the Governing Board of the Redevelopment Agency of Provo City is subject to the same risks identified above based on the facts stated herein. Therefore, I adopt the same procedures listed above for meetings of the RDA Governing Board. -David Sewell, RDA Chair, July 6, 2020
* As amended by HB5002, Open and Public Meetings Act Amendments, (2020 Fifth Special Session), Utah Code Annotated (UCA) 52-4-207(4) provides that a public body may convene and conduct an electronic meeting without an anchor location if the chair of the public body: (a) makes a written determination that conducting the meeting with an anchor location presents a substantial risk to the health and safety of those who may be present at the anchor location; (b) states in the written determination described in Subsection (4)(a) the facts upon which the determination is based; (c) includes in the public notice for the meeting, and reads at the beginning of the meeting, the information described in Subsections (4)(a) and (b); and (d) includes in the public notice information on how a member of the public may view or make a comment at the meeting. UCA 52-4-207(5) states that a written determination described in Subsections (4)(a) and (b) expires 30 days after the day on which the chair of the public body makes the determination. https://le.utah.gov/~2020S5/bills/static/HB5002.html If you have a comment regarding items on the agenda, please contact Councilors at [email protected] or using their contact information listed at: http://provo.org/government/city-council/meet-the-council
Materials and Agenda: agendas.provo.org Council meetings are broadcast live and available later on demand at youtube.com/user/ProvoCityCouncil To send comments to the Council or weigh in on current issues, visit OpenCityHall.provo.org.
The next scheduled Council Meeting will be held on 8/18/2020 5:30:00 PM. The meeting will be streamed on YouTube, unless otherwise noticed. The Work Meeting start time is to be determined (typically between 12:00 and 4:00 PM) and will be noticed at least 24 hours prior to the meeting.
Notice of Compliance with the Americans with Disabilities Act (ADA) In compliance with the ADA, individuals needing special accommodations (including auxiliary communicative aides and services) during this meeting are invited to notify the Provo Council Office at 351 W. Center, Provo, Utah 84601, phone: (801) 852-6120 or email [email protected] at least three working days prior to the meeting. Council meetings are broadcast live and available for on demand viewing at youtube.com/ProvoCityCouncil. Closed-captioning is available on YouTube.
Notice of Telephonic Communications One or more Council members may participate by telephone or Internet communication in this meeting. Telephone or Internet communications will be amplified as needed so all Council members and others attending the meeting will be able to hear the person(s) participating electronically as well as those participating in person. The meeting will be conducted using the same procedures applicable to regular Municipal Council meetings.
Notice of Compliance with Public Noticing Regulations Pursuant to Executive Order 2020-05, certain requirements of Utah Code 52-4-202 and 52-4-207 have been waived. There will be no anchor location for this meeting; it will be conducted exclusively using online means and will be available to view on YouTube at youtube.com/ProvoCityCouncil. This meeting was noticed in compliance with Executive Order 2020-05, which supersedes some requirements listed in Utah Code 52-4-202 and Provo City Code 14.02.010. Agendas and minutes are accessible through the Provo City website at agendas.provo.org. Council meeting agendas are available through the Utah Public Meeting Notice website at utah.gov/pmn, which also offers email subscriptions to notices. PROVO MUNICIPAL COUNCIL STAFF REPORT
Submitter: MDRAPER Department: Legal Requested Meeting Date: 08-04-2020
SUBJECT: An ordinance granting Cellco Partnership d/b/a Verizon Wireless a nonexclusive franchise to operate a telecommunications network in Provo City, Utah. (20-107)
RECOMMENDATION: Approve the ordinance as written.
BACKGROUND: Cellco Partnership d/b/a Verizon Wireless is looking to install small cell wireless facilities in the public right of way. This agreement would govern the rights and obligations of any work performed in the public right of way.
FISCAL IMPACT: Cellco Partnership d/b/a Verizon Wireless will pay the Municipal Telecommunications License Tax of 3.5% of the gross revenues it derives from sales of its services to customers within Provo City limits.
PRESENTER’S NAME: none
REQUESTED DURATION OF PRESENTATION: none
COMPATIBILITY WITH GENERAL PLAN POLICIES, GOALS, AND OBJECTIVES:
CITYVIEW OR ISSUE FILE NUMBER: 20-107
1 Provo City (Legal) Staff Memorandum
Cellco Partnership d/b/a Verizon Wireless Franchise Agreement Ordinance August 4, 2020
Department Head Purpose of Proposal Robert West ● To establish the terms of Cellco Partnership d/b/a Verizon (801) 852-6144 Wireless’ franchise with Provo City.
Presenter Action Requested Marcus Draper ● Approval of Franchise Agreement. (801) 852-6158 Relevant City Policies Required Time for ● Provo City Code Chapters 5.03, 5.07, and 6.24. Presentation 5 minutes Budget Impact ● Cellco Partnership d/b/a Verizon Wireless shall pay the Municipal Telecommunications License Tax of 3.5% of the Is This Time Sensitive gross revenues it derives from sales of its services to No customers within Provo City limits.
Case File # (if Description of this item (at least 2 paragraphs) applicable) This is to help Council Members to have a clear understanding of what your item is. XX-XXX ● Provo City and Cellco Partnership d/b/a Verizon Wireless have come to terms on a Franchise Agreement. Pursuant to Provo City Code, “[n]o franchise contract shall take effect until it has been approved by the Municipal Council.” 5.03.020 (5). The parties are seeking the Council’s approval for the Agreement that they have reached. ● In addition to some minor changes, there are 2 notable changes in the Franchise Agreement from the template. The provisions relating to the City’s ability to conduct an audit are removed on the grounds that the Utah State Tax Commission already collects the Municipal Telecommunications License Tax on behalf of Provo and conducts periodic audits. Thus, additional audits by Provo were considered duplicative. The second notable change relates to the franchise fee. Under the template, the fee is collected in an amount equal to the Municipal Telecommunications License Tax. The Franchise Fee paid is then offset against the tax that would otherwise be due. In this agreement the issue is simplified and Cellco Partnership d/b/a Verizon Wireless would simply pay the tax. The amount of revenues that Provo receives would not be affected by this change. 1 ORDINANCE 2020-. 2 3 AN ORDINANCE GRANTING CELLCO PARTNERSHIP D/B/A VERIZON 4 WIRELESS A NONEXCLUSIVE FRANCHISE TO OPERATE A 5 TELECOMMUNICATIONS NETWORK IN PROVO CITY, UTAH. (20-107) 6 7 WHEREAS, Cellco Partnership d/b/a Verizon Wireless desires to obtain a nonexclusive 8 franchise to have the right and privilege to operate a telecommunications network in Provo, 9 Utah; and 10 11 WHEREAS, Provo City and Cellco Partnership d/b/a Verizon Wireless (Verizon Wireless) 12 have negotiated a nonexclusive franchise agreement (Franchise Agreement) setting forth Verizon 13 Wireless’s rights and duties with respect to its operation of a telecommunications network in 14 Provo, Utah, as set forth in the attached Exhibit A; and 15 16 WHEREAS, on April 9, 2019, the Provo Municipal Council met to ascertain the facts 17 regarding this matter and receive public comment, which facts and comments are found in the 18 public record of the Council’s consideration; and 19 20 WHEREAS, after considering the facts presented to the Municipal Council, the Council 21 finds: (i) the attached Franchise Agreement should be approved, thereby granting Verizon 22 Wireless a franchise to operate a telecommunications network in Provo, Utah, on the terms set 23 forth in the Franchise Agreement; and (ii) such action furthers the health, safety, and welfare, 24 and the best interests of the citizens of Provo. 25 26 NOW, THEREFORE, be it ordained by the Municipal Council of Provo City, Utah, as 27 follows: 28 29 PART I: 30 31 The attached Franchise Agreement between Provo City and Verizon Wireless is hereby 32 approved and Verizon Wireless is hereby granted a franchise to operate a telecommunications 33 network in Provo, Utah, pursuant to the Franchise Agreement. The Mayor is hereby authorized 34 to execute the Franchise Agreement, as set forth in the attached Exhibit A; provided, however, 35 that the Mayor is also hereby authorized to amend the Franchise Agreement as may be needed to 36 meet the requirements of applicable law. 37 38 The franchise granted herein shall be effective upon the date on which all parties have 39 signed the Franchise Agreement. If the Franchise Agreement has not been fully executed within 40 sixty (60) days after the passage of this ordinance by the City, this ordinance and the rights 41 granted herein shall be null and void. 42 43 44 PART II: 45 46 A. If a provision of this Ordinance conflicts with a provision of a previously adopted 47 ordinance concerning the same franchising act as described herein, this Ordinance shall 48 prevail. 49 50 B. This ordinance and its various sections, clauses and paragraphs are hereby declared to be 51 severable. If any part, sentence, clause or phrase is adjudged to be unconstitutional or 52 invalid, the remainder of the ordinance shall not be affected thereby. 53 54 C. The Municipal Council hereby directs that this Ordinance remain uncodified. 55 56 D. This ordinance shall take effect immediately after it has been posted or published in 57 accordance with Utah Code 10-3-711, presented to the Mayor in accordance with Utah 58 Code 10-3b-204, and recorded in accordance with Utah Code 10-3-713. 59
60 END OF ORDINANCE. PROVO CITY AND CELLCO PARTNERSHIP DBA VERIZON WIRELESS TELECOMMUNICATIONS FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT (“Agreement”) is made and entered into on ______, 2020 by and between the City of Provo, Utah, (hereinafter "City") and Cellco Partnership, a Delaware general partnership, d/b/a Verizon Wireless (hereinafter "Company").
WITNESSETH:
WHEREAS, Provo City Code Chapter 6.24 “Telecommunications Rights-of-Way” provides for the use of the City’s Rights-of-Way for the installation, construction, and maintenance of systems in the City’s Rights-of-Way;
WHEREAS, the Company desires to provide access to the Rights-of-Way and a franchise to install certain Wireless facilities, as defined in Section 54-21-101(29) of the Utah Code within the City, and in connection therewith to establish or enhance a telecommunications network in, under, along, over, and across present and future streets, alleys, easements, and Rights-of-Way of the City, consisting of Wireless facilities in approved locations in the Rights-of-Way and the attachment of Wireless facilities to an existing or new Utility pole (as defined in Section 54-21- 101(28) of the Utah Code)) or Wireless Support Structure (as defined in Section 54-21-101(34) of the Utah Code)) in the Rights-of-Way, and all necessary appurtenances; and
WHEREAS, the City, in exercise of its ownership rights over and in the public streets, alleys, easements, and Rights-of-Way, believes that it is in the best interest of the public to provide to the Company and its successors a non-exclusive franchise to operate its business within the City; and
WHEREAS, the City and the Company agree the Company may provide its services within the City, pursuant to the terms and conditions outlined in this Agreement and in Provo City Code Chapter 6.24, the Act, and subject to the further reasonable regulation under its police and other regulatory power;
NOW, THEREFORE, in consideration of the mutual convents and agreements of the parties contained herein, and other good and valuable consideration, City and Company agree as follows:
1 Active/51435831.1 ARTICLE I
FRANCHISE AGREEMENT AND ORDINANCE
1.1 Agreement. Upon approval by the City Municipal Council, this Franchise Agreement shall be deemed to constitute a contract by and between City and Company.
1.2 Ordinance. Previously, the City adopted Chapter 6.24 “Telecommunications Rights-of- Way” (the "Ordinance"), and such Ordinance is incorporated herein by reference and made an integral part hereof;
1.3 Grant of Franchise. The City hereby grants to Company and its successors and assigns the non-exclusive right, privilege, and franchise (the "Franchise") to access the Rights-of- Way to construct, maintain, operate and enhance the Network in, under, along, over, and across the present and future streets, alleys, easements and Rights-of-Way of the City. The Franchise does not grant to the Company the right, privilege or authority to engage in the community antenna (or cable) television business. If state or federal law permits Company to operate an open video system without obtaining a separate franchise from City to provide video services, Company nevertheless acknowledges that Chapter 6.22 of the Provo City Code regulates and governs the provisions of multichannel video services, and in providing video services to Customers within City, Company shall be subject to the customer service and consumer protection provisions of that Chapter.
1.4 Financial Capability. Company warrants that it has the financial capability to construct, maintain, and operate a telecommunications network and to otherwise comply with the provisions of this Agreement.
1.5 Relationship; Joint Facilities Agreement. Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in a manner that would indicate any such relationship with the other. The Franchise does not grant Company the right to use City utility poles, conduit, or other related facilities. The use of such facilities shall be governed by a separate Pole Attachment and Conduit Occupancy Agreement subject to obtaining permits any other users of the ROW may be required to obtain. . 1.6 Definitions. The words, terms, and phrases which are used herein and in the Ordinance shall have their ordinary plain meaning unless the word, term, or phrase is expressly defined herein. Words, terms, and phrases which are not specifically defined herein, but are defined in the Act, or its successor, or by federal law, shall have the technical meaning provided by that section as of the date of this Agreement. The following words, terms, and phrases when used herein shall have the following meanings:
2 Active/51435831.1 "City Council" means the Provo City Municipal Council.
"Customer" means a person or user of the Company's telecommunications Network who lawfully receives telecommunications services or other services therefrom with the Company's authorized permission, including, but not limited to, other companies utilizing Company’s Network to provide services to customers of those companies.
"Gross Revenues" means any and all revenues of the Company derived from the sale of telecommunications services to its Customers within the City, without regard to the billing address of the Customer; and to the extent such services utilize the herein-referenced fiber-optic, copper, or other cable; except that the term "Gross Revenue" shall not include revenue from sources excluded by law, or revenue derived by the Company from services provided to its parent, subsidiaries of its parent, or affiliated companies of the Company. To the extent this definition conflicts with Utah Code § 10-1-402(4), the provisions of Utah law control.
"Network" means a Network of Wireless facilities, together with necessary and desirable appurtenances (including underground and above-ground conduits and structures, poles, towers, antennas, radio transceivers, wires, cables, and associated equipment) for its own use for the purpose of providing telecommunications services to the City, the inhabitants thereof, and persons and corporations beyond the limits thereof.
"Public Improvement" means any existing or contemplated public facility, building, or capital improvement project, including without limitation streets, alleys, sidewalks, sewer, water drainage, Right-of-Way improvements, poles, lines, wires, conduits, and Public Projects.
"Public Project" means any project planned or undertaken by the City or any governmental entity for construction, reconstruction, maintenance, or repair of public facilities or improvements, or any other purpose of a public nature.
"Rights-of-Way" includes present and future City streets, alleys, rights-of-way, and public easements, including easements dedicated in plats of the City, and as currently defined by applicable law.
3 Active/51435831.1 ARTICLE II
TERMS AND RENEWAL
2.1 Terms, Renewal and Permitting. The Franchise granted to Company shall be for a period of ten (10) years commencing on the date this Agreement is executed, unless this Franchise be sooner terminated as herein provided. At the end of the initial ten (10) year term, the Franchise shall be automatically renewed upon the same terms and conditions as contained in this Agreement, and so long as Company is in compliance with the provisions of this Agreement, for an additional ten (10) year term, unless Company provides the City's representative, not less than ninety (90) calendar days before the expiration of the initial franchise term, written notice of Company's intent not to renew or City provides written notice of intent not to renew to Company’s representative not less than ninety (90) days before the expiration of the initial franchise term. If the statutory limit imposed on the Franchise Fee by Utah Code § 11-26-1 et seq., or any successor provision, is changed, the parties shall amend, upon its renewal, this Agreement to conform to the new statutory limit.
To locate Wireless Facilities in the Public Way or attach Wireless Facilities to an existing or new Structure in the Public Way, Company shall submit an application for a permit to work in the Right-of-Way (a “Public Way Permit”), the form of which shall be substantially similar to the form attached hereto as Exhibit “A”’ provided, the City and the Company can reasonably amend the form from time to time to comply with the Provo City Code, Chapter 6.24 “Telecommunications Right-of-Way”, subject to the Small Wireless Facilities Deployment Act pursuant to Title 54, Chapter 21 of the Utah Code, or its successor (the “State Code”) and applicable federal law. In accordance with the State Code, the Company may submit a request to review and approve multiple Wireless Support Structures on the same application by attaching a list of said facilities to the application. If a Wireless Support Structure is approved and a Public Way Permit is granted, the license for the approved Wireless Facility shall coincide with this Agreement. Company shall comply with the requirements of the Provo City Code, Chapter 6.24 “Telecommunications Right-of-Way”. An approved Public Way Permit shall approve the location and plans for the location of a Wireless Support Structure. Depending on the scope of the Company’s proposed work, Company may also need to apply for additional permits such as a traffic control permit and electrical permit. The Public Way Permit shall be reviewed as provided in the Provo City Code, Chapter 6.24 “Telecommunications Right-of-Way”, the State Code and applicable federal law.
2.2 Rights of Company Upon Expiration or Revocation. Within ninety (90) days of expiration of the Franchise, whether by lapse of time, by agreement between Company and the City, or by revocation or forfeiture thereof, the Company shall have the right to remove any and all of its facilities, but in such event, it shall be the duty of the Company, immediately upon such removal, to restore the streets, avenues, alleys, and other public
4 Active/51435831.1 ways and grounds from which such facilities are removed to as good condition as the same were before the removal was effected.
2.3 Rights of City Upon Expiration or Revocation. Within ninety (90) days of expiration of the term of this Franchise, forfeiture, or lawful revocation of this Franchise, and if no renewal or extension thereof is agreed upon, Company may, at the discretion of the City Council, be required, in part or entirely, to remove all its wires, poles, fixtures, and other facilities or equipment installed or used in the enjoyment of the Franchise. Alternatively, the removal, or sale of such facilities and equipment may be directed, limited, or conditioned by the City by agreement or through means of other lawful municipal power or right. The City may continue to invoke any or all provisions of this Franchise against Company or any successor entity enjoying de facto franchise privileges after expiration or revocation. The City and the Company will work together to take all other actions deemed necessary and proper by the City to accommodate the transition to any successor as may be in the best interest of the City or its inhabitants and the Company.
ARTICLE III
CONSIDERATION AND PAYMENT
3.1 Franchise Fee. To the extent that Company is providing services subject to the Municipal Telecommunications License Tax Act (Title 10, Chapter 1, Part 4 of Utah Code), it shall not be required to pay additional rate, fee or compensation for the right to use or occupy the City Rights-of-Way as Company acknowledges that it or an affiliate currently pays the required municipal telecommunications license tax (“Municipal Telecommunications Tax”) as a result of its other operations within the City. In the event all or any portion of the Company Facilities ceases to be used by the Company to provide services subject to the Municipal Telecommunications Tax, the City and the Company agree to negotiate in good faith any amendments to this Agreement as shall be necessary to accommodate a change in fees due hereunder; provided such new or changed provisions shall conform substantially with the provisions contained in any permits held by other similarly situated companies.
ARTICLE IV
USE AND RELOCATION OF FACILITIES IN THE PUBLIC RIGHT-OF-WAY
4.1 Franchise Rights to Use the Public Right-of-Way. The Company shall have the right to use the public Rights-of-Way within the City to construct and maintain its Network, including placement of its own new poles or Wireless Support Structures and related appurtenances, subject to the conditions set forth in this Agreement, including the
5 Active/51435831.1 provisions of Chapters 6.24 and 15.11 of the Provo City Code, and, without prejudicing either party’s remedies at law or equity, the Title 54, Chapter 21, Part 3 of the Utah State Code permitting process for Small Wireless Facilities, which is hereby incorporated by reference. Provided, however, the Company shall not, pursuant to this Agreement, place any new poles, mains, cables, structures, pipes, conduits, or wires on, over, under, or within any Right-of-Way, City park, pleasure ground, or other recreational area currently existing or developed in the future without a permit from the City Representative. Nothing contained herein shall preclude the City from granting a revocable permit for such purpose. In addition, Company shall have the right to utilize any easements across private property granted to the City for utility purposes, provided the City's written permission is obtained in each case and the documents granting such easements to the City authorize such use. Company specifically understands and acknowledges that certain City easements and Rights-of-Way may be prescriptive in nature, and that nothing in this Franchise extends permission to use the easement or Right-of-Way beyond the extent that the City may have acquired, and such easements and Rights-of-Way may be subject to third party prior or after-acquired interests. Company is cautioned to examine each individual easement and Right-of-Way and the legal arrangement between the City and adjacent property owners. The City assumes no duty or obligation to defend any interest in any easement or Right-of-Way and Company remains solely responsible to make any arrangements required as a result of other persons claiming an interest in the City easement or Right-of-Way.
Application and all other review and permitting fees charged by the City hereunder and applicable to shall be limited to Section 54-21-503 of the Utah State Code, Application Fees.
Any rates charged for placement of a new Company pole within the Rights-of-Way (if any) shall be limited to those set forth in Section 54-21-502 of the Utah State Code.
In the event federal laws, rules or regulations conflict with the Utah State Code or the Provo City Code and Ordinances, then federal law shall control and preempt such state and local laws.
4.2 Company Duty to Relocate; Subordination to City Use. Whenever the City, for any lawful public purpose, shall require the relocation or reinstallation of any property of the Company or its successors in any of the streets, alleys, Rights-of-Way, or public property of the City, it shall be the obligation of the Company, upon notice of such requirement and written demand made of the Company, and within a reasonable time thereof, but not less than one hundred twenty (120) calendar days, if feasible, to remove and relocate or reinstall such facilities as may be reasonably necessary to meet the requirements of the City. Such relocation, removal, or reinstallation by the Company shall be at no cost to the City; provided, however, that the Company and its successors and assigns may maintain and operate such facilities, with the necessary appurtenances, in the new
6 Active/51435831.1 location or locations without additional payment, if the new location is a public place. Notwithstanding the foregoing, the duty of the Company to install or relocate its lines underground shall be subject to the provisions of paragraph 5.3 below. Any money and all rights to reimbursement from the State of Utah or the federal government to which the Company may be entitled for work done by Company pursuant to this paragraph shall be the property of the Company. The City shall assign or otherwise transfer to the Company all rights the City may have to recover costs for such work performed by the Company and shall reasonably cooperate with the Company's efforts to obtain reimbursement. In the event the City has required the Company to relocate its facilities to accommodate a private third party, the City shall use good faith to require such third party to pay the costs of relocation; provided, the City shall not relocate the Company, Wireless facilities and Wireless support structures to accommodate another Wireless provider. Notwithstanding anything to the contrary herein, the Company's use of the Right-of-Way shall in all matters be subordinate to the City's use of the Right-of-Way for any public purpose. The City and Company shall coordinate the placement of their respective facilities and improvements in a manner which minimizes adverse impact on each other. Where placement is not otherwise regulated and unless the facilities are located on Public Improvements the facilities shall be placed with adequate clearance from such Public Improvements so as not to impact or be impacted by such Public Improvements.
4.3 Duty to Obtain Approval to Move Company Property; Emergency. Except as otherwise provided herein, the City, without the prior written approval of the Company, shall not intentionally alter, remove, relocate, or otherwise interfere with any Company facilities. However, if it becomes necessary (in the judgment of the Mayor, City Council, City Engineer, Fire Chief, Police Chief, Energy Director, or their designees) to cut, move, remove, or damage any of the cables, appliances, or other fixtures of the Company because of a fire, emergency, disaster, or imminent threat thereof, these acts may be done without prior written approval of the Company, and the repairs thereby rendered necessary shall be made by the Company, without charge to the City. The City covenants to use its best efforts to contact Company by phone to provide notice of emergency work by calling Company’s Network Operations Center at (800) 224-6620/(800) 621-2622. Should the City take actions pursuant to this section, the Company shall indemnify, defend, and hold the City harmless from and against any and all claims, demands, liens, or liability for (a) loss or damage to the Company's property and/or (b) interruptions of telecommunications services provided by the use of or through the Company's property (including telecommunications services provided by the Company to the Company's Customers), whether such claims, demands, liens, or liability arise from or are brought by the Company, its insurers, the Company's Customers, or third parties. If, however, the City requests emergency funding reimbursement from federal, state or other governmental sources, the City shall include in its request the costs incurred by the Company to repair facilities damaged by the City in responding to the emergency. Any funds received by the City on behalf of Company shall be paid to the Company within thirty (30) business days.
7 Active/51435831.1 ARTICLE V
PLAN, DESIGN, CONSTRUCTION, INSTALLATION OF COMPANY FACILITIES
5.1 Coordination of Construction and Joint Use. On or before February 28, May 31, August 31, and November 30 of each calendar year, or such other date the Company and City may agree upon from year to year, the Company's and the City's representatives will meet (the "Quarterly Coordination Meeting") for the purpose of exchanging information and documents regarding future construction of Company's facilities within the City, with a view toward coordinating their respective activities. Documents and information to be exchanged shall include, without limitation, engineering drawings or other detailed maps of the proposed locations of construction or installation of telecommunication facilities. The Company, the City Engineer, and the City Energy Director shall thereafter in good faith exchange other information and documents regarding the proposed construction for the purpose of coordinating the joint and respective activities within the City. Any significant construction or installation of new facilities by the Company or other franchised telecommunication companies not presented at the Quarterly Coordination Meeting shall only be commenced upon approval of the City Engineer and the City Energy Director. Upon request, information regarding future capital improvements involving land acquisition or construction or installation of telecommunication facilities shall be treated with confidentiality as governed, and to the extent authorized, by City ordinance and the Government Records Access and Management Act.
5.2 Conditions of Public Utility Easement, Right-of-Way and Street Occupancy.
a. Except as provided below, the Company shall not erect, authorize, or permit others to erect any poles within the streets of the City for the operation of Company's Network, but shall use the existing poles and facilities of the City Energy Department and other telecommunication providers under such terms as the Company negotiates with City and these other entities in separate "joint facilities" agreements. City shall cooperate with Company in its negotiating with other telecommunication providers.
b. The Company may request, in writing, that it be authorized to erect poles or place conduit or other facilities within the streets of the City for the operation of its Network. Such consent shall be within the reasonable discretion of the City, subject to the requirements of applicable law, and shall be given upon such terms and conditions as the City Council, in its reasonable discretion, may prescribe, which shall include a requirement that the Company perform, at its sole expense, all tree trimming required as a result of the Company’s presence to maintain the line or facilities clear of obstructions. If applicable, with respect to any poles or
8 Active/51435831.1 wire-holding structures that the Company is authorized to construct and install within the City, a public utility or public utility district serving the City may, if denied the privilege of utilizing such pole or facility by the Company, apply for such permission to the City Council. If the City Council finds that such use would enhance the public convenience and would not unduly interfere with the Company's present and future operations, the City Council may authorize such use subject to such terms and conditions as may reasonably be agreed between the parties. Such authorization shall include the condition that the public utility district pay to the Company any and all actual and necessary costs incurred by the Company in permitting such use, and shall indemnify the Company and City from and against any claims or causes of action brought about due to such use.
c. No cables, equipment, or wires for construction, maintenance, and operation of the Network shall be installed or the installation thereof commence on any existing pole within the City until the proposed location, specifications, and manner of installation of such cables, equipment, and wires are set forth upon an engineering drawing, plot, or map showing the existing poles, streets, alleys, or highways where such installations are proposed. The drawing, plot, or map shall be submitted to the City Engineer and the City Energy Director and reviewed for approval or disapproval within sixty (60) days in writing. Such approval shall not be unreasonably withheld and shall be in accordance with applicable law. The Company shall have the sole responsibility for diligently obtaining, at its own cost and expense, all permits, licenses or other forms of approval or authorization necessary to construct, maintain, upgrade or repair the system, including but not limited to any necessary approvals from persons and/or the City to use private property, easements, poles and conduits.
d. If, in the conduct of its business, the Company is required to locate facilities in the streets of the City, other than facilities that may be attached to utility poles, the nature of such facilities shall be disclosed to the City for prior review and approval as to the need thereof and as to the location within the street. The installation shall be made under such conditions as the City Engineer shall prescribe in accordance with applicable law.
e. The Company, at its own expense, may, and is solely responsible to, trim trees overhanging the public Rights-of-Way of the City to prevent the branches of such trees from coming in contact with the Company's wires and cable. Prior to the Company attempting to trim trees upon and overhanging streets, alleys, sidewalks and public places of the City, the Company shall obtain approval from, and be under the supervision of, the City official to whom such duties have been or may be delegated in accordance with the applicable provisions of the municipal code of the City. Company shall immediately remove the trimmings and restore the area to its previous condition.
9 Active/51435831.1 f. The Company, on the request of any person holding a building moving permit issued by the City, shall temporarily raise or lower its wires to permit the moving of such building. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the Company may require such payment in advance. The City agrees to provide prior written notice of the necessity to move the wires as far in advance as possible; provided in no event shall the City give less than forty-eight (48) hours advance notice. In the event of a disagreement between the Company and the holder of a permit, such disagreement shall be resolved by the City.
5.3 Duty to Underground. Where applicable and subject to federal law, the Company shall be required to comply with the rules and regulations of the Public Service Commission in regard to the installation of underground lines. In addition, the Company shall comply with rules and regulations adopted by the City for the placement of newly constructed Network lines underground; provided, however, Company shall only be required to place newly constructed Network lines underground to the extent that underground placement is also required of all other existing and newly constructed lines of other telecommunication companies at that location with the City. If all other electric utilities or telephone utilities are located or relocated underground in any place within the City after the Company has installed its facilities, the Company shall thereafter remove and relocate its facilities underground in such places. Where utilities are underground, the Company may locate certain equipment above ground upon a showing of necessity and with the written approval from the City.
5.4 Company Duty to Comply with Rules and Regulations. Facilities located on, upon, over, and under property in which the City has an ownership interest shall be constructed, installed, maintained, cleared of vegetation, renovated, or replaced in accordance with such rules and regulations as the City may issue. The Company shall acquire permits in accordance with such rules and regulations and the City may inspect the manner of such work and require remedies as may be necessary to assure compliance. It is understood that this work involves the health, safety, and welfare of the community, and from time to time, must be done under circumstances that may make prior acquisition of a permit infeasible.
5.5 Compliance with Pollution Laws. Company shall ensure that its facilities within the City meet the standards required by applicable federal and state air and water pollution laws. Upon the City's request, the Company shall provide the City with a status report of such measures.
5.6 Compliance with Applicable Laws. All telecommunications lines, poles, towers, pipes, conduits, equipment, property, and other structures or assets installed, used, maintained, relocated, or dismantled under color of this Agreement shall be so installed, used,
10 Active/51435831.1 operated, tested, maintained, relocated, or dismantled in accordance with applicable present and future federal, state, and City law and regulations, including but not limited to the most recent editions of the National Electrical Code, the National Electrical Safety Code, and the Fiber Optic Cable Installation Standard of the Telecommunications Industry Committee, or such substantive equivalents as may hereafter be adopted or promulgated. It is understood that the standards established in this paragraph are minimum standards and the requirements established or referenced in this Agreement may be additional to or stricter than such minimum standards.
5.7 Location to Minimize Interference. All lines, poles, towers, pipes, conduits, equipment, property, structures, and assets of the Company shall be located so as to minimize interference with the use of streets, alleys, Rights-of-Way, and public property by others and shall reasonably avoid interference with the rights of owners of property that abuts any of said streets, alleys, Rights-of-Way, or public property.
5.8 Repair of Damage. If during the course of work on its facilities, the Company causes damage to or alters any street, alley, Rights-of-Way, sidewalk, utility, Public Improvement, or other public property, the Company (at its own cost and expense and in a manner approved by the City) shall promptly and completely restore such street, alley, Rights-of-Way, sidewalk, utility, Public Improvement or other public property to its previous condition, in accordance with applicable City ordinances, policies, and regulations relating to repair work of similar character to the reasonable satisfaction of the City. Except in case of emergency, the Company, prior to commencing work in the public way, street, or public property, shall make application for a permit to perform such work from the City Engineer or other department or division designated by the City; provided, the Company perform regular maintenance and make like-kind changes to its equipment without a permit. Such permit shall not be unreasonably withheld. The Company shall abide by all reasonable regulations and requirements of the City for such work.
5.9 Guarantee of Repairs. For a period of one year following the completion of the repair work performed pursuant to Section 5.8, the Company shall maintain, repair, and keep in good condition those portions of said streets, alleys, Rights-of-Way, or public property restored, repaired, or replaced to the satisfaction of the City.
5.10 Safety Standards. The Company's work, while in progress, shall be properly protected at all times with suitable barricades, flags, lights, flares, or other devices as are reasonably required by applicable safety regulations, or standards imposed by law including, but not limited to, signing in conformance with the Federal and State of Utah manuals on Uniform Traffic Control Devices.
11 Active/51435831.1 5.11 Supervision by the City.
a. The Company shall construct, operate, and maintain the Network within the City in strict compliance with all laws, ordinances, rules, and regulations of the City and any other agency having jurisdiction over the operations of the Company.
b. The Company's Network and all parts thereof within the City shall be subject to the right of periodic inspection by the City; provided that such inspection shall be conducted at reasonable times and upon reasonable notice to the Company.
5.12 Company's Duty to Remove Its Network.
a. The Company shall promptly remove, at its own cost and expense, from any public property within the City, all or any part of the Network when one or more of the following conditions occur:
(1) The Company ceases to operate the Network for a continuous period of twelve months, and does not respond to written notice from the City within thirty (30) days after receiving such notice following any such cessation, except when the cessation of service is a direct result of a natural or man-made disaster;
(2) The Company fails to construct said Network as herein provided and does not respond to written notice from the City within thirty (30) days after receiving such notice following any such failure;
(3) The Franchise is terminated or revoked pursuant to notice as provided herein; or
(4) The Franchise expires pursuant to this Agreement.
b. The Company’s removal of any or all of the Network that requires trenching or other opening of the City's streets shall be done only after the Company obtains prior written notice and approval from the City.
c. The Company shall receive notice, in writing from the City, setting forth one or more of the occurrences specified in Subsection 5.12(a) above and shall have ninety (90) calendar days from the date upon which said notice is received to remove or abandon such facilities.
5.13 Notice of Closure of Streets. Except in cases of emergency, the Company shall notify the City not less than three (3) working days in advance of any construction, reconstruction, repair, or relocation of facilities which would require any street closure
12 Active/51435831.1 which reduces traffic flow to less than two lanes of moving traffic. Except in the event of an emergency, as reasonably determined by the Company, no such closure shall take place without prior authorization from the City. In addition, all work performed in the traveled way or which in any way impacts vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected as required by Section 5.10, above.
ARTICLE VI
POLICE POWER
6.1 Reservation of Police Power. The City expressly reserves, and the Company expressly recognizes, the City's right and duty to adopt, from time to time, in addition to the provisions herein contained, such ordinances and rules and regulations as the City may deem necessary in the exercise of its police power for the protection of the health, safety and welfare of its citizens and their properties.
6.2 Other Regulatory Approval. The Company and the City shall at all times during the life of this Franchise, comply with all federal, state, and City laws and regulations and with such reasonable and lawful regulation as the City now or hereafter shall provide, including all lawful and reasonable rules, regulations, policies, resolutions and ordinances now or hereafter promulgated by the City relating to permits and fees, sidewalk and pavement cuts, attachment to poles, utility location, construction coordination, beautification, and other requirements on the use of the Right-of-Way. The terms of this Franchise shall apply to all the Company's facilities used, in whole or part, in the provision of telecommunications services in newly annexed areas upon the effective date of such annexation. Company shall provide no service regulated by the Federal Communications Commission (FCC) or Utah Public Service Commission (PSC) until it has received all necessary approvals and permits from said commissions. Nothing in this Agreement shall constitute a waiver of either party’s right to challenge any portion of this Agreement which is not in accordance with applicable federal, state and local laws.
ARTICLE VII
CITY REPRESENTATIVES
7.1 Mayor's Duties and Responsibilities. The Mayor is hereby designated as the "City Representative" with full power and authority to take appropriate action for and on behalf of the City and its inhabitants to enforce the provisions of this Agreement and to investigate any alleged violations or failures of the Company to comply with said provisions or to adequately and fully discharge its responsibilities and obligations
13 Active/51435831.1 hereunder. The Mayor may delegate to others, including but not limited to, the City Attorney, City Engineer, City Finance Director, and City Energy Director, the various duties and responsibilities of City Representative. The failure or omission of the Mayor or the Mayor's designee(s) as City Representative to act shall not constitute any waiver or estoppel.
7.2 Company Duty to Cooperate. In order to facilitate such duties of the City Representative, the Company agrees to allow the City Representative reasonable access to any part of the Company's Network within the City’s public Rights-of-Way.
7.3 City Financial Review. With regard to financially related matters, the Mayor or the Mayor's designee, as City Representative may undertake a financial review of Company's payment of its Franchise fees and other fees and obligations under this Agreement. The failure or omission to conduct a financial review shall not constitute any waiver or estoppel.
7.4 No Waiver or Estoppel. Neither the City nor the Company shall be excused from complying with any of the terms and conditions of this Agreement by any failure of the other or any of its officers, employees, or agents, upon any one or more occasions, to insist upon or to seek compliance with any of such terms and conditions.
ARTICLE VIII
TRANSFER OF FRANCHISE
8.1 Written Approval Required. The Company shall not transfer or assign the Franchise or any rights under this Agreement to another entity, unless the City shall first give its approval in writing, which approval shall not be unreasonably withheld or delayed. Any attempted assignment or transfer without such prior written consent shall constitute a Default of the Franchise. In the event of such a Default, City shall proceed according to the procedure set forth in this Agreement, and any applicable state or federal law.
Notwithstanding anything to the contrary in this Article 8, without any approval or consent of City, this Franchise and/or and authorized permit, may be assigned or transferred by Company to (i) any Affiliate, or (ii) any entity which acquires all or substantially all of Company's assets in the market defined by the FCC in which its facilities are located by reason of a merger, acquisition or other business reorganization.
8.2 Procedure for Obtaining Approval for Transfer. At least ninety (90) calendar days before a proposed assignment or transfer of Company's Franchise is scheduled to become effective, Company shall petition in writing for the City Council's written consent for such a proposed assignment or transfer. The City will not unreasonably withhold its
14 Active/51435831.1 consent to such an assignment or transfer. However, in making such a determination, the City Council may consider any or all of the following:
(a) experience of proposed assignee or transferee (including conducting an investigation of proposed assignee or transferee's service record in other communities); (b) qualifications of proposed assignee or transferee; (c) legal integrity of proposed assignee or transferee; (d) financial ability and stability of the proposed assignee or transferee; (e) the corporate connection, if any, between the Company, and proposed assignee or transferee; and (f) any other aspect of the proposed assignee's or transferee's background which could affect the health, safety, and welfare of the citizenry of the City as it relates to the operation of a telecommunications network.
8.3 Certification of Assignee. Before an assignment or transfer is approved by the City Council, the proposed assignee or transferee shall execute an affidavit, acknowledging that it has read, understood, and intends to abide by the applicable Franchise Agreement and all applicable laws, rules, and regulations.
8.4 Effect of Approval. In the event of any approved assignment or transfer, the assignee or transferee shall assume all obligations and liabilities of Company, except an assignment or transfer shall not relieve the Company of its liabilities under the Franchise Agreement until the assignment actually takes place, unless specifically relieved by federal, or state law, or unless specifically relieved by the City Council at the time an assignment or transfer is approved.
8.5 Transfer Upon Revocation by City. Company and City agree that in the case of a lawful revocation of the Franchise, at Company's request, which shall be made in its sole discretion, Company shall be given a reasonable opportunity to effectuate a transfer of its Network to a qualified third party. City further agrees that during such a period of time, it shall authorize the Company to operate pursuant to the terms of its prior Franchise; however, in no event shall such authorization exceed a period greater than six (6) months from the effective date of such revocation. If at the end of that time, Company is unsuccessful in procuring a qualified transferee or assignee of its Network which is reasonably acceptable to the City, Company and City may avail themselves of any rights they may have pursuant to federal or state law; it being further agreed that Company's continued operation of its Network during the six (6) month period shall not be deemed to be a waiver, nor an extinguishment, of any rights of either the City or the Company. Notwithstanding anything to the contrary set forth herein, neither City nor Company shall be required to violate federal or state law.
15 Active/51435831.1 8.6 Abandonment of Facilities by Company. The Company, with the written consent of the City, may abandon any above or underground facilities in place, subject to the requirements of the City. In such an event, after receiving the written consent of the City, the abandoned Network shall become the property of the City, and the Company shall have no further responsibilities or obligations concerning those facilities.
ARTICLE IX
ACCEPTANCE BY THE COMPANY OF FRANCHISE
Company Duty to Approve Franchise Agreement. If the Company has not duly executed this Agreement prior to the City Council's adoption of the corresponding ordinance, then within sixty (60) calendar days after the effective date of the City Council's adoption of the ordinance, the Company shall execute this Agreement and file an unqualified acceptance of the ordinance in writing with the City Recorder of the City in a form approved by the City Attorney; otherwise, this Agreement and any ordinance adopted relating thereto and all rights granted hereunder shall be null and void.
ARTICLE X
EXTENSION OF CITY LIMITS
Annexations. Upon the annexation of any territory to the City, all rights hereby granted and the Franchise shall extend to the territory so annexed to the extent the City has authority. All facilities owned, maintained, or operated by the Company located within, under, or over streets of the territory so annexed shall thereafter be subject to all terms hereof.
ARTICLE XI
EARLY TERMINATION OR REVOCATION OF FRANCHISE
11.1 Grounds for Termination. The City may terminate or revoke this Agreement and all rights and privileges herein provided for any of the following reasons:
a. The Company fails to make timely payments of the Franchise Fee as required under Article III of this Agreement and does not correct such failure within thirty (30) business days after written notice by the City of such failure;
b. The Company, by act or omission, materially violates a duty or obligation herein set forth in any particular within the Company's control, and with respect to which
16 Active/51435831.1 redress is not otherwise herein provided. In such event, the City, acting by or through its City Council, may determine, after hearing, that such failure is of a material nature, and, thereupon, after written notice giving the Company notice of such determination, the Company, within thirty (30) calendar days of such notice, shall commence efforts to remedy the conditions identified in the notice and shall have ninety (90) calendar days from the date it receives notice to remedy the conditions. After the expiration of such ninety-day period and failure to correct such conditions, the City may, unless otherwise agreed in writing, declare the Franchise forfeited, and, thereupon, the Company shall have no further rights or authority hereunder; provided, however, that any such declaration of forfeiture and termination shall be subject to judicial review as provided by law, and, provided further, that in the event such failure is of such nature that it cannot be reasonably corrected within the ninety-day time period provided above, the City shall provide additional time for the reasonable correction of such alleged failure if the reason for the non-compliance was not the intentional or negligent act or omission of the Company;
c. The Company becomes insolvent, unable, or unwilling to pay its debts; is adjudged bankrupt; or all or part of its facilities should be sold under an instrument to secure a debt and is not redeemed by the Company within thirty (30) calendar days; or
d. In furtherance of the Company policy or through acts or omissions done within the scope and course of employment, a director or officer of the Company knowingly engages in conduct or makes a material misrepresentation with or to the City that is fraudulent or in violation of a felony criminal statute of the State of Utah.
11.2 Reserved Rights. Nothing contained herein shall be deemed to preclude the Company from pursuing any legal or equitable rights or remedies it may have to challenge the action of the City.
ARTICLE XII
INSURANCE AND INDEMNIFICATION
12.1 No City Liability. Except as otherwise specifically provided herein, the City shall in no way be liable or responsible for any loss or damage to property, including financial or other business loss (whether direct, indirect, or consequential), or any injury to or death of any person that may occur in the construction, operation, or maintenance by the Company of its lines and appurtenances hereunder, except to the extent of the City’s negligence or willful misconduct.
17 Active/51435831.1 12.2 Company Indemnification of City. The Company shall indemnify, and at the City's option defend, and hold the City, and the officers, agents and employees thereof, harmless from and against any and all claims, suits, actions, liability and judgments for damages or otherwise harmless from and against claims, demands, liens, and all liability or damage of whatsoever kind on account of, or arising from, the exercise by the Company of the rights related to this Agreement, or from the operations of the Company within the City, and shall pay the costs of defense plus reasonable attorneys' fees, except to the extent of the City’s negligence or willful misconduct. Said indemnification shall include, but not be limited to, the Company's negligent acts or omissions pursuant to its use of the rights and privileges of this Agreement, including construction, operation, and maintenance of telecommunications lines and appurtenances, whether or not any such use, act, or omission complained of is authorized, allowed, or prohibited by this Agreement.
12.3 Notice of Indemnification. The Company shall give prompt written notice to the City of any claim, demand, or lien that may result in a lawsuit against the City. City shall give written notice to Company promptly after City learns of the existence of Claim for which City seeks indemnification; provided, however, the failure to give such notice shall not affect the rights of City, except and only to the extent the Company is prejudiced by such failure. The Company shall have the right to employ counsel reasonably acceptable to the City to defend against any such Claim. If such counsel will represent both the Company and City, there may be no conflict with such counsel’s representation of both. Company must acknowledge in writing its obligation to indemnify the City for the entire amount of any Loss relating thereto. No settlement of a Claim may seek to impose any liability or obligation upon the City other than for money damages. The City will use commercially reasonable efforts to fully cooperate in any such action, shall make available to the Company any books or records useful for the defense of any such claim, and shall reasonably make available its personnel with respect to defense of the claim. If Company fails to acknowledge in writing its obligation to defend against or settle such Claim within thirty (30) days after receiving notice thereof from the City (or such shorter time specified in the notice as the circumstances of the matter may dictate), the City shall be free to dispose of the matter, at the expense of Company (but only if indemnification is adjudged to be proper), in any way in which the City deems to be in its best interest. Notwithstanding any provision hereof to the contrary, the Company shall not be obligated to indemnify, defend, or hold the City harmless to the extent any claim, demand, or lien arises out of or in connection with a breach by the City of any obligation under this Agreement or any negligent or otherwise tortious act or failure to act of the City or any of its officers or employees or agents.
18 Active/51435831.1 12.4 Insurance.
a. Workers Compensation and Employer’s Liability Acts. Company shall obtain worker’s compensation in compliance with all applicable laws, including the statutory requirement of the State of Utah, and employer’s liability with a limit of $1,000,000 each accident/disease/policy limit and shall furnish a certificate of insurance reasonably satisfactory to City prior to placing equipment within the Right of Way.
b. Company Maintenance of Insurance Coverage. Without limiting any liabilities or any other obligations of Company, Company shall, at its sole expense and prior to placing equipment within the Right of Way, secure and continuously carry with insurers the following insurance coverage:
Commercial General Liability insurance with a limit of $5,000,000 per occurrence for bodily injury and property damage to protect against and from claims or losses based upon or arising out of Company’s operations, pursuant to this Agreement.
Commercial Automobile Liability insurance with a combined single limit of $2,000,000 each accident for bodily injury and property damage with respect to Company’s vehicles covering all owned, hired or non-owned, assigned to or used in Company’s operations hereunder.
Umbrella liability with a limit of $2,000,000 per occurrence and $2,000,000 aggregate.
The policies required herein shall include City, its directors, officers and employees as additional insured as their interests may appear under this Agreement, and a cross-liability and severability of interest clause.
The policies required herein shall include provisions that such insurance is primary insurance with respect to the interests of City and that any other insurance maintained by City is excess and not contributory insurance with the insurance required under this section. Upon receipt of notice from its insurer(s), Company shall use commercially reasonable efforts to provide City with (30) days prior written notice of cancellation. A certificate in a form reasonably satisfactory to City certifying the issuance of such insurance shall be furnished to City by Company.
Company shall cause its contractors and subcontractors to comply with the insurance requirements contained herein and provide appropriate insurance certificates to City prior to any installation of Equipment.
12.5 City's Right to Intervene. In any suit in which the City is named as a party and seeks indemnification from the Company, and in which the City in its own reasonable
19 Active/51435831.1 discretion believes that a conflict of interest with Company exists, the City shall have the right to provide its own defense in connection with the same. In such event, in addition to being reimbursed for any such judgment that may be rendered against the City which is subject to indemnification hereunder, together with all court costs incurred therein, the Company shall reimburse the City for all reasonable attorney's fees, including those employed by the City in such case or cases, as well as all reasonable expenses incurred by the City by reason of undertaking the defense of such suit or suits, whether such suit or suits are successfully defended, settled, compromised, or fully adjudicated against the City.
12.6 No Creation of a Private Cause of Action. The provisions set forth herein are not intended to create liability for the benefit of third parties but is solely for the benefit of the Company and the City. In the event any claim is made against the City that falls under these indemnity provisions and a Court of competent jurisdiction should adjudge, by final decree, that the City is liable therefore, the Company shall indemnify and hold the City harmless of and from any such judgment or liability, including any court costs, expenses, and attorney fees incurred by the City in defense thereof, except in the circumstance of the City’s negligence or willful misconduct. Nothing herein shall be deemed to prevent the parties indemnified and held harmless herein from participating in the defense of any litigation by their own counsel at their own expense. Such participation shall not under any circumstances relieve the Company from its duty of defense against liability or paying any judgment entered against such party.
12.7 Performance Bonds and Other Surety. To ensure completion of the Company's performance of its obligations hereunder, Company shall furnish to the City a performance bond that is substantially similar in form to the surety guarantee bond that is attached hereto as Exhibit “B”, from an insurer or guarantor that is acceptable to the City.
ARTICLE XIII
REMEDIES
13.1 Duty to Perform. The Company and the City agree to take all reasonable and necessary actions to assure that the terms of this Agreement are performed.
13.2 Remedies at Law. In the event the Company or the City fail to fulfill any of their respective obligations under this Agreement the City or the Company, whichever the case may be, shall have a breach of contract claim and remedy against the other in addition to any other remedy provided by law, provided that no remedy that would have the effect of amending the specific provisions of this Agreement shall become effective without such action that would be necessary to formally amend the Agreement.
20 Active/51435831.1 13.3 Third Party Beneficiaries. The benefits and protection provided by this Agreement shall inure solely to the benefit of the City and the Company. This Agreement shall not be deemed to create any right in any person who is not a party and shall not be construed in any respect to be a contract in whole or in part for the benefit of any third party (other than the permitted successors and assigns of a party hereto).
13.4 Force Majeure. The Company shall not be held in default or noncompliance with the provisions of the Franchise, nor suffer any enforcement or penalty relating thereto, where such noncompliance or alleged defaults are caused by strikes, acts of God, power outages, or other events reasonably beyond its ability to control, but the Company shall not be relieved of any of its obligations to comply promptly with any provision of this Franchise contract by reason of any failure of the City to enforce prompt compliance. Nothing herein shall be construed as to imply that City waives any right, payment, or performance based on future legislation where said legislation impairs this contract in violation of the United States or Utah Constitutions.
ARTICLE XIV
NOTICES
City and Company Designees and Addresses. Unless otherwise specified herein, all notices between the City and the Company pursuant to or concerning this Agreement or the Franchise shall be delivered to (or to such other offices as the City or Company may designate by written notice to the other Party):
City: Company:
Provo City Corporation Cellco Partnership d/b/a Verizon Wireless 351 West Center Street 180 Washington Valley Road Provo, UT 84601 Bedminster, New Jersey 07921 Attention: Finance Department Attention: Network Real Estate
With a copy to (which copy will not With copies to (which shall not constitute constitute notice): notice):
Provo City Attorney’s Office PO Box 1849 Provo, UT 84603 Attention: City Attorney
AND
21 Active/51435831.1 Provo City Energy Department PO Box 658 Provo, UT 84603 Attention: Energy Department Director
ARTICLE XV
CHANGING CONDITIONS
Meet to Confer. The Company and the City recognize that many aspects of the telecommunications business are currently the subject of discussion, examination, and inquiry by different segments of the industry and affected regulatory authorities, and that these activities may ultimately result in fundamental changes in the way the Company conducts its business. In recognition of the present state of uncertainty respecting these matters, the Company and the City each agree, on request of the other during the term of this Agreement, to meet with the other and discuss in good faith whether it would be appropriate, in view of developments of the kind referred to above during the term of this Agreement, to amend this Agreement or enter into separate, mutually satisfactory arrangements to effect a proper accommodation of any such developments.
ARTICLE XVI
AMENDMENT AND GENERAL PROVISIONS
16.1 Duty to Negotiate. At any time during the term of this Agreement, the City, through the City Council, or the Company may propose amendments to this Agreement by giving thirty (30) calendar days written notice to the other of the proposed amendment(s) desired, and both parties thereafter, through their designated representatives, shall negotiate, within a reasonable time, in good faith in an effort to agree upon mutually satisfactory amendment(s).
16.2 Written Approval to Amend Agreement Required. No amendment or amendments to this Agreement shall be effective until mutually agreed upon by the City and the Company, and an ordinance or resolution approving such amendments is approved by the City Council.
16.3 Entire Agreement. This Agreement and all attachments hereto represent the entire understanding and agreement between the parties hereto with respect to the subject matter hereof, and can be amended, supplemented, modified, or changed only by the written agreement of the parties, including the formal approval of the City Council.
22 Active/51435831.1 16.4 Governing Law. This Agreement and any action related to this Agreement will be governed the laws of the State of Utah.
16.5 Joint Drafting. The Parties acknowledge that this Agreement has been drafted jointly by the Parties and agree that this Agreement will not be construed against either Party as a result of any role such Party may have had in the drafting process.
23 Active/51435831.1 ARTICLE XVII
SEVERABILITY
17.1 Conditions. If any section, sentence, paragraph, term, or provision of this Agreement or the Ordinance is for any reason determined to be or rendered illegal, invalid, or superseded by other lawful authority including any state or federal, legislative, regulatory, or administrative authority having jurisdiction thereof or determined to be unconstitutional, illegal, or invalid by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision, and such determination shall have no effect on the validity of any other section, sentence, paragraph, term, or provision hereof or thereof, all of which shall remain in full force and effect for the term of this Agreement and the Ordinance or any renewal or renewals thereof, except for Article III hereof. The parties do not waive their right to assert that the obligations contained herein, including those obligations contained in Article III arise as a matter of contract and are not otherwise conditioned.
17.2 Conflicts. In the event of a conflict between any provision of this Agreement and the Ordinance, the provisions of the Ordinance in effect at the time the Agreement is entered into shall control.
17.3 Fee Article Non-Severable. Article III hereof is essential to the adoption of this Agreement, and should it be challenged by the Company or determined to be illegal, invalid, unconstitutional, or superseded, in whole or in part, the entire Agreement and the Franchise shall be voided and terminated, subject to the following provisions of this Article. In the event of a judicial, regulatory, or administrative determination that Article III is illegal, invalid, unconstitutional, or superseded, such termination shall be effective as of the date of a final appealable order, unless otherwise agreed upon by the City and the Company. In the event of any legislative action that renders Article III unconstitutional, illegal, invalid, or superseded, such termination shall be effective as of the effective date of such legislative action.
17.4 Waiver of Non-Severability. Notwithstanding the foregoing, if the City stipulates in writing to judicial, administrative, or regulatory action that seeks a determination that Article III is invalid, illegal, superseded, or unconstitutional, then a determination that Article III is invalid, illegal, unconstitutional, or superseded shall have no effect on the validity or effectiveness of any other section, sentence, paragraph, term, or provision of this Agreement, which shall remain in full force and effect.
17.5 Lease Terms Upon Termination. In the event this Agreement is terminated pursuant to Section 17.3 hereof, the City grants to the Company a lease according to the same terms and conditions as set forth in this Agreement. Accordingly, the Company shall pay, as fair market rental value, the same amounts, at the same times, required for the payment of
24 Active/51435831.1 the Franchise Fee pursuant to Article III hereof and be bound by all other terms and conditions contained herein; provided, however, that in no event shall the Company be obligated to pay a higher percentage of Gross Revenues derived from the sale of telecommunications services within the City than is paid by other telecommunication companies serving within the City.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
25 Active/51435831.1 IN WITNESS WHEREOF, this Franchise Agreement is executed in duplicate originals as of the date first set forth above, to become effective on that date.
Provo City Corporation Cellco Partnership, a Delaware general partnership, d/b/a Verizon Wireless By: ______Michelle Kaufusi, Mayor By: ______Name: ______ATTEST: Title: ______
______Amanda Ercanbrack, City Recorder
STATE OF UTAH ) )ss. COUNTY OF UTAH )
On the ______day of ______, 2020, personally appeared before me ______, ______, ______, and ______, who being by me duly sworn did each respectively say that he/she is______of Cellco Partnership, a Delaware general partnership, d/b/a Verizon Wireless, and that the foregoing instrument was signed in behalf of said Company and he/she each acknowledged to me that said Company executed the same.
______Notary Public
26 Active/51435831.1 PROVO CITY CORPORATION PUBLIC WORKS DEPARTMENT - ENGINEERING DIVISION
PERMIT APPLICATION OWNER INFORMATION Owner______Address______City ______State ______Zip Code______Contact______Mobile Phone______Office Phone______fax______Email______
CONTRACTOR INFORMATION Contractor:______Mobile______Office______: Address______City ______State ______Zip Code______fax______Email______Location of Work______Project Name______
Date Work to Begin______Estimated Completion Date______
PROPOSED WORK
£ Contractor will NOT be disturbing asphalt or concrete. £ Contractor will be disturbing asphalt or concrete. £ SEWER MAIN £ WATER MAIN £ GAS £ CURB & GUTTER £ GRADING £ SEWER LATERAL £ WATER SERVICE £ TELEPHONE £ SIDEWALK £ ASPHALT £ STORM DRAIN £ FIRE HYDRANT £ CABLE £ DIRECTIONAL BORING £ OTHER DESCRIBE PROPOSED WORK:______
APPLICATION CHECKLIST
Has a PROJECT PLAN been submitted for this work. Yes No (If Yes, is a PROJECT PLAN Attached) Yes No
Will this work be within the public street right of way. Yes No If Yes, is a TRAFFIC PLAN Attached. Yes No
Are CUTSHEETS required for this project. Yes No If Yes, are CUTSHEETS Attached Yes No
Is this work considered to be an EMERGENCY. Yes No
Project plans will be required for issuance of any work permit. Cutsheets will be required with the installation of sewer mains, water mains, storm drains and curb & gutter. Emergency work will require a permit within 24 hours after the first business day following the work.
Print Name______Signature______Date______EXHIBIT B
SURETY GUARANTEE
WHEREAS, the City of Provo, Utah (hereinafter “City”) under the Franchise Agreement dated the ____ day of ______, 2020, has granted a franchise to Cellco Partnership d/b/a Verizon Wireless, (hereinafter “Company”) to own, operate, and maintain a telecommunications network (hereinafter “Franchise”); and
WHEREAS, the Franchise Agreement requires the Company, as Principal, to furnish a surety guarantee issued to cover the faithful performance of the Company’s obligations under the Franchise; and
WHEREAS, ______(hereinafter “Guarantor”) is willing to act as guarantor and insurer of Company’s performance under the Franchise Agreement; and
NOW THEREFORE, Guarantor hereby unconditionally guarantees the due and punctual performance of any and all obligations of company contained in the Franchise.
This Guaranty shall, unless terminated, substituted, or canceled as hereinafter provided, remain in full force and effect for the term of the Franchise Agreement and any extensions approved pursuant to the Franchise Agreement, provided that, upon substitution of another Guarantor reasonably satisfactory to the City, this Guaranty may be terminated, substituted, or canceled upon thirty (30) calendar days prior written notice from Guarantor to the City and Company. Any such notice to be given hereunder shall be addressed to ______and to the Provo City Attorney, 351 West Center Street, Provo, Utah 84603.
Such terminations shall not affect liability incurred or accrued under this Guaranty prior to the effective date of such termination or cancellation. No claim, suit or action under this Guaranty by reason of any default of the Company shall be brought against Guarantor unless asserted or commenced within six (6) months after the effective date of such termination or cancellation of the Guaranty.
IN WITNESS WHEREOF, the Company and Guarantor have hereunto signed this surety guaranty on the _____ day of ______, 2020. PROVO MUNICIPAL COUNCIL STAFF REPORT
Submitter: EVANDERWERKEN Department: Council Requested Meeting Date: 07-21-2020
SUBJECT: A resolution appointing individuals to various boards and commissions. (20- 003)
RECOMMENDATION: Approve the resolution
BACKGROUND: Mayor Kaufusi has submitted a number of appointments and reappointments of individuals to various boards and commissions. The Council has had an opportunity to review the appointees' qualifications and meet with the appointees. This resolution will formalize their appointments to these respective boards and commissions.
FISCAL IMPACT: None
PRESENTER’S NAME: Mayor Kaufusi
REQUESTED DURATION OF PRESENTATION: 5 minutes
COMPATIBILITY WITH GENERAL PLAN POLICIES, GOALS, AND OBJECTIVES:
CITYVIEW OR ISSUE FILE NUMBER: 20-003
1 1 RESOLUTION 2020- 2 3 A RESOLUTION CONSENTING TO THE APPOINTMENT OF INDIVIDUALS 4 TO VARIOUS BOARDS AND COMMISSIONS. (20-003) 5 6 WHEREAS, the Mayor, acting pursuant to her statutory authority, has recommended that 7 individuals be appointed to serve on various boards and commissions as detailed below; and, 8 9 WHEREAS, on August 4, 2020, the Municipal Council met to ascertain the facts regarding 10 this matter and receive public comment, which facts and comments are found in the public record 11 of the Council’s consideration; and 12 13 WHEREAS, after considering the Mayor's recommendation and facts presented to the 14 Municipal Council, the Council (i) consents to the board appointments set forth below and (ii) 15 finds such appointments will reasonably further the health, safety and general welfare of the 16 citizens of Provo City. 17 18 NOW, THEREFORE, be it resolved by the Municipal Council of Provo City, Utah, as 19 follows: 20 21 PART I: 22 23 1. Pursuant to Provo City Code Section 2.20.020, the Municipal Council consents to the 24 appointment of the individual listed below to serve on the listed board or commission for the 25 prescribed term: 26 27 Appointee's Name Board Term Expiration Date 28 Emma Willes Arts Council June 30, 2021 29 30 PART II: 31 32 1. The Municipal Council consents to the appointment of the individual listed below to 33 serve in the listed seat on the Planning Commission for the prescribed term. 34 35 Appointee's Name Seat Term Expiration Date 36 Allyn Jones 1 June 30, 2023 37 38 2. Following said appointments, there are currently 9 members on the Planning 39 Commission, as shown on the attached Exhibit A. 40 41 PART III: 42 43 This resolution and the board and commission appointments indicated herein shall take 44 effect immediately. 45 46 END OF RESOLUTION. EXHIBIT A1 PLANNING COMMISSION APPOINTMENTS
Name Seat Term Expiration Date Appointing Resolution Allyn Jones 1 June 30, 2023 attached Deborah Jensen 2 June 30, 2021 2018-27 Russ Phillips 3 June 30, 2021 2018-27 Lisa Jensen 4 June 30, 2023 2020-22 Daniel Gonzales 5 June 30, 2023 2020-22 Laurie Urquiaga 6 June 30, 2022 2019-38 Brian Henrie 7 June 30, 2022 2020-22 Dave Anderson 8 June 30, 2022 2019-38 Robert Knudsen 9 June 30, 2021 2018-27
1 This Exhibit includes the Planning Commission appointees in the resolution to which it is attached. Anyone not so appointed should be removed from the Exhibit. PROVO MUNICIPAL COUNCIL STAFF REPORT
Submitter: WAYNEP Department: Mayor Office Requested Meeting Date: 08-04-2020
SUBJECT: A resolution authorizing Provo City to enter into an Interlocal Agreement with Utah County for disbursement from the Corona Virus Relief Fund. (20- 108)
RECOMMENDATION: Approve the resolution as written.
BACKGROUND: The City has received an allocation under the CARES Act from Utah County for expenses and projects related to the impact of COVID-19 on citizens and city operations. The Administration would like to review the proposed agreement with the County and the projects the Administration intends to undertake with the allocated funding (see attachments).
FISCAL IMPACT: $8,445,460 received from Utah County for expenses related to COVID-19 authorized under the CARES Act
PRESENTER’S NAME: Wayne Parker
REQUESTED DURATION OF PRESENTATION: 10 minutes
COMPATIBILITY WITH GENERAL PLAN POLICIES, GOALS, AND OBJECTIVES:
CITYVIEW OR ISSUE FILE NUMBER: 20-108
1
MEMORANDUM
TO: Members of the Municipal Council FROM: Wayne Parker, CAO DATE: July 28, 2020 SUBJECT: CARES Act Interlocal Agreement
Councilors – the Administration has been working hard over the last several weeks to begin the process of allocating funding made available to the City under the federal CARES Act. CARES Act funding is designed to address the impacts of the Covid-19 pandemic on city operations. The funding was allocated to Utah County, and the County’s process for allocating their $111 million allocation has been difficult for them. Consequently, a part of our request for Council action is the approval of the interlocal agreement between the City and the County for the allocation of these funds.
The Administration has been concerned about one provision in the agreement provided by the County, located at the bottom of page 4 and the top of page 5 of the agreement. This provision appears to require the City to reduce its allocation from the county if the city receives any funding for Covid-19 related expenses from any other source. The City has received approximately $2.5 million in Covid-related grants already from other sources (CDBG, FAA grants at the airport, library grants, police grants, etc.) and we have asked the county for a specific exemption for those funds given that they were committed prior to the County’s allocation. We have met with the Commissioners and received assurance that the County would communicate that exemption in writing. We would request that the Council authorize the Mayor to execute the agreement once a mutually acceptable form of this assurance has been received from the County.
The CARES Act has some specific limitations on the use of the funds allocated under the grant program. One key item is that these funds can’t be used for replacing revenue shortfalls as the result of the pandemic and its impacts on the economy or on city revenues. As you know, we have been through a difficult budget process to attempt to deal with these revenue issues.
Members of the Municipal Council July 28, 2020 page 2
Other CARES Act limitations include:
• The expense or project is necessary due to Covid-19 • The expense or project was not otherwise budgeted • All costs need to be incurred between March 1 and December 31, 2020 • Any project must have benefits to residents prior to December 31, 2020
Additionally, the interlocal agreement specifies that the City must have expended funds by November 2 and return any unused portion of the allocation back to the County. There are some limited exceptions to that rule, but the general intention of the agreement is to get the CARES Act funds into productive use and not return any to the U.S. Treasury at the end of the calendar year.
The City also indemnifies the County under the terms of the agreement should any project or expenditure be deemed later by federal audit to not having met the federal standards.
The City’s Process for Allocating Funds
The Administration has worked with department directors and with the Finance Division to review project requests from city departments for the use of CARES Act funds. Applications for 70 projects were submitted to Finance during late June and early July. Each project information sheet and back up materials were reviewed by the Finance team to determine if they met the qualifications under the CARES Act. Those that met that threshold were then reviewed by the Mayor, CAO, Deputy Mayor and Assistant CAO and prioritized. The spreadsheet submitted with the Council materials shows the results of that effort.
We have also attached a brief paragraph about each of the projects for the Council’s review. We will be happy to respond to questions or requests for clarification on any of these projects. The CARES Act funding has allowed us to address many of the issues which the City has confronted as the result of the global Coronavirus pandemic and we believe that we have developed a list of projects and expenses which meet the requirements of the CARES Act, the guidance from the U.S. Treasury Department, and the County’s interlocal agreement.
Members of the Municipal Council July 28, 2020 page 3
We look forward to the opportunity to discuss these issues further with you at the upcoming meeting of the Municipal Council.
c Mayor Kaufusi Isaac Paxman Dixon Holmes John Borget David Mortensen Kelsey Zarbock
1 RESOLUTION 2020- 2 3 A RESOLUTION AUTHORIZING PROVO CITY TO ENTER INTO AN 4 INTERLOCAL AGREEMENT WITH UTAH COUNTY FOR DISBURSEMENT 5 FROM THE CORONA VIRUS RELIEF FUND. (20-108) 6 7 WHEREAS, Provo City (the “City”) and Utah County (the “County”) desire to approve 8 and enter into the Interlocal Agreement as described below, a draft if which is attached hereto as 9 Exhibit A; and 10 11 WHEREAS, the Federal Government provided $1.25 billion to Utah state and local 12 governments through the Coronavirus Relief Fund (“CRF”) included in section 5001 of the 13 CARES Act. Based on the distribution formula in the CARES Act, $934.8 million was paid to the 14 State of Utah (“State”), $203.6 million was paid directly to Salt Lake County, and $111.6 million 15 was paid directly to Utah County (the “County Allocation”). State and local governments can only 16 use the CRF payments to respond to the COVID-19 pandemic. While the County is not required 17 to distribute a portion of its $111.6 million payment to local entities, the County Commission has 18 elected to share a portion with local entities within Utah County; and 19 20 WHEREAS, the CARES Act provides that payments from CRF may only be used to cover 21 costs that: (1) are necessary expenditures incurred due to the public health emergency with respect 22 to COVID–19, (2) were not accounted for in the budget most recently approved as of March 27, 23 2020 (the date of enactment of the CARES Act) for the State or local government; and (3) were 24 incurred during the period that begins on March 1, 2020, and ends on December 30, 2020; and 25 26 WHEREAS, Utah Code Section 11-13-202.5, as amended, requires certain interlocal 27 agreements to be approved by resolution of the legislative body, governing board, council or other 28 governing body of a public agency; and 29 30 WHEREAS, on August 4, 2020, Provo Council met to ascertain the facts regarding this 31 matter and receive public comment, which facts and comments are found in the public record of 32 the Council’s consideration; and 33 34 WHEREAS, all persons for and against the proposed agreement were given an opportunity 35 to be heard; and 36 37 WHEREAS, after considering the facts presented to the Council, the Council finds (i) the 38 Mayor, or her designee, should be authorized to execute an interlocal agreement with the County 39 regarding CRF monies; and (iii) said agreement reasonably furthers the health, safety and general 40 welfare of the citizens of Provo. 41 42 NOW, THEREFORE, be it resolved the Council of Provo City, Utah, as follows: 43 44 PART I: 45 46 1. The Mayor, or her designee, is authorized to execute on behalf of the City an interlocal 47 agreement with the County regarding CRF monies in form substantially similar to the draft 48 attached hereto as Exhibit A. The Mayor is authorized to negotiate such changes to the 49 draft as deemed necessary to achieve proper legal form or to ensure Provo shall be enabled 50 to receive and use the maximum amount of CRF monies possible. 51 52 2. The Interlocal Agreement shall be effective immediately upon execution. 53 54 3. Pursuant to Utah Code Section 11-13-202.5, as amended, the Interlocal Agreement shall 55 be submitted to legal counsel of the City for review and signature indicating approval as to 56 proper form and compliance with applicable law. 57 58 4. Pursuant to Utah Code Section 11-13-219(3)(c)(ii), as amended, this resolution and the 59 Interlocal Agreement shall be available at the office of the City Recorder located at 351 60 West Center Street, Provo, Utah, during regular business hours for 30 days after the 61 publication of the notice, if any, of this resolution and/or the Interlocal Agreement pursuant 62 to Section 11-13-219. 63 64 PART II: 65 66 This resolution shall take effect immediately. 67 68 END OF RESOLUTION. 69 Exhibit A
INTERLOCAL COOPERATION AGREEMENT BETWEEN UTAH COUNTY AND LOCAL ENTITY FOR DISBURSEMENT FROM THE CORONAVIRUS RELIEF FUND
THIS IS AN INTERLOCAL COOPERATION AGREEMENT (“Agreement”) effective the 15th day of June, 2020 by and between Utah County, a political subdivision of the State of Utah (“County”) and Provo City , a political subdivision of the State of Utah (“Recipient”) (collectively “parties”). WITNESSETH: WHEREAS, pursuant to the provisions of the Interlocal Cooperation Act (“Interlocal Act”), Title 11, Chapter 13, Utah Code Annotated, 1953 as amended, public agencies, including political subdivisions of the State of Utah as therein defined, are authorized to enter into written agreements with one another for joint or cooperative action; and
WHEREAS, pursuant to the Interlocal Act, the parties desire to work together through joint and cooperative action that will benefit the residents of Recipient and County; and
WHEREAS, the parties to this Agreement are public agencies as defined in the Interlocal Act; and
WHEREAS, earlier this year the United States of America began battling a public health emergency known as Coronavirus Disease 2019 (“COVID-19”). On March 27, 2020 and in response to COVID-19, President Trump signed the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”); and
WHEREAS, the Federal Government provided $1.25 billion to Utah state and local governments through the Coronavirus Relief Fund (“CRF”) included in section 5001 of the CARES Act. Based on the distribution formula in the CARES Act, $934.8 million was paid to the State of Utah (“State”), $203.6 million was paid directly to Salt Lake County, and $111.6 million was paid directly to Utah County (the “County Allocation”). State and local governments can only use the CRF payments to respond to the COVID-19 pandemic. While the County is not required to distribute a portion of its $111.6 million payment to local entities, the County Commission have elected to share a portion with local entities within Utah County; and
WHEREAS, the CARES Act provides that payments from CRF may only be used to cover costs that: (1) are necessary expenditures incurred due to the public health emergency with respect to COVID–19, (2) were not accounted for in the budget most recently approved as of March 27, 2020 (the date of enactment of the CARES Act) for the State or local government; and (3) were incurred during the period that begins on March 1, 2020, and ends on December 30, 2020; and
NOW, THEREFORE, the parties do mutually agree, pursuant to the terms and provisions of the Interlocal Act, as follows:
Section 1. EFFECTIVE DATE; DURATION This Agreement shall become effective and shall enter into force, within the meaning of the Interlocal Act, upon the submission of this Agreement to, and the approval and execution thereof by Resolution of the governing bodies of each of the parties to this Page 3 of 16
Agreement. The term of this Agreement shall be from the effective date hereof through December 31, 2020. This Agreement shall not become effective until it has been reviewed and approved as to form and compatibility with the laws of the State of Utah by the Utah County Attorney’s Office and the attorney for Recipient. Prior to becoming effective, this Agreement shall be filed with the person who keeps the records of each of the parties hereto.
Section 2. ADMINISTRATION OF AGREEMENT The parties to this Agreement do not contemplate nor intend to establish a separate legal entity under the terms of this Agreement. The parties hereto agree that, pursuant to Section 11-13- 207, Utah Code Annotated, 1953 as amended, County, shall act as the administrator responsible for the administration of this Agreement. The parties further agree that this Agreement does not anticipate nor provide for any organizational changes in the parties. The administrator agrees to keep all books and records in such form and manner as the Utah County Clerk/Auditor shall specify and further agrees that said books shall be open for examination by the parties hereto at all reasonable times.
Section 3. PURPOSE This Agreement has been established and entered into between the County and Recipient to provide CRF funds to the Recipient from the County Allocation to respond to the COVID-19 pandemic. Page 4 of 16
Section 4. CRF FUNDING AMOUNTS 1. From the County Allocation, $20 million will be set aside for economic support, to be overseen and recommended by a seven-member committee chosen by the Council of Governments (“COG”) within Utah County and then allocated by the County in accordance with the recommendation. This $20 million shall be known as “Part 1” of the County Allocation and shall only be expended as authorized by the CARES Act including the costs incurred by County to administer this Part 1. This seven-member committee shall comply with the Utah Open and Public Meetings Act, Utah Code, Title 52, Chapter 4. 2. From the County Allocation, $45,815,170.95 will be set aside for eligible recipients who may receive an allocation up to the maximum amount listed in the Available Funds for Cities and Unincorporated County document attached hereto as Exhibit “A” and incorporated herein by this reference. This $45,815,170.95 shall be known as “Part 2” of the County Allocation. This amount may be subject to revision by the County due to federal mandate or by an order of a court of law. If Recipient places any CRF funds in an interest-bearing account, Recipient must expend the interest earned on CRF funds in accordance with the requirements of the CARES Act or return the interest earned to County. If Recipient received funds to reimburse or otherwise cover the costs of permissible expenditures, as described in Section 5, from any other sources other than the County Allocation, then Recipient shall provide an accounting to County of all such funds from the other sources and repay to County such funds up to an amount equal to the Recipient’s portion of the County’s Allocation. Recipient acknowledges that it shall receive no funds from the County outside of those CRF funds in the County Allocation. 3. From the County Allocation, $45,815,170.95 will be set aside for the County. This $45,815,170.95 shall be known as “Part 3” of the County Allocation.
Section 5. PERMISSIBLE USE OF CRF FUNDING The CARES Act and additional guidance issues by the United States Treasury Department provides that CRF funds may only be used to cover costs that meet the following conditions:
1. are necessary expenditures incurred due to the public health emergency with respect to the Coronavirus Disease 2019 (COVID–19); a. The requirement that expenditures be incurred “due to” the public health emergency means that expenditures must be used for actions taken to respond to the public health emergency. b. CRF Funds may NOT be used to fill shortfalls in government revenue to cover expenditures that would not otherwise qualify under the statute.
c. The expenditure is reasonably necessary for its intended use in the reasonable judgment of the government officials responsible for spending the CRF funds.
2. were not accounted for in the budget most recently approved as of March 27, 2020 (the date of enactment of the CARES Act) for the Recipient; and a. A cost meets this requirement if either (a) the cost cannot lawfully be funded using a line item, allotment, or allocation within that budget or (b) the cost is for a substantially different use from any expected use of CRF funds in such a line item, allotment, or allocation.
b. The “most recently approved” budget refers to the enacted budget for the relevant fiscal period for the Recipient, without taking into account subsequent supplemental appropriations enacted or other budgetary adjustments made by the Recipient in response to the COVID-19 public health emergency.
c. A cost is not considered to have been accounted for in a budget merely because it could be met using a budgetary stabilization fund, rainy day fund, or similar reserve account. a. A cost is “incurred” when the Recipient has expended funds to cover the cost.
3. were incurred during the period that begins on March 1, 2020, and ends on December 30, 2020.
These provisions and guidance are current as of May 26, 2020. The Recipients accepting funds must agree to adhere to any additional current or future Federal or State legislative guidance regarding spending, reporting, or any other matter related to CRF funds. Further, the Recipients shall require that any subgrantee to which it awards CRF funds adhere to the CARES Act and any current or future guidance related to the CRF funds. Federal guidance has been updated regularly and can be found at https://home.treasury.gov/policy-issues/cares/state-and-local-governments.
Section 6. TIME PERIOD The Recipient has until November 2, 2020 to expend the CRF funds and provide the necessary documentation of the expenditure of the CRF funds to County. CRF funds provided by the County that are not expended on eligible expenditures on or before November 2, 2020, must be returned to the County on or before 5:00 P.M. MST, November 9, 2020, so that the County will have time to reallocate and expend the funds before they expire on December 30, 2020. The Recipient may petition the County to retain allocated, but unspent CRF funds, after the November 2, 2020 date, with approval from the County. Any requests for exceptions shall be emailed to Peter Brown, Finance Manager COVID Project, in the Utah County Clerk/Auditor’s Office, [email protected], before 5:00 P.M. MST, November 2, 2020.
Section 7. REPORTING ON USE OF CRF FUNDS The Recipient shall retain documentation related to any uses of the CRF funds, including but not limited to invoices and/or sales receipts. All payroll expenditures must illustrate compliance with CARES Act by detailed, daily documentation. Any subgrants made by the Recipient shall similarly require, as a term of the grant, that the subgrantee shall retain documentation and shall produce such documentation to the Recipient and the County upon request. Consistent with County’s responsibilities for the management of CARES funds distributed to it and in accordance with being subject to the Federal Single Audit Act, Recipient shall be prepared to submit receipts and HR records if requested in connection with an audit. All receipts should be individually accompanied (either physically or by PO number) by an explanation form that will be provided by the County that will need to explain how the expenses respond to the “reasonably necessary” justification of the CARES Act Coronavirus Relief Fund (CFR). The Recipient is required to report CRF expenditures at the detailed transaction level on a quarterly basis or data uploaded to Transparent Utah if available for use by County and Recipient. CRF Funds will be identified using function codes specified for these CRF funds in the Uniform Chart of Accounts for Local Government of Utah (revised June 2020) and related resources provided by the Office of the State Auditor. The Recipient is also required to provide summary and detailed documentation supporting the use of CRF Funds upon request of County, state, federal, or independent auditors. The County may request additional reporting if necessary.
Section 8. ACCOUNTABILITY FOR THE USE OF CRF FUNDS If County, state, or federal audit findings determine that any CRF funds were expended by the Recipient in violation of the requirements of the CARES Act and request repayment of those CRF funds, the Recipient shall provide funds to the County for repayment to the Federal Government as required by the CARES Act. If the County is forced to repay the funds because the Recipient is unwilling or unable to repay the funds, the amount paid by the County will become a past due obligation of the Recipient to the County and may be collected as such.
Section 9. AVAILABILITY OF CRF FUNDS It is expressly understood and agreed that the obligation of the County to proceed under this Agreement is conditioned upon the availability of CRF funds remaining in the County Allocation. If the CRF funds anticipated for the continuing fulfillment of the Agreement from the County Allocation are, at any time, not forthcoming or insufficient, either through the failure of the Federal government to provide or if CRF funds are not otherwise available to the County, the County shall have the right upon ten (10) working days written notice to the Recipient, to terminate this Agreement without damage, penalty, cost, or expense to the Recipient of any kind whatsoever. The effective date of termination shall be as specified in the notice of termination. It is also expressly understood and agreed that any disbursement of CRF funds to Page 9 of 16
Recipient shall be considered an advance payment from County to Recipient subject to repayment of those CRF funds. Recipient shall either submit to County the appropriate justification documents of funds under the CARES Act or repay the CRF funds to the County. If the Recipient is unwilling or unable to repay any portion of the CRF funds which are not expended as required herein, that amount of the CRF funds will become a past due obligation of the Recipient to the County and may be collected as such.
Section 10. METHOD OF TERMINATION This Agreement will automatically terminate at the end of its term herein, pursuant to the provisions of paragraph one (1) of this Agreement. Prior to the automatic termination at the end of the term of this Agreement, any party to this Agreement may terminate the Agreement sixty (60) days after providing written notice of termination to the other party. The Parties of this Agreement agree to bring current, prior to termination, any financial obligation incurred in the exercise of its rights and obligations set forth herein.
Section 11. INDEMNIFICATION To the fullest extent permitted by law, Recipient shall indemnify and hold harmless County, its officers, employees, and agents, from and against any and all claims, demands, causes of action, audits, orders, decrees, judgements, losses, risks of loss, damages, expenses, and liabilities arising out of or related to the Agreement. Recipient shall also pay any litigation and appeal expenses that County incurs, including attorney’s fees, penalties, and interest arising out of or related to the Agreement. Recipient shall assume sole liability for any injuries or damages caused to a third party as a result of fulfillment of the Agreement. Recipient is not responsible for other Recipient’s or County’s misuse of Parts 2 and 3 of the County Allocation. County reserves the right to conduct, control, and direct its own defense for any claims, demands, causes of action, audits, orders, decrees, judgements, losses, damages, expenses, and liabilities arising out of or related to the Agreement. Both Recipient and County agree that the terms of this Agreement are subject to, and not a waiver of, the protections, immunities and liability limits of the Governmental Immunity Act, U.C.A. 63G-1-101, et. seq. Recipient’s obligations under this provision shall survive the expiration or other termination of this Agreement.
Section 12. FILING OF INTERLOCAL COOPERATION AGREEMENT Executed copies of this Agreement shall be placed on file in the office of the County Clerk/Auditor of County and with the official keeper of records of Recipient and shall remain on file for public inspection during the term of this Agreement.
Section 13. ADOPTION REQUIREMENTS This Agreement shall be (a) approved by Resolution of the governing body of each of the parties, (b) executed by a duly authorized official of each of the parties (c) submitted to and approved by an Authorized Attorney of each of the parties, as required by Section 11-13-202.5, Utah Code Annotated, 1953 as amended, and (d) filed in the official records of each party.
Section 14. AMENDMENTS This Agreement may not be amended, changed, modified or altered except by an instrument in writing which shall be (a) approved by Resolution of the governing body of each of the parties, (b) executed by a duly authorized official of each of the parties, (c) submitted to and approved by an Authorized Attorney of each of the parties, as required by Section 11-13-205.5, Utah Code Annotated, 1953 as amended, and (d) filed in the official records of each party.
Section 15. SEVERABILITY If any term or provision of the Agreement or the application thereof shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those with respect to which it is invalid or unenforceable, shall not be affected thereby, and shall be enforced to the extent permitted by law. To the extent permitted by applicable law, the parties hereby waive any provision of law which would render any of the terms of this Agreement unenforceable.
Section 16. NO PRESUMPTION Should any provision of this Agreement require judicial interpretation, the Court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against the party, by reason of the rule of construction that a document is to be construed more strictly against the person who himself or through his agents prepared the same, it being acknowledged that each of the parties have participated in the preparation hereof.
Section 17. HEADINGS Headings herein are for convenience of reference only and shall not be considered any interpretation of the Agreement.
Section 18. BINDING AGREEMENT
This Agreement shall be binding upon the heirs, successors, administrators, and assigns of each of the parties hereto.
Section 19. NOTICES All notices, demands and other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been properly given if delivered by hand or by certified mail, return receipt requested, postage paid, to the parties at their addresses first above written, or at such other addresses as may be designated by notice given hereunder.
Section 20. ASSIGNMENT The parties to this Agreement shall not assign this Agreement, or any part hereof, without the prior written consent of all other parties to this Agreement. No assignment shall relieve the original parties from any liability hereunder.
Section 21. GOVERNING LAW All questions with respect to the construction of this Agreement, and the rights and liability of the parties hereto, shall be governed by the laws of the State of Utah.
Section 22. COUNTERPARTS AND FACSIMILE SIGNATURES The Agreement may be executed in counterparts, each of which when executed and delivered shall be deemed to be an original, binding between the executing parties, and all of which together constitute one and the same instrument. Original, facsimile, emailed, texted, electronic, or power of attorney signatures shall be binding upon the executing party. Page 13 of 16
Section 23. SUB-RECIPIENT REQUIREMENTS By virtue of terms and conditions of the Single Audit Act (31 U.S.C. §§ 7501-7507) and the related provisions of the Uniform Guidance, 2 C.F.R. § 200.303 regarding internal controls, §§ 200.330 through 200.332 regarding subrecipient monitoring and management, and subpart F regarding audit requirements. CRF funds received through this Agreement make Recipient a sub- recipient of the federal grant. As Recipient is a Sub-recipient of the grant monies, and as such, shall have no authorization, express or implied, to bind County to any agreements, settlements, liability, or understanding whatsoever, and agrees not to perform any acts as agent for the County, except as herein expressly set forth. Recipient as Sub-recipient shall be responsible for the payment of all income tax and social security amounts due as a result of CRF funds received from the County for these necessary COVID-19 related purchases. Persons employed by the County and acting under the direction of the County shall not be deemed to be employees or agents of Recipient. a) All Recipient’s records with respect to any matters covered by this Agreement shall be made available to the County, State of Utah, and the Comptroller General of the United States or any of their authorized representatives. b) Failure of Recipient to comply with the above requirements will constitute a violation of this Agreement and may result in the withholding of future payments. c) Local governments or non-profit organizations that expend $750,000 or more in total federal financial assistance (from all sources) in the Recipient's fiscal year shall have a Single Audit completed. d) All Sub-recipient's, regardless of Single Audit eligibility, will make all pertinent financial records available for review, monitoring or audit, in a timely manner to appropriate officials of the federal granting agency, State of Utah, County and/or the General Accounting Office. e) To comply with 2 C.F.R. § 200.331 the County as the pass-through entity is providing the following required information:
Subrecipient Name Provo City Subrecipient DUNS number [City DUNS] Federal Award Identification Number Not Available Federal Award Date March 27, 2020 Subaward Period of Performance Start & March 1, 2020 – December 30, 2020 End Date Amount of Federal Funds Obligated by this $8,455,459.75 action by the County to the Subrecipient Total Amount of Federal Funds Obligated $8,455,459.75 to the Subrecipient by the County including the current obligation Total Amount of the Federal Award $8,455,459.75 committed to the Subrecipient by the County Federal award project description Project description: Through this subaward, Utah County will provide Covid-19 relief funding for direct support for cities in Utah County, direct support relating to expenditures “reasonably necessary” to help combat the spread of Covid-19. Name of Federal awarding agency United States Department of the Treasury Name of pass-through entity Utah County Government Contact information for awarding official Utah County Auditor’s Office of the pass-through entity Attn: Peter Brown, CARES Act Finance Manager 100 East Center Street, Suite 3600 Provo, UT 84606 Phone: 801.851.8222 Email: [email protected] CFDA Number and Name 21.019 Is the award for Research and No Development? Indirect cost rate for the Federal award None
Agreement No. 2020-
INTERLOCAL COOPERATION AGREEMENT BETWEEN UTAH COUNTY AND LOCAL ENTITY FOR DISBURSEMENT FROM THE CORONAVIRUS RELIEF FUND
THIS IS AN INTERLOCAL COOPERATION AGREEMENT (“Agreement”) effective the 15th day of June, 2020 by and between Utah County, a political subdivision of the State of Utah (“County”) and Provo City , a political subdivision of the
State of Utah (“Recipient”) (collectively “parties”).
WITNESSETH:
WHEREAS, pursuant to the provisions of the Interlocal Cooperation Act (“Interlocal
Act”), Title 11, Chapter 13, Utah Code Annotated, 1953 as amended, public agencies, including political subdivisions of the State of Utah as therein defined, are authorized to enter into written agreements with one another for joint or cooperative action; and
WHEREAS, pursuant to the Interlocal Act, the parties desire to work together through joint and cooperative action that will benefit the residents of Recipient and County; and
WHEREAS, the parties to this Agreement are public agencies as defined in the Interlocal Act; and WHEREAS, earlier this year the United States of America began battling a public health emergency known as Coronavirus Disease 2019 (“COVID-19”). On March 27, 2020 and in response to COVID-19, President Trump signed the Coronavirus Aid, Relief and Economic
Security Act (“CARES Act”); and
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WHEREAS, the Federal Government provided $1.25 billion to Utah state and local
governments through the Coronavirus Relief Fund (“CRF”) included in section 5001 of the
CARES Act. Based on the distribution formula in the CARES Act, $934.8 million was paid to the
State of Utah (“State”), $203.6 million was paid directly to Salt Lake County, and $111.6 million
was paid directly to Utah County (the “County Allocation”). State and local governments can only
use the CRF payments to respond to the COVID-19 pandemic. While the County is not required
to distribute a portion of its $111.6 million payment to local entities, the County Commission have
elected to share a portion with local entities within Utah County; and
WHEREAS, the CARES Act provides that payments from CRF may only be used to
cover costs that: (1) are necessary expenditures incurred due to the public health emergency with
respect to COVID–19, (2) were not accounted for in the budget most recently approved as of
March 27, 2020 (the date of enactment of the CARES Act) for the State or local government; and
(3) were incurred during the period that begins on March 1, 2020, and ends on December 30,
2020; and
NOW, THEREFORE, the parties do mutually agree, pursuant to the terms and provisions
of the Interlocal Act, as follows:
Section 1. EFFECTIVE DATE; DURATION
This Agreement shall become effective and shall enter into force, within the meaning of the Interlocal Act, upon the submission of this Agreement to, and the approval and execution thereof by Resolution of the governing bodies of each of the parties to this
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Agreement. The term of this Agreement shall be from the effective date hereof through
December 31, 2020.
This Agreement shall not become effective until it has been reviewed and approved as to form and compatibility with the laws of the State of Utah by the Utah County Attorney’s Office and the attorney for Recipient. Prior to becoming effective, this Agreement shall be filed with the person who keeps the records of each of the parties hereto.
Section 2. ADMINISTRATION OF AGREEMENT
The parties to this Agreement do not contemplate nor intend to establish a separate legal
entity under the terms of this Agreement. The parties hereto agree that, pursuant to Section
11-13-207, Utah Code Annotated, 1953 as amended, County, shall act as the administrator
responsible for the administration of this Agreement. The parties further agree that this
Agreement does not anticipate nor provide for any organizational changes in the parties. The
administrator agrees to keep all books and records in such form and manner as the Utah County
Clerk/Auditor shall specify and further agrees that said books shall be open for examination by the
parties hereto at all reasonable times.
Section 3. PURPOSE
This Agreement has been established and entered into between the County and Recipient
to provide CRF funds to the Recipient from the County Allocation to respond to the COVID-
19 pandemic.
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Section 4. CRF FUNDING AMOUNTS
1. From the County Allocation, $20 million will be set aside for economic support, to be
overseen and recommended by a seven-member committee chosen by the Council of
Governments (“COG”) within Utah County and then allocated by the County in accordance
with the recommendation. This $20 million shall be known as “Part 1” of the County
Allocation and shall only be expended as authorized by the CARES Act including the costs
incurred by County to administer this Part 1. This seven-member committee shall comply
with the Utah Open and Public Meetings Act, Utah Code, Title 52, Chapter 4.
2. From the County Allocation, $45,815,170.95 will be set aside for eligible recipients who may
receive an allocation up to the maximum amount listed in the Available Funds for Cities and
Unincorporated County document attached hereto as Exhibit “A” and incorporated herein by
this reference. This $45,815,170.95 shall be known as “Part 2” of the County Allocation.
This amount may be subject to revision by the County due to federal mandate or by an order
of a court of law. If Recipient places any CRF funds in an interest-bearing account, Recipient
must expend the interest earned on CRF funds in accordance with the requirements of the
CARES Act or return the interest earned to County. If Recipient received funds to reimburse
or otherwise cover the costs of permissible expenditures, as described in Section 5, from any
other sources other than the County Allocation, then Recipient shall provide an accounting
to County of all such funds from the other sources and repay to County such funds up to an
amount equal to the Recipient’s portion of the County’s Allocation. Recipient acknowledges
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that it shall receive no funds from the County outside of those CRF funds in the County
Allocation.
3. From the County Allocation, $45,815,170.95 will be set aside for the County. This
$45,815,170.95 shall be known as “Part 3” of the County Allocation.
Section 5. PERMISSIBLE USE OF CRF FUNDING
The CARES Act and additional guidance issues by the United States Treasury Department provides that CRF funds may only be used to cover costs that meet the following conditions:
1. are necessary expenditures incurred due to the public health emergency with respect to the
Coronavirus Disease 2019 (COVID–19);
a. The requirement that expenditures be incurred “due to” the public health emergency
means that expenditures must be used for actions taken to respond to the public health
emergency.
b. CRF Funds may NOT be used to fill shortfalls in government revenue to cover
expenditures that would not otherwise qualify under the statute.
c. The expenditure is reasonably necessary for its intended use in the reasonable judgment
of the government officials responsible for spending the CRF funds.
2. were not accounted for in the budget most recently approved as of March 27, 2020 (the date of
enactment of the CARES Act) for the Recipient; and
a. A cost meets this requirement if either (a) the cost cannot lawfully be funded using a line
item, allotment, or allocation within that budget or (b) the cost is for a substantially
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different use from any expected use of CRF funds in such a line item, allotment, or
allocation.
b. The “most recently approved” budget refers to the enacted budget for the relevant fiscal
period for the Recipient, without taking into account subsequent supplemental
appropriations enacted or other budgetary adjustments made by the Recipient in response
to the COVID-19 public health emergency.
c. A cost is not considered to have been accounted for in a budget merely because it could
be met using a budgetary stabilization fund, rainy day fund, or similar reserve account.
3. were incurred during the period that begins on March 1, 2020, and ends on December 30, 2020.
a. A cost is “incurred” when the Recipient has expended funds to cover the cost.
These provisions and guidance are current as of May 26, 2020. The Recipients accepting funds must agree to adhere to any additional current or future Federal or State legislative guidance regarding spending, reporting, or any other matter related to CRF funds. Further, the Recipients shall require that any subgrantee to which it awards CRF funds adhere to the CARES Act and any current or future guidance related to the CRF funds. Federal guidance has been updated regularly and can be found at https://home.treasury.gov/policy-issues/cares/state-and-local-governments.
Section 6. TIME PERIOD
The Recipient has until November 2, 2020 to expend the CRF funds and provide the necessary documentation of the expenditure of the CRF funds to County. CRF funds provided by the County that are not expended on eligible expenditures on or before November 2, 2020, must be returned to the County on or before 5:00 P.M. MST, November 9, 2020, so that the County will have time to reallocate and expend the funds before they expire on December 30, 2020. The Recipient
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may petition the County to retain allocated, but unspent CRF funds, after the November 2, 2020 date, with approval from the County. Any requests for exceptions shall be emailed to Peter Brown, Finance
Manager COVID Project, in the Utah County Clerk/Auditor’s Office, [email protected], before 5:00 P.M. MST, November 2, 2020.
Section 7. REPORTING ON USE OF CRF FUNDS
The Recipient shall retain documentation related to any uses of the CRF funds, including but not limited to invoices and/or sales receipts. All payroll expenditures must illustrate compliance with CARES Act by detailed, daily documentation. Any subgrants made by the Recipient shall similarly require, as a term of the grant, that the subgrantee shall retain documentation and shall produce such documentation to the Recipient and the County upon request.
Consistent with County’s responsibilities for the management of CARES funds distributed to it and in accordance with being subject to the Federal Single Audit Act, Recipient shall be prepared to submit receipts and HR records if requested in connection with an audit. All receipts should be individually accompanied (either physically or by PO number) by an explanation form that will be provided by the County that will need to explain how the expenses respond to the “reasonably necessary” justification of the CARES Act Coronavirus Relief Fund (CFR). The Recipient is required to report CRF expenditures at the detailed transaction level on a quarterly basis or data uploaded to
Transparent Utah if available for use by County and Recipient. CRF Funds will be identified using function codes specified for these CRF funds in the Uniform Chart of Accounts for Local
Government of Utah (revised June 2020) and related resources provided by the Office of the State
Auditor. The Recipient is also required to provide summary and detailed documentation supporting
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the use of CRF Funds upon request of County, state, federal, or independent auditors. The County may request additional reporting if necessary.
Section 8. ACCOUNTABILITY FOR THE USE OF CRF FUNDS
If County, state, or federal audit findings determine that any CRF funds were expended by the Recipient in violation of the requirements of the CARES Act and request repayment of those
CRF funds, the Recipient shall provide funds to the County for repayment to the Federal Government as required by the CARES Act. If the County is forced to repay the funds because the Recipient is unwilling or unable to repay the funds, the amount paid by the County will become a past due obligation of the Recipient to the County and may be collected as such.
Section 9. AVAILABILITY OF CRF FUNDS
It is expressly understood and agreed that the obligation of the County to proceed under this
Agreement is conditioned upon the availability of CRF funds remaining in the County Allocation.
If the CRF funds anticipated for the continuing fulfillment of the Agreement from the County
Allocation are, at any time, not forthcoming or insufficient, either through the failure of the Federal government to provide or if CRF funds are not otherwise available to the County, the County shall have the right upon ten (10) working days written notice to the Recipient, to terminate this
Agreement without damage, penalty, cost, or expense to the Recipient of any kind whatsoever. The effective date of termination shall be as specified in the notice of termination.
It is also expressly understood and agreed that any disbursement of CRF funds to
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Recipient shall be considered an advance payment from County to Recipient subject to repayment of those CRF funds. Recipient shall either submit to County the appropriate justification documents of funds under the CARES Act or repay the CRF funds to the County. If the Recipient is unwilling or unable to repay any portion of the CRF funds which are not expended as required herein, that amount of the CRF funds will become a past due obligation of the Recipient to the
County and may be collected as such.
Section 10. METHOD OF TERMINATION
This Agreement will automatically terminate at the end of its term herein, pursuant to the
provisions of paragraph one (1) of this Agreement. Prior to the automatic termination at the end
of the term of this Agreement, any party to this Agreement may terminate the Agreement sixty
(60) days after providing written notice of termination to the other party. The Parties of this
Agreement agree to bring current, prior to termination, any financial obligation incurred in the
exercise of its rights and obligations set forth herein.
Section 11. INDEMNIFICATION
To the fullest extent permitted by law, Recipient shall indemnify and hold harmless
County, its officers, employees, and agents, from and against any and all claims, demands, causes
of action, audits, orders, decrees, judgements, losses, risks of loss, damages, expenses, and
liabilities arising out of or related to the Agreement. Recipient shall also pay any litigation and
appeal expenses that County incurs, including attorney’s fees, penalties, and interest arising out of
or related to the Agreement. Recipient shall assume sole liability for any injuries or damages
caused to a third party as a result of fulfillment of the Agreement. Recipient is not responsible for
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other Recipient’s or County’s misuse of Parts 2 and 3 of the County Allocation. County reserves the right to conduct, control, and direct its own defense for any claims, demands, causes of action, audits, orders, decrees, judgements, losses, damages, expenses, and liabilities arising out of or related to the Agreement. Both Recipient and County agree that the terms of this Agreement are subject to, and not a waiver of, the protections, immunities and liability limits of the
Governmental Immunity Act, U.C.A. 63G-1-101, et. seq. Recipient’s obligations under this provision shall survive the expiration or other termination of this Agreement.
Section 12. FILING OF INTERLOCAL COOPERATION AGREEMENT
Executed copies of this Agreement shall be placed on file in the office of the County
Clerk/Auditor of County and with the official keeper of records of Recipient and shall remain on file for public inspection during the term of this Agreement.
Section 13. ADOPTION REQUIREMENTS
This Agreement shall be (a) approved by Resolution of the governing body of each of the parties, (b) executed by a duly authorized official of each of the parties (c) submitted to and approved by an Authorized Attorney of each of the parties, as required by Section 11-13-202.5,
Utah Code Annotated, 1953 as amended, and (d) filed in the official records of each party.
Section 14. AMENDMENTS
This Agreement may not be amended, changed, modified or altered except by an instrument in writing which shall be (a) approved by Resolution of the governing body of each of the parties, (b) executed by a duly authorized official of each of the parties, (c) submitted to and
Page 10 of 16
approved by an Authorized Attorney of each of the parties, as required by Section 11-13-205.5,
Utah Code Annotated, 1953 as amended, and (d) filed in the official records of each party.
Section 15. SEVERABILITY
If any term or provision of the Agreement or the application thereof shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those with respect to which it is invalid or unenforceable, shall not be affected thereby, and shall be enforced to the extent permitted by law. To the extent permitted by applicable law, the parties hereby waive any provision of law which would render any of the terms of this Agreement unenforceable.
Section 16. NO PRESUMPTION
Should any provision of this Agreement require judicial interpretation, the Court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against the party, by reason of the rule of construction that a document is to be construed more strictly against the person who himself or through his agents prepared the same, it being acknowledged that each of the parties have participated in the preparation hereof.
Section 17. HEADINGS
Headings herein are for convenience of reference only and shall not be considered any interpretation of the Agreement.
Section 18. BINDING AGREEMENT
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This Agreement shall be binding upon the heirs, successors, administrators, and assigns of
each of the parties hereto.
Section 19. NOTICES
All notices, demands and other communications required or permitted to be given
hereunder shall be in writing and shall be deemed to have been properly given if delivered by hand
or by certified mail, return receipt requested, postage paid, to the parties at their addresses first
above written, or at such other addresses as may be designated by notice given hereunder.
Section 20. ASSIGNMENT
The parties to this Agreement shall not assign this Agreement, or any part hereof, without
the prior written consent of all other parties to this Agreement. No assignment shall relieve the
original parties from any liability hereunder.
Section 21. GOVERNING LAW
All questions with respect to the construction of this Agreement, and the rights and liability of the parties hereto, shall be governed by the laws of the State of Utah.
Section 22. COUNTERPARTS AND FACSIMILE SIGNATURES
The Agreement may be executed in counterparts, each of which when executed and delivered shall be deemed to be an original, binding between the executing parties, and all of which together constitute one and the same instrument. Original, facsimile, emailed, texted, electronic, or power of attorney signatures shall be binding upon the executing party.
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Section 23. SUB-RECIPIENT REQUIREMENTS
By virtue of terms and conditions of the Single Audit Act (31 U.S.C. §§ 7501-7507) and the related provisions of the Uniform Guidance, 2 C.F.R. § 200.303 regarding internal controls, §§
200.330 through 200.332 regarding subrecipient monitoring and management, and subpart F regarding audit requirements. CRF funds received through this Agreement make Recipient a sub- recipient of the federal grant.
As Recipient is a Sub-recipient of the grant monies, and as such, shall have no authorization, express or implied, to bind County to any agreements, settlements, liability, or understanding whatsoever, and agrees not to perform any acts as agent for the County, except as herein expressly set forth. Recipient as Sub-recipient shall be responsible for the payment of all income tax and social security amounts due as a result of CRF funds received from the County for these necessary COVID-19 related purchases. Persons employed by the County and acting under the direction of the County shall not be deemed to be employees or agents of Recipient.
a) All Recipient’s records with respect to any matters covered by this Agreement shall be
made available to the County, State of Utah, and the Comptroller General of the United
States or any of their authorized representatives.
b) Failure of Recipient to comply with the above requirements will constitute a violation of
this Agreement and may result in the withholding of future payments.
c) Local governments or non-profit organizations that expend $750,000 or more in total
federal financial assistance (from all sources) in the Recipient's fiscal year shall have a
Single Audit completed.
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d) All Sub-recipient's, regardless of Single Audit eligibility, will make all pertinent financial
records available for review, monitoring or audit, in a timely manner to appropriate officials
of the federal granting agency, State of Utah, County and/or the General Accounting Office. e) To comply with 2 C.F.R. § 200.331 the County as the pass-through entity is providing the
following required information:
Subrecipient Name Provo City Subrecipient DUNS number [City DUNS] Federal Award Identification Number Not Available Federal Award Date March 27, 2020 Subaward Period of Performance Start & End Date March 1, 2020 – December 30, 2020 Amount of Federal Funds Obligated by this action $8,455,459.75 by the County to the Subrecipient Total Amount of Federal Funds Obligated to the Subrecipient by the County including the current $8,455,459.75 obligation Total Amount of the Federal Award committed to $8,455,459.75 the Subrecipient by the County Project description: Through this subaward, Utah County will provide Covid-19 relief funding for direct Federal award project description support for cities in Utah County, direct support relating to expenditures “reasonably necessary” to help combat the spread of Covid-19. United States Department of the Name of Federal awarding agency Treasury Name of pass-through entity Utah County Government Utah County Auditor’s Office Attn: Peter Brown, CARES Act Finance Manager Contact information for awarding official of the 100 East Center Street, Suite 3600 pass-through entity Provo, UT 84606 Phone: 801.851.8222 Email: [email protected] CFDA Number and Name 21.019 Is the award for Research and Development? No Indirect cost rate for the Federal award None
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Nothing contained in this Agreement is intended to, nor shall be construed in any manner, as creating or establishing the relationship of employer/employee between the parties.
Recipient as Sub-recipient shall at all times remain an "independent contractor" with respect to the services to be performed under this Agreement. County shall be exempt from payment of all
Unemployment Compensation, FICA, retirement, life and/or medical insurance and Workers'
Compensation Insurance, as the Sub-recipient is an independent contractor.
UTAH COUNTY
Authorized by Resolution No. 2020- , authorized and passed on the day of
, 2020. BOARD OF COUNTY COMMISSIONERS UTAH COUNTY, UTAH
By: NATHAN IVIE, Vice-Chair ATTEST: AMELIA POWERS GARDNER Utah County Clerk/Auditor By: Deputy APPROVED AS TO FORM AND COMPATIBILITY WITH THE LAWS OF THE STATE OF UTAH: DAVID O. LEAVITT Utah County Attorney By: Deputy County Attorney
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RECIPIENT
Authorized by Resolution No. , authorized and passed on the day of
, 2020.
By: MAYOR ATTEST: City/Town Recorder
APPROVED AS TO FORM AND COMPATIBILITY WITH THE LAWS OF THE STATE OF UTAH:
City/Town Attorney
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PROVO MUNICIPAL COUNCIL STAFF REPORT
Submitter: WAYNEP Department: Mayor Office Requested Meeting Date: 01-01-2018
SUBJECT: Interlocal Agreement with Utah County on CARES Act Funding
RECOMMENDATION: Request the Council approve a resolution authorizing the Mayor to execute an interlocal agreement with Utah County related to the City's CARES Act funding allocation
BACKGROUND: The City has received an allocation under the CARES Act from Utah County for expenses and projects related to the impact of Covid-19 on citizens and city operations. The Administration would like to revview the proposed agreement with the County and the projects the Administration intends to undertake with the allocated funding. I have uploaded several documents and will have one or two more in the next day or two to provide more background.
FISCAL IMPACT: $8,445,460 will be received from Utah County for Covid-19 related expenses authorized under the CARES Act
PRESENTER’S NAME: Wayne Parker
REQUESTED DURATION OF PRESENTATION: 45 minutes in work meeting
COMPATIBILITY WITH GENERAL PLAN POLICIES, GOALS, AND OBJECTIVES:
CITYVIEW OR ISSUE FILE NUMBER: 20-108
1 As of 7/28/2020 Initial Review Date Dept/Division Proposal # Proposal Category Proposal Name Amount Requested Priority Rec for Approval? Eligibility/Finance Approved by Mayor Notes 6/18/2020 Dispatch 001 PPE ThermMasksCleaning $4,450 Critical Yes Approved Approved
6/18/2020 Dispatch 002 SFTW ProQASoftwarePurchase 140,000 Critical Maybe Maybe Approved 6/18/2020 Facilities 003 CLN PurBlockDisinfectingSprayTreatments 200,918 Necessary Yes Approved Approved 6/18/2020 Fire 004 PPE ProtectiveClothing 126,000 Critical Yes Approved Approved
6/18/2020 Fire 005 EQO CPRDevices 100,707 Critical Yes Approved Approved 6/18/2020 Fire 006 PLAN Pandemic&ContinuityofOperationsPlan 25,000 Critical Yes Approved Approved 6/18/2020 Fire 007 PPE Restock PPE 20,000 Critical Yes Approved Approved 6/18/2020 Library 008 CLN LibrarySanitizing 30,400 Critical Yes Approved Approved 6/18/2020 Police 009 PPE FaceShields 10,101 Critical Yes Approved Approved
6/18/2020 Police 010 PPE FiltrationMasks 61,052 Critical Maybe Not approved Not approved Not specifically Covid-19 related 6/25/2020 Justice Court 011 EQP TechforSocialDistancing 11,000 Critical Yes Approved Approved 6/25/2020 Parks 012 EQP PeaksMistSprayerCleaningMachine 3,100 Critical Yes Approved Approved 6/25/2020 Parks 013 EQP CoveySanitizingEquip 4,500 Necessary Yes Approved Approved 6/25/2020 Parks 014 EQP RecCapacityTrackingEquip 7,105 Critical Yes Approved Approved 6/25/2020 Parks 015 EQP PeaksAutoFloorScrubber 9,200 Critical Yes Approved Approved
6/25/2020 Parks 016 TECH RecVirtualFitness 11,700 Necessary Yes Approved Approved
6/25/2020 Parks 017 EQP RecTempCheckAutomation 27,360 Critical Yes Approved Approved
6/25/2020 Parks 018 EQP PeaksPatronAccessGates 67,500 Necessary Yes Approved Not approved Not specific-enough tie to Covid 19 6/25/2020 Parks 019 EQP PeaksTurfReplacement 125,000 Necessary No Not approved Approved Must include social distancing measures
6/25/2020 Parks 020 EQP GolfCheckIn_DrivingRange 160,000 Critical Yes Maybe Approved
6/25/2020 Parks 021 SDIST RecRoomRedesign 165,000 Necessary Yes Approved Approved
6/25/2020 Parks 022 SDIST BallparkUpgrades 195,000 Critical Yes Approved Approved
6/25/2020 Parks 023 SFTW RecPerfectMindSoftware 216,000 Critical Yes Maybe Approved 6/25/2020 Parks 024 SDIST GolfOutdoorPavillion 450,000 Critical Yes Maybe Approved 6/25/2020 Parks 025 SDIST TrailLighting 1,288,000 Critical Yes Maybe Not approved Not specific-enough tie to Covid 19
6/25/2020 Parks 026 SDIST RegionalSportsPark 3,468,000 Critical Maybe-not sure about timing Not approved Not approved Not specific-enough tie to Covid 19 6/25/2020 Library 027 SDIST TablesTempEmp 13,270 Necessary Yes Maybe Approved 6/25/2020 Mayor 028 CMNTY FoodCareCoalitionFacility 250,000 Critical Yes Approved Approved 6/25/2020 CNS 029 TECH LaptopsSoftwareRemoteWork 15,139 Necessary Maybe-some criteria not checked Approved Approved
6/25/2020 Public Works 030 SDIST TacAirTerminal 4,500,000 Necessary Yes, but would negate 031 Maybe Approved
6/25/2020 Public Works 031 SDIST ExistingPassengerTerminalExp 600,000 Necessary Yes, but would negate 030 Maybe Not approved Approved project 30, thus not needed
6/25/2020 Public Works 032 SDIST NewAirportTerminalFurniture 226,206 Necessary Maybe-not sure about timing Maybe Not approved Not specific-enough tie to Covid 19
6/25/2020 Public Works 033 SDIST RegSportsParkInfrastructure 11,035,000 Aspirational No-timing and relevance Not approved Not approved Not able to benefit by end of 2020 6/25/2020 Public Works 034 SDIST AquiferStorageRecovery 8,753,194 Necessary No-timing and relevance Not approved Not approved Not able to benefit by end of 2020 Initial Review Date Dept/Division Proposal # Proposal Category Proposal Name Amount Requested Priority Rec for Approval? Eligibility/Finance Approved by Mayor Notes
6/25/2020 Public Works 035 VEH PWVehicles 240,000 Necessary Maybe Not approved Not approved Not specific-enough tie to Covid 19
6/25/2020 Public Works 036 TECH PWLaptopsTech 75,000 Necessary Maybe-depends on work-from-home necessity Approved Approved
6/25/2020 City Center 037 TECH MtgRoomSystem 35,000 Necessary No-would not be in operation in 2020 Not approved Not approved Not able to benefit by end of 2020 6/25/2020 Fire 038 EQP LaryngoscopyGlidescope 41,072 Critical Yes Approved Approved
7/9/2020 Library 039 VEH OutreachVan 55,000 Critical Yes Maybe Approved
7/9/2020 CNS 040 EQP ParkingVehicleTablets 11,496 Necessary Yes Approved Approved 7/9/2020 Mayor 041 TECH LaptopsRemoteWork 4,500 Critical Yes Approved Approved
7/9/2020 IS 042 SFTW Office365 517,701 Necessary Yes Maybe Not approved Has benefits that go beyond end of 2020 7/9/2020 Fire 043 EQP PatientCover 1,875 Critical Yes Approved Approved
7/9/2020 Fire 044 EQP DisinfectantFoggerSystem 34,426 Critical Yes - Should we get more of these or something similar for other areas of the City? Maybe Approved
7/9/2020 CNS 045 PLAN LongRangeHousingPlan 50,000 Critical No-relevance Maybe Not approved Not specific-enough tie to Covid 19
7/9/2020 CNS 046 PLAN ResiliencyPlan 50,000 Critical Maybe- how is this difference to COOP plan? Maybe Not approved - add to #006
7/9/2020 EconDev 047 SDIST DowntownOutdoorSeating 100,000 Critical Yes, although similar to Golf and Library's requests for outdoor seating Maybe Approved 7/9/2020 EconDev 048 PLAN EconomicResponsePlan 100,000 Critical Maybe Maybe Not approved Not specific-enough tie to Covid 19
7/9/2020 EconDev 049 SFTW SalesForceSoftware 50,000 Critical Yes Maybe Not approved Not specific-enough tie to Covid 19
7/9/2020 Fire, Police 050 COUN CriticalIncidentStressCounseling 90,000 Critical Yes Maybe Approved 7/9/2020 Finance 051 TECH LaptopsRemoteWork 27,500 Critical Maybe Approved Approved 7/9/2020 Justice Court 052 CLN ReupholsterBenches 3,500 Critical Yes Approved Approved
7/9/2020 Council 053 SDIST CouncilChamberSocialDistancing 12,000 Necessary Yes Approved Approved
7/9/2020 HR 054 PAYRL SickLeaveReimbursement 200,000 Critical Yes Approved Approved 7/9/2020 HR 055 TECH LaptopsRemoteWork 20,000 Critical Yes Approved Approved
7/9/2020 Covey 056 EQP TicketScanners 6,000 Necessary Yes Approved Approved 7/9/2020 Covey 057 EQP HandsfreeMicrophoneEqp 6,500 Necessary Maybe/Yes Approved Approved 7/9/2020 Covey 058 EQP WirelessMicrophones 18,500 Aspirational Maybe/Yes Approved Approved
7/9/2020 Public Works 059 EQP NewTerminalSlidingDoors 48,519 Critical Maybe-concerned about timing Not approved Not approved Not able to benefit by end of 2020
7/9/2020 Public Works 060 EQP NewTerminalCardKeyAccess 321,948 Necessary Maybe-concerned about timing Not approved Not approved Not able to benefit by end of 2020
7/9/2020 Public Works 061 EQP NewTerminalTouchlessPlumbing 32,346 Critical Maybe-concerned about timing Not approved Not approved Not able to benefit by end of 2020
7/9/2020 Public Works 062 CLN NewTerminalWashableSurfaces 174,465 Critical Maybe-concerned about timing Not approved Not approved Not able to benefit by end of 2020
7/9/2020 Fire 063 TRNG EOCTraining 91,000 Critical Maybe Not approved Not specific-enough tie to Covid 19 6/25/2020 Kelsey 064 PPE and TECH ContingencyZoomandSupplies 190,000 Necessary Yes Approved Approved 7/9/2020 Kelsey 065 PAYRL ContingencyCovidOvertime 60,000 Necessary Yes Approved Approved Initial Review Date Dept/Division Proposal # Proposal Category Proposal Name Amount Requested Priority Rec for Approval? Eligibility/Finance Approved by Mayor Notes DevServ 066 TECH LaptopsRemoteWork 10,092 Necessary Yes Approved Approved 7/9/2020 Facilities 067 EQP PortableAirCleaners 643,350 Critical Yes Approved Approved Justice Court 068 EQP PaymentDropbox 900 Necessary Yes Approved Approved Customer Serv 069 Utility Billing Supplement Based on Need 100,000 Necessary Yes Approved Approved Mayor 070 PPE ClothFaceCoverings 10,000 Critical Yes Approved Approved Total Requested 07/15/2020 $ 35,748,142
Approved by Admin $ 8,323,211 Already Spent (Charged to$ task) 133,470 Not Approved by Admin $ 27,159,931
Total Spent + Approved $ 8,456,681
Provo's Allocation $ 8,455,460 Amount Remaining (based on what as already been spent/approved) $ (1,221)
Other COVID-19 Grants Airport CARES Grant $ 1,422,704 CDBG CARES Grant $ 750,000 Public Safety COVID-19 Supplemental$ Grant 63,228 Dispatch UCA CARES Grant$ 57,000 Library CARES Grant $ 2,269 Total $ 2,295,201 Provo City CARES Act Projects Approved by the Administration As of July 28, 2020
Project 001- Provo Emergency Communications Protection ($4,450) – this project purchases digital infrared thermometers, face masks, hand sanitizer and disinfecting wipe for the dispatch center.
Project 002 – ProQA Software ($140,000) – this project will purchase a new quality assurance software program for the dispatch center. This will allow an upgrade to the City’s current hard-copy materials used by dispatch personnel when responding to medical emergencies and allow real-time updated information about Covid-19 to be used by our personnel, relayed to first responders and shared with the public.
Project 003 – PurBlock Disinfecting for City Facilities ($200,918) – this project will fully disinfect city buildings twice during the balance of 2020. These treatments will further city efforts at keeping hard surfaces clean, disinfected, and resistant to viruses including Covid-19.
Project 004 – Protective Clothing ($126,000) – this project will provide a second set of protective clothing for each fire department employee. With their exposure to patients as first responders, often protective clothing is compromised due to pathogens, blood and other bodily fluids. This will provide additional protective clothing should such issues occur multiple times during a shift.
Project 005 – Auto Pulse Mechanical CPR Devices ($100,707) – this project will purchase seven devices that will mechanically perform CPR on patients who are at risk of exposing our employees to Covid-19.
Project 006 – Pandemic and Continuity of Operations Plan ($25,000) – this project will retain an outside consultant to update the City’s emergency operations plan as it relates to pandemics now and in the future.
Project 007 – Restock PPE ($20,000) – the City’s stock of personal protective equipment has taken a big hit due to the pandemic. This project will replace and enhance the City’s inventory of such equipment.
Project 008 – Library Sanitizing ($30,400) – this project includes supplies and staffing for enhanced cleaning and sanitizing of library surfaces during the pandemic.
Project 009 – Face Shields ($10,001) – this project acquires plastic face shields for police officers in the field which will attach to their existing helmets, providing additional protection for them in situations where they cannot socially distance from the public.
Project 011 – Tech for Social Distancing ($11,000) – this project will provide laptops, tablets, texting technology and additional video monitors for the Justice Court. These technologies are part of the State’s Pandemic Risk Operations Plan for courts throughout the state.
Project 012 – Peaks Arena Fitness Area Mist Sprayer Cleaning Machine ($3,100) – this project will provide a disinfectant machine that will clean weights and bars, including other equipment which is frequently handled by patrons. These machines will speed up the process and make the cleaning more effective.
Project 013 – Covey Center Sanitizing Equipment ($4,500) – this project will provide electrostatic sanitizing equipment which will be used to clean and sanitize seats and stage areas before, between, and
1 after performances. This will also sanitize studio areas, restrooms, furniture backstage area, lobbies and galleries during the pandemic.
Project 014 – Rec Capacity Tracking Equipment ($7,105) – this project will automatically track the total number of visitors in various zones of the recreation center at any given time. This information will be communicated to staff in real-time so that capacity limits dictated by state health department can be met without the need to hire and train additional round-the-clock staffing.
Project 015 – Peaks Auto Floor Scrubber ($9,200) – this project will clean and disinfect the rubber floors and hard surfaces in all areas of the building without having to hire additional staff.
Project 016 – Recreation Center Virtual Fitness ($11,700) – this project will increase the virtual fitness options for the over 23,000 current members of the recreation center during the pandemic. The project covers the hardware for each of the 9 studios (3 group and 6 individual) as well as the service fee through December 2020.
Project 017 – Recreation Facilities Temperature Check Automation ($27,360) – this project will provide each recreation facility (rec center, ice arena, Covey Center, and East Bay Golf Course) with units and stands to screen patrons for Covid-19. The purchase will allow for thousands of daily patrons to gain access while still keeping the general public safe.
Project 019 – Peaks Turf Replacement ($125,000) – this project will replace the beaded turf to a solid turf solution to kick up less debris onto players, slowing the spread of the virus and other pathogens. This surface is also easier to clean and maintain effectively.
Project 020 – Pro Shop Check-in and Touchless Driving Range ($160,000) – this project provides the necessary tools and safeguards for the new golf course to allow for full operation during and in the post Covid-19 world. This includes a newly designed counter and check in for safety and technology to limit customer interaction at all check points, touch-less range ball dispensing machine and facility.
Project 021 – Community Game Room Redesign ($165,000) – this project will allow for a space in the recreation center that will work with the social distancing guidelines for Covid-19 by adding walls to protect the highest risk populations (silver sneakers, adaptive yoga, Parkinson’s programming, post-natal infant care, etc.) using the facility. Other improvements to the space will include the requisite member check-in/check-out technology and basic equipment.
Project 022 – Ballpark Upgrades ($195,000) – this project will facilitate compliance with Covid-19 safety upgrades to Footprinter Park and Fort Utah Park. Upgrades include dugout extensions, safety nets around the tower, new windows and sound systems for ballpark/concession areas, and portable UV sanitation.
Project 023 – PerfectMind Software ($216,000) – this project allows for sports leagues, membership sales, and day passes to all move to online. This will reduce in-person interactions at the recreation center and improve the experience and exposure of staff for unneeded conversations. This also allows for staff to spend more time assisting electronically and on the phones.
Project 024 – Golf Outdoor Pavilion ($450,000) – this project will facilitate an area for open outdoor seating at the golf course to allow high level function during Covid-19. This area outdoor will allow for guests to safely social distance in large groups.
2 Project 027 – Library Tables, Sanitizer, and Temporary Employees ($13,270) – this project will allow for the library to open up the north patio for patron use to help with social distancing. They will have 4 round, sturdy tables with umbrellas on the patio and hire 4 temporary employees to assist with the patio area.
Project 028 – Food and Care Coalition Transition Housing Facility ($250,000) – this project will provide financial support for a 72-bed facility that functions as transitional housing from homelessness to first time, or newly acquired long term housing. This facility will assist the working homeless person who does not have a place to live or cannot afford rent. It has been demonstrated that the homeless population has been hardest hit by the Covid-19 pandemic and the new facility will provide safe and healthy housing for this vulnerable population.
Project 029 – Laptops and Office 365 for Remote Work ($15,139) – this project will provide a laptop along with docking stations and software for each employee in Community and Neighborhood Services to work remotely from home during the pandemic.
Project 030 – Tac Air Terminal ($4,500,000) – this project will allow the purchase of the Tac Air building and make the necessary changes to the building to make it more useable as a terminal. The current airport terminal was designed to accommodate a maximum of 177 passenger. The current A320 aircraft servicing Provo has a capacity of 187. This does not allow for social distancing in the existing terminal due to the Covid-19 pandemic. The changes will allow for passengers to social distance safely when waiting for their flights. Less expensive alternatives were considered such as expanding the existing passenger terminal with temporary buildings, but these other alternatives encroached on the flight operations area, making them unworkable even in the short term. Additionally, federal security requirements for passenger terminal and the placement of TSA equipment and facilities would cause expensive and time consuming roadblocks to an addition to the building.
Project 036 – Public Works Laptops and Technology ($75,000) – this project will purchase the necessary laptops, cameras, microphones and other audio/visual equipment to enable teleworking and video conferencing for Public Works employees due to the pandemic.
Project 038 – (Fire) Glidescope Go Video Tracheal Intubation Laryngoscopy ($41,072) – this project will improve the first attempt success of intubation of patients in respiratory distress. This critical lifesaving intervention method improves accuracy and the ability to correctly place endotracheal tubes and helps minimize the risk of exposure of first responders to Covid-19. Project includes purchasing 8 units, disposable supplies for 6 months, and an extended warranty.
Project 039 – Library Outreach Van ($55,000) – this project will assist in completing the retrofit of a van which will travel to various locations in the city as a portable library. It will spread out the participants to socially distance safely and minimize the people who will need to travel to the library.
Project 040 – Parking Vehicle Tablets ($11,496) – this project will purchase and install 3 tablets and mounts on Parking Enforcement vehicles that do not currently have LPR (License Plate Reader) systems. These tablets will enable the parking officers to access emails of residents’ concerns, parking tickets, appeals, etc. rather than coming into a shared office with no social distancing in order to access this information.
3 Project 041 – Laptops for Remote Work ($4,500) – this project will purchase 3 laptop computers to facilitate Mayor’s Office staff working remotely in pandemic circumstances which improve in social distancing.
Project 043 – Emergency Relief Patient Cover for Fire Dept ($1,875) – this project will purchase 15 patient covers which are used as a physical barrier during patient care to reduce the area exposed to contaminant particles. It is a small isolation tent made for a gurney that covers the head and is easily manipulated to cover the patient without limiting access for critical treatment. This product is an effective method to limit Covid-19 virus particle travel.
Project 044 – Disinfectant Fogger System for Fire ($34,426) – this project will supply disinfectant fogging that is used to disinfect surfaces and contamination collect points. This is used as a standalone fogger or can be hand directed to clean and disinfect patient care area or ambulance cab, fire engine, police vehicles, office, living quarters, medical bags, kits, and equipment for protection from Covid-19.
Project 047 – Downtown Outdoor Seating ($100,000) – this project will allow for Provo City to construct 4 new outdoor dining locations in Downtown Provo. These four specific locations offer a safer dining and gathering space while maintaining social distancing due to restricted seating in restaurants during the pandemic.
Project 050 – Critical Incident Stress Counseling Police/Fire ($90,000) – this project will assist the many first responders who have been (or will be) emotionally impacted by potential exposure to Covid-19 and to hazards such as domestic violence incidents that have their roots in the economic challenges families are experiencing due to the pandemic. Many have contemplated their career choice, slept in trailers, garages, and motels to avoid potential exposure to their families. This project would provide critical incident debriefings and PTSD mental health providers to offer counseling and would include annual mental health visits and critical needs counseling.
Project 051 – Laptops for Remote Work for Finance ($27,500) – this project will allow for laptops and related software/equipment that will support the ability for finance and the recorder offices to work remotely during the Covid-19 pandemic.
Project 052 – Reupholster Courtroom Benches and Replace Lobby Chairs ($3,500) – this project will reupholster the Justice Court courtroom benches with material that will allow cleaning/disinfecting and will replace the lobby with chairs that can be cleaned and disinfected rather than fabric material. There State of Utah Judiciary Risk Phase Response Plan is requiring this due to Covid-19.
Project 053 – Council Chamber Social Distancing Improvements ($12,000) – this project make physical changes to the dais and staff desks to allow for social distancing of councilors and staff members. There will also be additional changes throughout the to accommodate social distancing due to the pandemic. These changes will allow in-person council meetings to resume.
Project 054 – Reimbursement Paid Sick and Pandemic Leave ($200,000) – this is to reimburse the City for unbudgeted Emergency Paid Sick Leave (80 hours) mandated by the Families First Coronavirus Response Act and for Provo Pandemic Leave (80 hours) offered by the City to prevent employees from having to hide their illness (if they had Covid-19) because they didn’t have sick leave.
4 Project 055 – HR Laptops for Remote Access ($20,000) – this project is to purchase laptops to facilitate working from home during Covid-19 related shutdown or mandatory self-isolation. This department currently has one outdated laptop. This department has key business functionality (such as payroll, benefits admin, recruitment) which would otherwise be interrupted in the event of a work from home situation.
Project 056 – Ticket Scanners at the Covey Center ($6,000) – this project is to facilitate electronic tickets which front of house staff could scan as patrons enter the performance hall. This would be done by checking e-tickets with barcode scanners and would be a touchless process.
Project 057 – Handsfree Microphone Equipment for the Covey Center ($6,500) – this project would purchase head worn microphones and neoprene mic belts to add to inventory for performers to each wear during a performance. The Covey Center had limited equipment that has been shared between performers until now. The additional equipment would provide a more hygienic experience especially during the pandemic where the virus could be easily spread with sharing.
Project 058 – Wireless Microphones for the Covey Center ($18,500) – this project would purchase 4 additional wireless microphone transmitters, receivers, and accessories to reduce the need for performers to share equipment during a performance, which will reduce the likelihood of Covid-19 transmittal. This project supplements the equipment included in project 057.
Project 064 – Covid-19 Contingency for Zoom Fees and Supplies ($190,000) – this would cover the expenses incurred for Zoom accounts and for supplies to cover basic Covid-19 necessities including masks, hand sanitizer, gloves and cleaning supplies for each department.
Project 065 – Contingency Covid-19 Public Safety Overtime ($60,000) – this would cover the overtime that was earned specifically due to duties performed in response to Covid-19. This includes for example Police Officers who provided security at the Covid testing sites and received overtime for those hours.
Project 066 – Development Services Laptops and Supplies for Remote Work (($10,092) – this project would purchase laptops, docking stations, software, and video conference subscriptions and equipment for remote work during the pandemic. To encourage social distancing and precautions they need the supplies to assist with telecommuting.
Project 067 – Portable Air Cleaners ($643,350) – this would cover the portable air purifying units the CDC has recommended for buildings which house multiple individuals. This is our part of what we can do to ensure our buildings are as safe as possible for the employees and the public. These would be in each office. Also, HVAC filters would be replaced with MERV rated filters to assist with clean airflow to protect from Covid-19.
Project 068 – Justice Court Payment Dropbox ($900) – this project would provide a secure place for payments to be made outside of the Justice Court. This would protect transmittal of Covid-19 through social distancing.
Project 069 – Utility Billing Supplement Based on Need ($100,000) – Many utility customers have been impacted by Covid-19 resulting in being laid off, having hours of work reduced and other similar financial challenges. These funds will be allocated to supplement existing programs to assist disadvantaged utility customers in paying past due bills.
5 Project 070 – Cloth Face Coverings for City Employees ($10,000) – this project would supply a safe and branding consistent face covering for each City employee to protect with transmittal of Covid-19 virus.
6 PROVO MUNICIPAL COUNCIL STAFF REPORT
Submitter: JMCKNIGHT Department: Public Works Requested Meeting Date: 08-04-2020
SUBJECT: A resolution approving the application for grants from the Bureau of Reclamation's WaterSMART Drought Response Program for fiscal year 2021 for the Provo Aquifer Storage and Recovery Project. (20-105)
RECOMMENDATION: Approve the resolution as written.
BACKGROUND: Public Works has been working to identify ways to artificially recharge the aquifers that supply water to the City. A WaterSMART drought resiliency grant has been identified as a potential funding source for these ASR projects. One of the requirements of the grant application is a resolution indicating the Council's support and commitment to meeting the requirements of the grant program.
FISCAL IMPACT: Yes in potential grant funding
PRESENTER’S NAME: Dave Decker, Public Works Director
REQUESTED DURATION OF PRESENTATION: 30 minutes
COMPATIBILITY WITH GENERAL PLAN POLICIES, GOALS, AND OBJECTIVES: Aquifer Storage and Recovery projects will help the City meet long term goals for sustainability of the City's water resources.
CITYVIEW OR ISSUE FILE NUMBER: 20-105
1 1 RESOLUTION 2020-. 2 3 A RESOLUTION APPROVING THE APPLICATION FOR GRANTS FROM 4 THE BUREAU OF RECLAMATION’S WATERSMART DROUGHT 5 RESPONSE PROGRAM FOR FISCAL YEAR 2021 FOR THE PROVO 6 AQUIFER STORAGE AND RECOVERY PROJECT (20-105) 7 8 WHEREAS, the City of Provo (Applicant) has prepared an application to apply for 9 federal funding from the United States Department of the Interior, Bureau of Reclamation 10 (Bureau) to assist in the funding of the Provo Aquifer Storage and Recovery Project; and 11 12 WHEREAS, the funding opportunity provided by the Bureau is through their Grant 13 Program entitled “WaterSMART Drought Response Program: Drought Resiliency Projects for 14 Fiscal Years 2020 and 2021” and the Funding Opportunity Announcement No. is BOR-DO-20- 15 F002; and 16 17 WHEREAS, the Applicant, if selected will enter into an agreement with the Bureau to 18 carry out the project. 19 20 NOW, THEREFORE, be it resolved by the Municipal Council of Provo City, Utah, as 21 follows: 22 23 PART I: 24 25 1. The Council approves the filing of an application for a WaterSMART grant to 26 aid in the implementation of the Provo Aquifer Storage and Recovery Project; 27 and 28 2. The Mayor is authorized to certify that the City understands, as an Applicant, 29 that it will work with the Bureau to meet established deadlines for entering 30 into a grant cooperative agreement; and 31 3. The Mayor is authorized to certify that the City understands the assurances 32 and certification in the application; and 33 4. The Mayor is authorized to certify that the City is capable of providing the 34 amount of funding specified in the application; and 35 5. The Mayor is authorized to appoint the City Administrative Officer, or 36 designee, as agent to conduct all negotiations, execute and submit all 37 documents including, but not limited to applications, agreements, payment 38 requests and so on, which may be necessary for the completion of the 39 aforementioned project; and 40 6. The Mayor, or presiding officer, is hereby authorized to affix her signature to 41 this Resolution signifying its adoption by the City Council of the City of 42 Provo and the City Recorder, or their duly appointed assistant, is directed to 43 attest thereto. 44 45 PART II: 46 This resolution shall take effect immediately. 47 END OF RESOLUTION.
Provo Aquifer Storage and Recovery – The Path to a Long-term Sustainable Water Supply
Provo City Council Meeting July 21, 2020 2
3
1 4
Rock Canyon Pilot Test Rock Canyon Pilot Test
Riverview Park
I
1 P 4
2
3 Riverview Park Pilot Test
Pumping water from the Provo River… Riverview Park Pilot Test
…Into the water feature in the park Riverview Park Pilot test Static Water Level below Ground Surface (ft) MW-RV2
Time (Day) 6/5/2020 0:00 6/12/2020 0:00 6/19/2020 0:00 6/26/2020 0:00 7/3/2020 0:00 7/10/2020 0:00 7/17/2020 0:00 50 10.0
70 9.0
90 8.0
110 7.0
130 6.0
150 5.0 SWL bgs (ft)
170 4.0 Flow Rate (cfs)
190 3.0
210 2.0
230 1.0
250 0.0
Level Troll (Lower) Level Troll (Upper) Flow Rate at Weir
Rock Canyon Project Grant/Loan Applications
• Utah Division of Water Resources • Utah Division of Drinking Water • U.S. Bureau of Reclamation WaterSMART • U.S. EPA WIFIA Program WaterSMART Grant
• 50/50 cost share up to $1.5 million
• City Council resolution August 4, 2020
• Submittal due August 5, 2020
1 RESOLUTION 2020 - 2 3 A RESOLUTION TO PLACE THE VACANT PROPERTY AT 480 WEST 4 CENTER ON THE SURPLUS PROPERTY LIST AND TO REMOVE A 5 PARCEL AT THE MOUTH OF PROVO CANYON THEREFROM. (20-110) 6 7 WHEREAS, Provo City (the “City”) owns a vacant parcel of ground located at 480 West 8 Center Street, further described in Exhibit A; and 9 10 WHEREAS, this property is vacant and has not been identified for future use by Provo 11 City; and 12 13 WHEREAS, Provo City is desirous of selling this property for future development under 14 the appropriate circumstances; and 15 16 WHEREAS, the Mayor has recommended that this parcel be placed on the surplus 17 property list for potential sale, subject to the conditions set forth in Provo City Code 3.04.030 18 and subject to the Municipal Council’s approval of the terms of any real estate purchase contract; 19 and 20 21 WHEREAS, the Municipal Council passed a resolution on February 28, 2019, to place an 22 approximately 39 acre parcel of ground located generally at the mouth of Provo Canyon onto the 23 Surplus Property List; and 24 25 WHEREAS, the Municipal Council has had further discussion about the possibility of 26 developing the property and determined that the property should remain as open space for trails 27 and other recreation purposes; and 28 29 WHEREAS, the Municipal Council requested that this property no longer be considered 30 surplus and asked that it be removed from the Surplus Property List; and 31 32 WHEREAS, on August 4, 2020, the Municipal Council met to ascertain the facts 33 regarding this matter and receive public comment, which facts and comments are found in the 34 public record of the Council’s consideration; and 35 36 WHEREAS, after considering the recommendation, and facts and comments presented to 37 the Municipal Council, the Council finds (i) the real Property described in Exhibit A should be 38 added to the Surplus Property List for sale subject to the conditions set forth below, (ii) the 39 parcel described above at the mouth of Provo Canyon should be removed from the Surplus 40 Property List, and (iii) this action reasonably furthers the health, safety, and general welfare of 41 the citizens of Provo City. 42 43 NOW, THEREFORE, be it resolved by the Municipal Council of Provo City, Utah, as 44 follows: 45 46 47 PART I: 48 49 The real Property described in the attached Exhibit A is hereby placed on the Surplus Property 50 list and the Mayor is authorized to dispose of the property by selling the property subject to the 51 conditions set forth in Provo City Code 3.04.030 and subject to the Municipal Council’s approval 52 of the terms of any real estate purchase contract related to this property. 53 54 PART II: 55 56 The real Property described in the attached Exhibit B is hereby removed from the Surplus 57 Property list. 58 59 PART III: 60 61 This resolution shall take effect immediately. 62 63 END OF RESOLUTION. EXHIBIT “A”
480 West Center Street
Utah County Tax ID Number 04:066:0026 - Commencing South 0 degrees 21' 3" East .54 feet and North 89 degrees 38' 57" East 89 feet from Southwest Corner of Block 71, Plat A, Provo City Survey; thence East 27 feet; thence North 99 feet; thence West 27 feet; thence South 99 feet to beginning. Area = 0.061 Acres EXHIBIT “B”
Mouth of Provo Canyon
Utah County Tax ID Number 20-015-0004 – The Southeast Quarter of the Northwest Quarter of Section 7 in Township 6 South, Range 3 East of the Salt Lake Meridian, less that portion belonging to the State Road Commission in the northwest of said property. Area = 39.00 Acres This cadastral map is generated from Utah County Recorder data. It is for reference only and no Utah County Parcel Map liability is assumed for any inaccuracies, incorect data or variations with an actual survey Date: 7/20/2020 200150004 ± This cadastral map is generated from Utah County Recorder data. It is for reference only and no Utah County Parcel Map liability is assumed for any inaccuracies, incorect data or variations with an actual survey Date: 7/20/2020 040660026 ± PROVO MUNICIPAL COUNCIL STAFF REPORT
Submitter: TARAR Department: Community and Neighborhood Services Requested Meeting Date: 08-04-2020
SUBJECT: A resolution to place the vacant property at 480 West Center on the Surplus Property List and to remove a parcel at the mouth of Provo Canyon therefrom. (20-110)
RECOMMENDATION: Approve the resolution as written.
BACKGROUND: In 2013, Provo City acquired the property at 480 West Center, previously known as the "Roasted Artichoke". Provo City became involved in this property when the building condition was considered to be dangerous and needed to be demolished. The property has been sitting vacant since that time, except for a storage shed that is being used by the Parks and Recreation Department. The City has been approached by several individuals who have expressed interest in developing this property into a commercial use. Before pursuing any of those offers, it would be appropriate to first put the property on the Surplus Property List.
On February 28, 2019, the Provo Municipal Council approved the placement of a 39- acre parcel of ground located at the mouth of Provo Canyon on the Surplus Property List (Resolution 2019-12). After further discussion about the possibility of developing the property, it was determined that the property should remain as open space for trails and other recreational purposes and the property should be removed from the Surplus Property List.
FISCAL IMPACT: Income from sale of property
PRESENTER’S NAME: Tara Riddle
REQUESTED DURATION OF PRESENTATION: 15 minutes
COMPATIBILITY WITH GENERAL PLAN POLICIES, GOALS, AND OBJECTIVES: This request is compatible with the general plan, policies, goals, and objectives of Provo City.
CITYVIEW OR ISSUE FILE NUMBER: 20-110
1
July 16, 2020
Mr. Dan Follett Division Director of Finance Provo City 351 W Center St Provo UT 84601
Mr. Follett: Zions Bank is pleased to respond to Provo City’s request for bids for lease financing for golf course maintenance equipment, in the amount of $521,093.13. The rate that we are bidding is 1.78%. Attached on the following pages is a debt service schedule for Zions’ proposed bid. We have assumed annual payments for 4 years, and have made estimates of August 4th, 2020 for a closing/funding date and then scheduled payments each subsequent year on August 4th. These dates can be moved subject to the City’s preferences, although movements that extend the final maturity of the lease more than a couple of months might be subject to a rate reevaluation.
This lease is callable at any time with no penalty, and there are no transaction costs or costs of issuance related to the lease. Zions will need legal sign off from our in-house bank counsel, but would assume that would not be a problem, and we have completed lease financings with the City previously.
Please feel free to contact me via phone (801-369-4093) or email ([email protected]) with any questions. We hope that our bid is the best bid, but feel confident that, even if it is not, the City will get a great deal on this financing.
Best regards,
Brian Baker, Vice President [email protected]
ZIONS BANK PUBLIC FINANCE | July 2020 Provo City, Utah $521,093.13 Equipment Lease Purchase Dated August 4, 2020
Table of Contents
Report
Debt Service Schedule 1
Pricing Summary 2
Sources & Uses 3
Lease 07/16/20 | SINGLE PURPOSE | 7/16/2020 | 10:10 AM
Provo City, Utah $521,093.13 Equipment Lease Purchase Dated August 4, 2020
Debt Service Schedule
Date Principal Coupon Interest Total P+I 08/04/2020 107,928.23 ‐‐107,928.23 08/04/2021 100,573.89 1.780% 7,354.34 107,928.23 08/04/2022 102,364.11 1.780% 5,564.12 107,928.23 08/04/2023 104,186.19 1.780% 3,742.04 107,928.23 08/04/2024 106,040.71 1.780% 1,887.52 107,928.23 Total $521,093.13 ‐ $18,548.02 $539,641.15
Yield Statistics
Bond Year Dollars $1,042.02 Average Life 2.522 Years Average Coupon 1.7800001%
Net Interest Cost (NIC) 1.7800001% True Interest Cost (TIC) 1.7800002% Bond Yield for Arbitrage Purposes 1.7800002% All Inclusive Cost (AIC) 1.7800002%
IRS Form 8038 Net Interest Cost 1.7800001% Weighted Average Maturity 2.522 Years
Lease 07/16/20 | SINGLE PURPOSE | 7/16/2020 | 10:10 AM
Page 1
Provo City, Utah $521,093.13 Equipment Lease Purchase Dated August 4, 2020
Pricing Summary
Maturity Type of Bond Coupon Yield Maturity Value Price Dollar Price 08/04/2024 Term 1 Coupon 1.780% 1.780% 413,164.90 100.000% 413,164.90 Total ‐ ‐ ‐ $413,164.90 ‐ $413,164.90
Bid Information
Par Amount of Bonds $413,164.90 Gross Production $413,164.90
Bid (100.000000%) 413,164.90
Total Purchase Price $413,164.90
Bond Year Dollars $1,042.02 Average Life 2.522 Years Average Coupon 1.7800001%
Net Interest Cost (NIC) 1.7800001% True Interest Cost (TIC) 1.7800002%
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Provo City, Utah $521,093.13 Equipment Lease Purchase Dated August 4, 2020
Sources & Uses
Dated 08/04/2020 | Delivered 08/04/2020
Sources Of Funds Par Amount of Lease $521,093.13
Total Sources $521,093.13
Uses Of Funds Deposit to Equipment Lease Purchase Fund 521,093.13
Total Uses $521,093.13
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Page 3 PROVO MUNICIPAL COUNCIL STAFF REPORT
Submitter: DMORTENSEN Department: Finance Requested Meeting Date: 08-04-2020
SUBJECT: A resolution appropriating $521,093.13 in the Golf Fund for the purchase of Golf Course Maintenance Equipment to be leased. (20-109)
RECOMMENDATION: Approve the resolution as written.
BACKGROUND: The Parks and Recreation Department requests an appropriation of $521,093.13 in the Golf Fund for the purchase of Golf Course Maintenance Equipment to be leased. The equipment leased will replace current equipment that has reached the end of its useful life.
FISCAL IMPACT: $521,093.13 lease financing obtained from Zions Bank to be paid back over 5 years at 1.78% interest. Debt service payment amounts are already budgeted.
PRESENTER’S NAME: David Mortensen
REQUESTED DURATION OF PRESENTATION: 10 minutes
COMPATIBILITY WITH GENERAL PLAN POLICIES, GOALS, AND OBJECTIVES:
CITYVIEW OR ISSUE FILE NUMBER: 20-109
1 1 RESOLUTION 2020-. 2 3 A RESOLUTION APPROPRIATING $521,093.13 IN THE GOLF FUND FOR 4 THE LEASE OF GOLF COURSE MAINTENANCE EQUIPMENT. 5 6 WHEREAS, the Municipal Council of Provo City Corporation has received a 7 recommendation from the Provo City Parks and Recreation Department that $521,093.13 be 8 appropriated in the Golf Fund for the lease of golf course maintenance equipment; and 9 10 WHEREAS, to fund the appropriation, lease financing has been obtained from Zions 11 Bank in the amount of $521,093,13 to be repaid over five years at 1.78% interest; and 12 13 WHEREAS, on August 4, 2020, the Municipal Council met to ascertain the facts 14 regarding this matter and receive public comment, which facts and comments are found in the 15 public record of the Council’s consideration; and 16 17 WHEREAS, all persons for and against the proposed appropriation and transfer were 18 given an opportunity to be heard; and 19 20 WHEREAS, after considering the Mayor's recommendation, and facts and comments 21 presented to the Municipal Council, the Municipal Council finds the proposed appropriation 22 reasonably furthers the health, safety, and general welfare of the citizens of Provo City. 23 24 NOW, THEREFORE, be it resolved by the Municipal Council of Provo City, Utah as 25 follows: 26 27 PART I: 28 29 The Mayor is hereby authorized to appropriate $521,093.13 in the Golf Fund for the lease 30 of golf course maintenance equipment, applying to the fiscal year ending June 30, 2021. 31 32 PART II: 33 34 This resolution shall take effect immediately. 35 36 END OF RESOLUTION.
July 16, 2020
Mr. Dan Follett Division Director of Finance Provo City 351 W Center St Provo UT 84601
Mr. Follett: Zions Bank is pleased to respond to Provo City’s request for bids for lease financing for golf course maintenance equipment, in the amount of $521,093.13. The rate that we are bidding is 1.78%. Attached on the following pages is a debt service schedule for Zions’ proposed bid. We have assumed annual payments for 4 years, and have made estimates of August 4th, 2020 for a closing/funding date and then scheduled payments each subsequent year on August 4th. These dates can be moved subject to the City’s preferences, although movements that extend the final maturity of the lease more than a couple of months might be subject to a rate reevaluation.
This lease is callable at any time with no penalty, and there are no transaction costs or costs of issuance related to the lease. Zions will need legal sign off from our in-house bank counsel, but would assume that would not be a problem, and we have completed lease financings with the City previously.
Please feel free to contact me via phone (801-369-4093) or email ([email protected]) with any questions. We hope that our bid is the best bid, but feel confident that, even if it is not, the City will get a great deal on this financing.
Best regards,
Brian Baker, Vice President [email protected]
ZIONS BANK PUBLIC FINANCE | July 2020 Provo City, Utah $521,093.13 Equipment Lease Purchase Dated August 4, 2020
Table of Contents
Report
Debt Service Schedule 1
Pricing Summary 2
Sources & Uses 3
Lease 07/16/20 | SINGLE PURPOSE | 7/16/2020 | 10:10 AM
Provo City, Utah $521,093.13 Equipment Lease Purchase Dated August 4, 2020
Debt Service Schedule
Date Principal Coupon Interest Total P+I 08/04/2020 107,928.23 ‐‐107,928.23 08/04/2021 100,573.89 1.780% 7,354.34 107,928.23 08/04/2022 102,364.11 1.780% 5,564.12 107,928.23 08/04/2023 104,186.19 1.780% 3,742.04 107,928.23 08/04/2024 106,040.71 1.780% 1,887.52 107,928.23 Total $521,093.13 ‐ $18,548.02 $539,641.15
Yield Statistics
Bond Year Dollars $1,042.02 Average Life 2.522 Years Average Coupon 1.7800001%
Net Interest Cost (NIC) 1.7800001% True Interest Cost (TIC) 1.7800002% Bond Yield for Arbitrage Purposes 1.7800002% All Inclusive Cost (AIC) 1.7800002%
IRS Form 8038 Net Interest Cost 1.7800001% Weighted Average Maturity 2.522 Years
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Page 1
Provo City, Utah $521,093.13 Equipment Lease Purchase Dated August 4, 2020
Pricing Summary
Maturity Type of Bond Coupon Yield Maturity Value Price Dollar Price 08/04/2024 Term 1 Coupon 1.780% 1.780% 413,164.90 100.000% 413,164.90 Total ‐ ‐ ‐ $413,164.90 ‐ $413,164.90
Bid Information
Par Amount of Bonds $413,164.90 Gross Production $413,164.90
Bid (100.000000%) 413,164.90
Total Purchase Price $413,164.90
Bond Year Dollars $1,042.02 Average Life 2.522 Years Average Coupon 1.7800001%
Net Interest Cost (NIC) 1.7800001% True Interest Cost (TIC) 1.7800002%
Lease 07/16/20 | SINGLE PURPOSE | 7/16/2020 | 10:10 AM
Page 2
Provo City, Utah $521,093.13 Equipment Lease Purchase Dated August 4, 2020
Sources & Uses
Dated 08/04/2020 | Delivered 08/04/2020
Sources Of Funds Par Amount of Lease $521,093.13
Total Sources $521,093.13
Uses Of Funds Deposit to Equipment Lease Purchase Fund 521,093.13
Total Uses $521,093.13
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