HomeMy WebLinkAbout4534
Vendor
Subject
Department
Status Code
Amount
Begin Date
End Date
Review Date
Insurance
Comments
RIVER OAKS
Consultant
City Clerk
PRO
$71000.00
12/01/2005
12/31/2006
02/15/2008
Contract Number 4534
COMMUNICATIONS CORPORATION
- Cab+e Franchise Renewal
File Class LEG 12-1
GL
AL
E&O
$4000000.00
$
$
Insurance Total
Insurance Review Date
Modification #1-10/06
Vault 01/01/2008
$4000000.00
04/01/2006
CONTRACT MODIFICATION AGREEMENT NO.1
BETWEEN THE CITY OF BREMERTON AND
RIVER OAKS COMMUNICATIONS CORPORATION
DATE /0 - IlJ-o "
This contract Modification Agreement specifically amends the Professional Services Agreement
(the "contract") entered into between the City of Bremerton and River Oaks Communications
Corporation on January 3,2006.
All provisions in the Contract shall remain in full force and effect except as expressly modified by
this document.
For valuable consideration and by mutual consent of the parties, the modifications to the Contract
are as follows:
I.
Section III. Compensation, is modified as follows:
III. Compensation: In consideration of the services provided pursuant to this
Agreement, the City shall pay Consultant in an amount not to exceed $71 ,000.00.
Consultant's charges and bills shall conform to the fee schedule attached hereto and
incorporated herein as Exhibit C.
II.
Exhibit "c" - The first two sentences of the second paragraph are modified as follows:
It is estimated that from the effective date of this Agreement until December 31, 2006,
Consultant would work on the City's behalf in connection with matters described in the Scope of
Services with a cap of $71,000. Consultant commits to perform the portion of the Services, which
are solely within the control of Consultant, and not subject to expansion either by the City or other
circumstances beyond the control of Consultant, for a total cost not in excess of the cap of
$71,000.
III.
Consultant accepts all requirements of this Contract Modification by endorsing below.
Consultant further agrees that this Contract Modification constitutes full and final settlement
of all of the Consultant's claims for contract time and for all costs of any kind, including
without limitation, costs of delays related to any work either covered or affected by this
Contract Modification, claims related to on-site or home office overhead, or lost profits. This
Contract Modification does not limit the City's right to bring a claim for past performance.
Bremerton/River Oaks Communications Corp
Contract Modification No.1
The undersigned consultant approves the foregoing Contract Modification as to the changes,
if any, in the contract price specified for each item, including any and all supervision costs and
other miscellaneous costs relating to the change in work, and as to the extension of time
allowed, if any, for completion of the entire work due to said Contract Modification.
This document will become a supplement of the contract and all provisions will apply hereto.
It is understood that this Contract Modification shall be effective when approved by the City
of Bremerton.
The parties whose names appear below warrant that they are authorized to enter into a
contract modification that is binding on the parties of this contract.
IN WITNESS WHEREOF, the parties have executed this Contract Modification on the day
and year first written above.
RIVER OAKS COMMUNICATIONS
COR~T~
~ (' 4~7 c;?>~=.s/.u
Byb qtt::ii41 r rJucllEW
Its I tf1Zo.f.ltfl??r
~~J?t;:
ON
DATE:
DATE:
10-1 ~-O (p
APPROVED AS TO FORM:
\11;
fl1 ;1 I ?I) -c/
1 j -. I
Bremerton CIty Attorney
ATTEST:
Bremerton/River Oaks Communications Corp
Contract Modification No.1
2
+~-----------~------------------------------------~------------------------+
=l=Press EscKey to Insert new record, Ctrl-Z to Clear form =1=
=l=Press Del Key to Terminate Insert Mode =1=
=l=INSERT Contract Maintenance =1=
=1= Contract Number 4534 =1=
tVendor Name RIVER OAKS COMMUNICATIONS CORPORATION t
=l=Subject CONSULTANT - CABLE FRANCHISE RENEWAL =1=
=l=oepartment FINANCE =1=
=l=Status Code PRO =1=
=1= Amount $65000.00 =1=
=1= Begin Date 12/01/2005 =1=
=l=t Insurance End bate 12/31/2006 t
Typ~ Amount Review Date 11/01/2006
Press F1 for GL $4000000.00
=1= valid insurance =1=
=1= type codes =1=
=1= Insurance Total $4000000.00 =1=
t Insurance Review Date 04/01/2006 t
=1= Comments =1=
~ t
+--------------------------------------------------------------------------+
t~
PROFESSIONAL SERVICES AGREEMENT
Cable Franchise Renewal- Informal Renewal Process
The City of Bremerton. ("City") and River Oaks Communications Corporation
("Consultant"), referred to collectively as the "Parties," enter into the following Agreement for
professional services:
I. Scope: The Consultant agrees to perform the services more specifically described in the
Scope of Work attached hereto and incorporated-herein as Exhibit A. The Scope of Work may
be modified only pursuant to Section VII.G. of this Agreement. If the Scope of Work provides
for unspecified additional services such services shall only be performed upon the express
written request of the City. Consultant further represents that the services furnished under this
Agreement will be performed in accordance with genenllly accepted - professional practices in
effect at the time such services are performed. .
II. Term: The City and the Consultant agree that work will begin on the tasks described in
Exhibit A on December I ~ 2005 subject to budget approval by the City and will be done in
accordance with Exhibit B. .
ID. . Compensation: In consideration of the services provided pursuant to this Agreement, the
City shall pay Consultant in an amount not to exceed $65,000.00. Consultant's charges and bills
shall confOrnl to the fee schedule attached hereto and incorporated herein as Exhibit C.
The Consultant shall submit regular billing statements detailing work performed and
amount charged on each task or portion thereof. The descriptions shall conform to and fall
within the categories set out in the Scope of Work and/or Fee Schedule. Upon receipt of a
conforming. billing statement, the City shall promptly process payment.. PROVIDED,
HOWEVER, the City reserves the right to prioritize scoped work and accelerate- and/or delay
work tasks under the time frame set forth in Section II herein. The Consultant's labor rates and
billing fees shall be as delineated in Exhibit C.
Consultant shall not perform work beyond the Scope of Work, nor shall be compensated
for such work, unless the Scope of Work or amount of compensation is modified pursuant to this
Agreement. Consultant shall only be compensated for additional services if requested pursuant
to Section I and, if not otherwise .provided, such compensation shall be in accordance with
Exhibit C.
If a billing statement _does not conform to this Agreement, the City may withhold
payment until the statement is brought into compliance. Such withholding does not relieve
Consultant of its obligations under this Agreement.
IV. R~lationship of Parties: Consultant represents that it is skilled in the matters addressed
in the Scope of Work and is performing independent functions and responsibilities within its
field of expertise. Consultant and its personnel are independent Consultants and not employees
of the City. Consultant and its personnel have no authority to bind the City or to control the
Bremerton/River Oaks Communications Corp
Cable Franchise Renewal
l~
City's employees and other Consultants. None of the benefits provided by the City to its
employees, including, but not limited to, .compensation, insurance, and unemployment insurance
are available from the City to the employees, agents, representatives, or sub~Consultants of the
Consultant. Consultant will be solely and entirely responsible for its acts and for the acts of
Consultant's agents, employees, representatives and sub-Consultants durin,g the perfol"lillQlce of
this Agreement. The City may, during the term of this Agreement, engage other independent
Consultants to perform the same or similar. work.
As. an . independent Consultant, Consultant is responsible for its own management. The
City's administration and enforcement of this Agreement shall not be deemed an exercise of
managerial control over Consultant or its personnel.
As an independent Consultant, Consultant is responsible for payment of all taxes and
licensing fees necessary to perform its obligations under this Agreement. These taxes and fees
include but are not limited to State industrial insurance, Business & Occupation, State
professional licensing, and City business licensing. If any taxes or fees due the City have been
declared delinquent, the City may withhold the delinquent amoUIlt, plus any additional charges
arising from the delinquency, from any payments due Consultant.
v. Indemnification:. Consultant shall defend, indemnify and hold the City, its officers,
officials, employees, agents and volunteers harmless from any and all claims, injuries, damages,
losses or suits, including all legal costs and attorney fees, arising out of or inconnectionwith the
performance of this Agreement, except for that portion ofthe injuries ~d damages caused by the
City's sole negligence.
The City's review or acceptance of any of the work when completed shall not be grounds
to avoid any of these covenants of indemnification. "
Should a court of competent jurisdiction determine that this Agreement is subject to
RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons
or damages to property caused by or resulting from the concurrent negligence of the Consultant
and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability
hereunder shall be only to the extent ofthe Consultant's negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S
. .
WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY
FOR THE PURPOSES OF TillS INDEMNIFICATION. THE PARTIES FURTHER
ACKNOWLEDGE THAT THEY HAVE MUTUALL Y NEGOTIATED THIS WAIVER.
The provisions of this section shall survive the expiration or termination of this Agreement.
VI. Insurance: The Consultant shall procure and maintain for the duration of the Agreement,
insurance against claims for injuries to persons or damage to property which may arise from or in
connection with the performance of the work hereunder by the Consultant, its agents,
representatives, employees, or sub-Consultants.
Bremerton/River Oaks Communications Corp
Cable Franchise Renewal '
I.",..
.. Before beginning work on the project described in this Agreement, the Consultant shall
provide a Certificate oflnsurance evidencing:
1. Automobile Liabilitv insurance with limits no less than $1,000,000 combmed single
limit per accident for bodily injury and property damage; and .
2. . Commercial General Liabilitv msurance written on an occurrence basis with limits no
. less than $1,000,000 combined single limit per occUrrence and general aggregate for
personal injury, bodily injury and property damage. Coverage shall include but not be
limited to: blanket contractual; broad form property damage; explosion, collapse and
underground (XCV) if applicable; and employer's liability; and
3. Excess Liabilitv insurance with limits not less than 1,000,000 limit per occurrence and
aggregate.
4. Professional Liabilitv insurance with limits no. less than $1,000,000 limit per
occurrence/claim.
Any payment of deductible or self insured retention shall be the sole responsibility of the
Co~ultant.
All required policies shall be provided on an "occurrence" basis except professional
liability insurance (if required), which may be provided on a "claims-made" basis.
The City shall be named as an additional insured on the Commercial General Liability
insurance policy, as respects work performed by or on behalf of the Consultant and a copy of an
endorsement that :is acceptable to the City, which names the City as an additional insured shall be
attached to the Certificate oflnsurance. The City reserves the right to receive a certified copy of
all the required insurance policies and endorsements. The City further reserves the right to reject
any unacceptable policies and/or endorsements.
The Consultant's insurance shall be primary insurance as respects the City and the City
shall be given thirty (30) days prior written notice by certified mail, return receipt requested, of
any cancellation, suspension or material change in coverage.
. The City also reserves its unqualified right to require at any time and for any reason,
proof of coverage in the form ofa duplicate of the insurance policy with all endorsements as
evidence of coverage.
VII. General Conditions:
A: Reports and Illformation: When requested by the City, Consultant shall furnish
periodic reports and documents on matters covered by this Agreement. The reports. and
documents shall be furnished in the time and form requested. Consultant shall maintain
accounting records in accordance with Generally Accepted Accounting Principles (GAAP) to
substantiate all billed .amounts.
Bremerton/River Oaks Communications Corp
Cable Franchise Renewal .
B. Ownership and Use of Records and Documents: Original documents, drawings,
designs and reports, including those in electronic format, developed under this Agreement are the
property of the City. All written information submitted by the City to the Consultant in
connection with the services performed by the. Consultant under this Agreement will be
safeguarded by the Consultant to at least the same extent as the Consultant safeguards like
information relating to its own business; If such information is publicly available or is already in
Consultant's posSession or known to it, or is rightfully obtained by the Consultant from third
parties, Consultant shall bear no responsibility for its disclosure, inadvertent or otherwise.
All data, documents and files created by Consultant under this Agreement may be stored
at Consultant's offices in Colorado. Consultant shall make such data, documents, and files
available to the City upon its request at all reasonable times for the purpose of editing, modifying
and updating as necessary until such time as the City is capable of storing such information in
the City's offices: Duplicate copies of this information shall be provided to the City upon its
request, and at reasonable cost.
All documents, including all reports, drawings, specifications, computer software or other
items prepared or furnished by Consultant pursuant to this Agreement, are instruments of service
with respect to the project and are the property of the City. Any reuse by the City for other than
the specific purpose intended will be at City's sole risk.
c. Work Performed at Consultant's Risk:. Consultant shall take all precautions necessary
and shall be responsible for the safety of its employees, agents, and sub-consultants in the
performance of the work hereunder and shall utilize all protection necessary for that purpose.
All work shall be done at Consultant's own risk, and Consultant shall be responsible for any loss
of or damage to materials, tools, or other articles used or held for use by Consultant in
connection with the work.
D. Place of Work: The Consultant shall perform the work authorized under this
Agreement at its offices in Colorado. Meetings with the City staff as described in Exhibit A,
Scope of Work, shall take place at the City's offices, or at locations mutually agreed upon by the
parties.
E. Entire Agreement: This Agreement and its Exhibits constitutes the entire agreement
between the Parties, and the Parties acknowledge that there are no other agreements, written or
oral, that have not been set forth in the text ofthis Agreement.
F. Severability: Should any part of this Agreement be found void, the balance of the
Agreement shall remain in full force and effect.
G. Modification: This Agreement may only be modified by written instrument signed by
both Parties.
H. Written Notices: All communications regarding this Agreement shall be sent to the
parties at the addresses listed below by registered or I st class mail, or, by personal service, and
Bremerton/River Oaks Communications Corp
Cable Franchise Renewal
shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement
or such other address as may be hereafter specified in writing.
Paula Johnston, City Clerk
City ofBremerton
345 6th Street, Suite 600
. Bremerton, WA 98337
Thomas F. Duchen, President
River.Oaks Communications Corp.
Mining Exchange Building
8 S. Nevada Ave., Suite 515
Colorado Springs, Colorado 80903
I. Waiver: Failure to' .enforce any provision of this Agreement shall not be deemed a
waiver ofthat provision. Waiver of any right or power arising out ofthis Agreement shall notbe
deemed waiver of anyotherrightor power.
1. Non':Waiver of Breach: The failure ofthe City to insist upon strict performance of any
of the covenants and agreements contained herein, or to exercise any option herein conferred in
one or more instances shall not be construed to be a waiver or relinquishment of said covenants,
agreements or options, and the same shall be and remain in full force and effect.
K. Compliance with Laws: Consultant, shall comply with all applicable Federa~ State,
and local laws in, performing its obligations under this Agreement.
L. Choice of Law and Venue: This Agreement shall. be interpreted according to the laws
ofthe State of Washington. Any judicial action to resolve disputes arising out of this Agreement
shall be brought in Kitsap County Superior Court.
M. Attorneys' Fees: In the event of litigation to enforce any of the terms or provisions
herein, each party shall pay all its own costs and attorney's fees.
N. Assignment: Any assignment of this agreement by the Consultant without the written
consent of the City 'shall be void.
VID. Nondiscrimination: Consultant shall not discriminate in employment or services to the
public on the basis of race, color, national origin, sex, religion, age, marital status, or disability,
except for employment actions based on bona fide occupational qualification.
IX. Terminatio~: This Agreement shall remain in force until completion and acceptance of
the services, terminated by written instrument upon mutual consent, or by the City of Bremerton
for convenience. This Agreement may be immediately terminated for cause by a Party if the
other Party substantially fails to perform through no fault of the terminatihg Party, and the non..,
performing Party does not commence correction of the failure of performance within thirty (30)
days of the terminating Party's sending notice to the non-performing Party. Any Notice by
. Consultant shall include a report showing the status of all items listed in the Scope of Work
current through the termination date.
If the City receives reimbursement by any federal, state, or other source for work described in
Section I herein, and that funding is withdrawn, reduced or limited in any way, or the project is
Bremerton/River Oaks Communications Corp
Cable Franchise Renewal
cancelled or substantially re4uced after the execution date of this Agreement and prior to the
completion ofthe work, the City may summarily terminate this Agreement.
A. Excusable Delays: The right of Consultant to proceed shall not be terminated nor
shall Consultant be charged with liquidated damages for any delays in the completion of the
work due to: I) any acts of the federal government in controlling, restricting, or requisitioning
materials, equipment, tools, or labor by reason of war, national defense, or other national
emergency; 2) any acts of the City, its consultants, or other public agencies causing such delay;
and 3) causes not reasonably foreseeable by the parties at the time of the execution of the
Agreement that are beyond the control and without the fault or negligence of the Consultant,
including, but not restricted to, acts of God, fires, floods, strikes, or weather of unusual severity.
PROVIDED, HOWEVER, that the Consultant must promptly notify the City within ten (10)
calendar days in writing of the cause of the delay. If, on the. basis of the facts and the terms of
this Agreement, the delay is properly excusable, the City shall, in .writing, extend the time for
completing the work for a period oftime commensurate with the period of excusable delay.
B. Rights Upon Termination: In the event of termination, the City shall pay for all
services performed by the Consultant to the effective date of termination, as described on a [mal
invoice submitted to the City. After termination, the City may take possession of all records and
data within the Consultant's possession pertaining to this project which may be used by the City
without restriction. Any such use not related to the project, or work by the City after the
effective. date of termination which Consultant was contracted to perform, shall be without
liability or legal exposure to the Consultant.
~
RIVER OAKS COMMUNICATIONS
CORPORATION
~~!ZfU
L 0~omas F. Duchen
its: President ,
Date: / /:} /0 ~
L .
By: Cary Bozeman
its: Mayor / .? dp
Date: .....-
r
Attest:
City
R:\LEGAL\Contracts\FORMS\Professional Services Agreement Form (2003).doc
Bremerton/River Oaks Communications Corp
Cable Franchise Renewal
~ . ".
EXHmIT "A"
SCOPE OF WORK
Scope of Work regarding the Informal Renewal Process as agreed to by the City and
Consultant relating to Consultant's busmess services:
I. Develop timeline for cable television franchise renewal process.
2. Develop a list of goals/objectives to be addressed in the new franchise.
3. . Participate in meetings with the City and Comcast.
4. Address PEG Access related issues.
5. Provide information to the City regarding what Corneast has agreed to in several
other franchises in the area
6.
equipment.
Work with the City with respect to BKAT funding for PEG Access facilities and
7.
Comcast.
Take the lead in drafting the franchise and participate in negotiating sessions with
8. Perform a targeted Needs Assessment (up to $10,000 in time and expenses), draft a
City Website Survey (to be tabulated by the City), review ,Call-in Comment Lme comments (to be
initially summarized by the City), hold two Focus Groups of City and BKAT/School Officials and
one Public Meeting (to gather citizen input) regarding Comcast's performance and the City's future
cable television.needs.
9. Identify other matters for consideration by the City.
10. The Consultant will confer with City Staff insofar as providing advice and guidance
regarding the Informal Franchise Renewal Process.
It shall be the City's decision whether to renew or not renew or grant or not grant a cable television
franchise to Comcast.
A further description of the Targeted Needs Assessment that will be performed by Consultant is as
follows:
· Gather baseline information.
Bremerton/River Oaks Communications Corp
Cable Franchise Renewal
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. Identify affected stakeholders. in the City (for example, City Departments, BKAT, other PEG
Access producers and users, public schools [K-12], higher education institutions, the library an,d
Chamber of Commerce).
. Prepare Survey instruments and survey City Departments, BKAT, other PEG Access producers
and users, public schools (K-12), higher education institutions, the library and Chamber .of
Commerce.
· Hold one (I) meeting/workshop for City Departments, one (I) meeting/workshop for Schools,
the Library, BKAT and Public Access producers and one (I) Meeting for the public and other
interested parties. These three (3) Meetings shall be scheduled to take place on the same day to
provide economies of scale. Consultant shall prepare PowerPoint Presentations to be utilized
during these three (3) Meetings.
· Review information gathered.
· Prepare an Executive Summary outlining the Needs Assessment results.
Bremerton/River Oaks Communications Corp
Cable Franchise Renewal
..j t ._. r \J< ....
EXBmIT "B"
WORK SCHEDULE
The Scope of Work described in Exlnbit "A" will be completed by the Consultant by December 31,
2006 to the extent practicable, it being acknowledged and agreed that Consuhant cannot compel
Comcast to perform its neceSsary work and :finalize a franchise by that date.
Bremerton/River Oaks Communications Corp
Cable Franchise Renewal
J .. '_ . ~ ..
EXHmIT "e"
FEE SCHEDULE
In consideration of the services to be performed pursuant tQ the Scope of Services, the City
agrees to pay Consultant on a time and reimbursable. cost basiS according to the following schedule:
Hourly billing rates: $195.00/hour
Reimbursable direct costs:
Federal Express
Postage
Long Distance Telephone Charges
Typing
Fax
Copies
Travel, Meals and Lodging
It is.estimated that from the effective date of this Agreement until December 31, 2006,
Consultant would work on the City's behalf in connection with matters described in the Scope of
Services with a cap of $65,000. Consultant commits to perform the portion of the Services, which
are solely within the control of Consliltant, and not subject to expansion either by the City or other
circumstances beyond the control of Consultant for a total cost not in excess of the cap of$65~000.
The Formal Process is time consuming and expensive and would involve additional expenditures by
the City to Consuhant if the City were to be involved in the Formal Process, if the City issues a
ruling adverse to Comcast, if any engineer's involvement, Technical Assessment, extensive Needs
Assessment, Residential Surveys, I-Net work or Franchise Fee Audit (all of which are outside the
Scope of Services) were requested by the City. If the City requested additional work that is outside
of the . Scope of Services, Consultant would bill the City separately for.those services and for the
amount of services requested by the City on an hourly plus expense basis at the hourly rates
specified above.
The City will also be responsible for all administrative costs associated with the Surveys (printing,
copying, postage/return postage, etc.).
Bremerton/River Oaks Communications Corp
Cable Franchise Renewal