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HomeMy WebLinkAboutCOMMUNICATIONS SUPPORT GROUP, INC. (RISK, JOHN)iNaURANCE ON FILE WORK MAY PROCEED A-2002-155 014TIL INSURANCE EXPIRES 10 - 24-0-3 STANDARD CONSULTANT AGREEMENT CLERK OF. COUNCIL DATEi �k-1-0 ZHIS AGREEMENT, made and entered into this 5 day of 2002 by and between Communications Support Group, Inc., a California corporatio erem er F 1 tj "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of consulting services for franchise renewal. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform those services as set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit B. The total sum to be expended under this Agreement, shall not exceed $ 15,000.00 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on June 30, 2003, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of the Parks, Recreation and Community Services Agency and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit C upon execution of this Agreement and shall be approved in form by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. (reserved) e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: and, Executive Director Parks, Recreation, and Community Services Agency City of Santa Ana 888 West Santa Ana Blvd., Suite 200 (M-23) Santa Ana, California 92702 telefacsimile (714) 571-4235 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Consultant: Communications Support Group, Inc. 505 Scenic Avenue Piedmont, CA 94611-3422 510-547-6206 Attn: John Risk A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: Cristine L. haw Assistant City Attorney RECOMMENDED FOR APPROVAL: Jon "Rip Ribble Executive Director Parks, Recreation, and Community Services Agency City of Santa Ana CITYANTA A DAVID N. REAM City Manager CONSULTANT Communications Support Group, Inc. A California Corporation J 'sk sident 33-0390 7J4 Employer ID # Scope of Services Under the general direction of the Executive Director of Parks, Recreation and Community Services, consultant shall provide planning, fact-finding, strategy development, financial reviews and negotiation services all related to the renewal, renegotiation and/or transfer of the City cable television franchise, currently held by Adelphia Communications. The consultant shall submit to the Executive Director a detailed work plan with estimated time allocation for each task or series of tasks, and shall update it as needed during the term of this Agreement. EXH COMMUNICATIONS SUPPORT GROUP. INC. 505 SCENIC AVENUE PIEDMONT, CA 94611-3422 VOICE: (510) 595-0405 FAX: (510) 547-6206 EMAIL: jriskraconcentric.net July 5, 2002 Mr. Rip Ribble Executive Director, PRCS City of Santa Ana 888 W. Santa Ana Blvd., Ste. 200 Santa Ana, CA 92702 SUBJECT: CONSULTING SERVICES —ADELPHIA RENEWAL Dear Rip: This letter addresses CSG's proposed services related to assisting the City in renewing a franchise agreement with Adelphia Communications. It specifically, summarizes services with a cost not to exceed $15,000.00. CSG has assisted cities renew franchise or managed cable television franchise matters in the following cities: ➢ Alameda, CA (TCI) ➢ Irvine, CA (Dimension and ➢ Albany, CA Cox Communications) (Century/Adelphia) ➢ Manhattan Beach ➢ Anaheim, CA (Century) (Century/TCl/Adelphia) ➢ Arcadia, CA (Century/ ➢ Maryland Heights, MO TCl/AT&T/Adelphia) (AT&T) ➢ Berkeley, CA (TCl/AT&T) ➢ Mission Viejo, CA (Adelphia ➢ Beverly Hills, CA Communications) (Century/TC]/Adelphia) ➢ Mendocino County, CA ➢ Chino, CA (Adelphia) (TCl/AT&T/Adelphia) ➢ Monrovia, CA (TCl/Century) ➢ Chino Hills, CA ➢ Pasadena, CA (Charter) (Century/TCl/AT&T/Adelphia) ➢ Petaluma, CA (AT&T) ➢ Fullerton, CA (Comcast) ➢ Redondo Beach ➢ Fort Bragg, CA (Adelphia) (Century/TCl/Adelphia) ➢ Hermosa Beach, CA ➢ Santa Ana, CA (Comcast) (Century) ➢ Santa Barbara, CA (Adelphia ➢ Indian Wells, CA (Colony) Communications) ➢ Walnut, CA (Charter) SERVICES TO BE PERFORMED: Ideally, our experiences in negotiating with Adelphia Communications, lead us to strongly recommend that the City engage us to perform the following tasks: Communications Support Group, Inc. © 2002 . Proposal Santa Ana 1 of4 EXHIBIT 8 Mr. Rip Ribble Executive Director, PRCS City of Santa Ana July 5, 2002 PHASE I- PLANNING, FACT-FINDING, STRATEGY DEVELOPMENT Task 1.1 Propose up to 28 hours to conduct research and provide comparative analysis with some supporting information on the trends analysis of franchise renewals involving cities in CSG's database. This task includes phone conferences with staff, preparing request letters, analyzing data, and writing a report. Task 1.2 Propose up to 4 hours to outline methods for obtaining information from Adelphia related to future services and technologies. Task 1.3 Propose up to 6 hours to draft sample letters for City to use in corresponding to Adelphia regarding issues related to renewal. Estimated fees for Tasks 1.1-1.3 are $5,700.00. PHASE If — FINANCIAL REVIEWS Task 2.1 — One -Year Franchise Fee Review CSG proposes to provide up to 10 hours to assist staff accountants of the City in reviewing the previous studies and in performing an abbreviated procedures audit of Adelphia franchise fee payments for the past four quarterly payments. Estimated fee for Task 2.1 is $1,500.00. Task 2.2 - Financial Analysis CSG proposes up to 15 hours of financial analysis to "weigh" community needs against future revenue assumptions using return on investment (R01) and rate setting methodology based on FCC rules. This will help to determine the approximate costs per subscriber of the various community needs which were articulated in the ascertainment process. Estimated fee for Task 2.2 is $2,250.00. PHASE III — NEGOTIATIONS Task 3.1 — Participate In And Manaqe Renewal Negotiations CSG will provide assistance to the City Attorney during the initial renewal negotiations and advise on specific technical and negotiation matters as needed. This task assumes that the City Attorney's Office will edit the franchise agreement during and through the conclusion of the City's negotiations with Adelphia. All work proposed in this section is performed on a time -and -materials basis. We propose an allocation of up to 34 hours of consultant time for Communications Support Group, Inc. © 2002 Proposal Santa Ana 2 of 4 Mr. Rip Ribble Executive Director, PRCS City of Santa Ana July 5, 2002 meetings and strategy sessions. Estimated fee for Task 3.1 is approximately $5,100.00. SCHEDULE OF FEES AND TERMS All of our work proposed herein is to be performed on an hourly, time -and - materials basis. We will bill monthly and apprise the City of the status of work related to our budgetary estimates. Directly related project expenses (i.e., travel, lodging, rental car, and meals) are billed at cost plus ten percent (10%). Travel time for local staff is billed at straight time. CSG invoices shall be due and payable upon presentation, and shall be considered past due 30 days after submission. Balances owed to us for more than 30 days after invoice date may, at our option, accrue compound interest at 1.5% per month (18.0% per year) from the 30th day after the invoice date. CSG agrees to perform services under a purchase order at our discounted (former client) hourly rates as shown in the chart below. We estimate approximately $450.00 will be needed to cover costs of airfare and car rental to attend up to two on -site meetings. CSC Hourly Billina Rates Title Hourly Rate Partner $150.00' Senior Associate $115.00 Research Associate $75.00 Clerical $55.00 CSG agrees that all work performed under these tasks is to be assigned at the direction of the City. Rip, as I stated in our phone conversation, given the unique nature of franchise negotiations with Adelphia, project costs are difficult to estimate and vary on a case -by -case basis. CSG relies on City staff assistance to gather certain documents. Insufficient planning and assistance related to the work of City staff will add time and costs to the project, not factored into the estimate of expenses described above. We would agree to perform any or all work described herein under a combination of purchase orders between your Department and the City Attorney. ' (New Client Rate is $175.00 per hour) Communications Support Group, Inc. © 2002 Proposal Santa Ana 3 of Mr. Rip Ribble Executive Director, PRCS City of Santa Ana July 5, 2002 We can discuss the method of retaining our services in greater detail after you have had a chance to review this proposal letter. We acknowledge the fact that a great amount of uncertainty surrounds the status of Adelphia Communications at this time. In that all the renewal tasks described above are proposed on a time and materials basis, we remain flexible to modify any task to better serve your needs related to a change of control or bankruptcy proceedings if these were to occur. Thank you for thinking of CSG. I especially look forward to working with you, Joe, Debra, Bill Rudell, and Dave Ream on this project. Sincerely, n Risk sident Communications Support Group, Inc. © 2002 Proposal Santa Ana 4 of 4