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HomeMy WebLinkAbout3H Cable Comm Consult AG-C-040 2004 AGREEMENT FOR PROFESSIONAL SERVICES AG-C-040 THIS AGREEMENT made and entered into by and between the CITY OF AUBURN, a Municipal Corporation in King County, Washington, hereinafter referred to as "CITY" and with, 3H Cable Communications Consultants, a Washingtcm corporation, whose address is 504 E Main Street Auburn WA 98002, hereinafter referred to as "CONSULTANT". In consideration of the covenants and conditions of this Agreement, the parties hereby agree as follows: 1. SCOPE OF WORK. See Exhibit A, attached and by this reference made part of this Agre,ement. 2. TERM. The CONSULTANT shall be available on an on-call basis to provide professional services described in the above section 1 to the CITY throughout the 2004 calendar year. 3. COMPENSATION. The CONSULTANT shall be paid by the CITY for completed service:> rendered at a fixed fee of $33,420.00. The total amount of the agreement is not to exceed $33,420.00. Such payment shall be full compensation for work performed or services rendered. The CONSULTANT shall submit an itemized bill to the CITY prior to payment. The CONSULTANT shall be paid by the CITY for direct non-salary cost, per attached Exhibit B, at the actual cost to the CONSULTANT plus 10%. Exhibit B is attached hereto and by reference made a part of this Agreement. These charges may include, but are not limited to the following items: reproduction fees, communication fees, and mileage. The billing for non-salary cost, directly identifiable with the project, --------------------------------------------- Agreement for Professional SelVices AG-C·040 November 12, 2003 Page 1 of10 --~--~-------...--- 1111 I shall be submitted as an itemized listing of charges supported by copies of the original bills, invoices, expense accounts and miscellaneous supporting data retained by the CONSULTANT. Copies of the original supporting documents shall be supplied to the CITY upon request. All above charges must be necessary for the services provided under the Agreement. In the event services are required beyond those specified in the Scope of Work, and not included in the compensation listed in this Agreement, a contract modification shall be negotiated and approved by the CITY prior to any effort being expe:nded on such services. 4. RESPONSIBILITY OF CONSULTANT. The CONSULTANT shall be responsible for the professional quality, technical accuracy, timely completion and the coordination of all studies, analysis, designs, drawings, specifications, reports and other services performed by the CONSULTANT under this Agreement. The CONSULTANT shall, without additional compensation, correct or revise any errors, omissions or other deficiencies in its plans, designs, drawings, specifications, reports and other services required. The CONSULTANT shall perform its services to conform to generally accepted professional engineering standards and the requirements of the CITY. Any approval by the CITY under this Agreement shall not in any way relieve the CONSULTANT of responsibility for the technical accuracy and adequacy of its services. Except as otherwise provided herein, neither the CITY'S review, approval or acceptance of, nor payment for, any of the services shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement to the full extent of the law. --------------------------------------------- Agreement for Professional Services AG-C-Q40 November 12, 2003 Page 2 of 10 III. I 5. INDEMNIFICA TION/HOLD HARMLESS. The CONSULTANT shall indemnify and hold the CITY and its officers and employees harmless from and shall process and defend at its own expense all claims, demands, or suits at law or equity arising in whole or in part from the CONSULTANT'S negligence or breach of any of its obligations under this Agreement; provided that nothing herein shall require the CONSULTANT to indemnify the CITY against and hold harmless the CITY from claims, demands or suits based solely upon the conduct of the CITY, their agents, officers and employees and provided further that if the claims or suits are caused by or result from the concurrent negligence of (a) the CONSULTANT'S agents or employees and (b) the CITY, their agents, officers and employees, this indemnity provision with respect to (1) claims or suits based upon such negligence, (2) the costs to the CITY of defending such claims and suits, etc. shall be valid and enforceable only to the extent of the CONSULTANT'S negligence or the negligence of the CONSULTANT'S agents or employees. The provisions of this section shall survive the expiration or termination of this ,6,greement. 6. INDEPENDENT CONTRACTOR/ASSIGNMENT. The parties agree and understand that the CONSULTANT is an ind,ependent contractor and not the agent or employee of the CITY and that no liability shall attach to the CITY by reason of entering into this Agreement except as otherwise provided herein. The parties agree that this Agreement may not be assigned in whole or in part without the written consent of the CITY. 7. INSURANCE. CONSULTANT shall procure and maintain for the duration of this A~ reement, commercial general liability insurance against claims for injuries to persons or damage to property which may arise from or in conjunction with services provided to --------------------------------------------- Agreement for Professional Services AG-C-D40 November 12, 2003 Page3of10 1- ---------- , the CITY by the CONSULTANT, its agents, employees or subcontractors, under this Agreement. The CONSULTANT agrees to provide commercial general liability insurance and shall maintain liability limits of no less then ONE MILLION DOLLARS ($1,000,000) per occurrence and ONE MILLION DOLLARS ($1,000,000) general aggregate. The CONSULTANT shall also provide and maintain professional liability coverage in the minimum liability limits of ONE MILLION DOLLARS ($1,000,000) per claim and TWO MILLION DOLLARS ($2,000,000) aggregate. The general liability coverage shall also provide that the CITY, its officers, employees and agents are to be covered as additional insured as respects: Liability arising out of the services or responsibilities performed by or under obligation of the CONSULTANT under the terms of this Agreement, by the CONSULTANT, its employees, agents and subcontractors. Both the general liability and professional liability coverage shall provide that the CONSULTANT'S insurance coverage shall be primary insurance as respects the CITY, its officials, employees and agents. Any insurance or self insurance: maintained by the CITY, its officials, employees or agents shall be excess to the CONSULTANT'S insurance and shall not contribute with it. Each insurance policy required by this section of the Agreement shall be endorsed to state that coverage shall not be suspended, voided, or canceled except when thirty (30) days prior written notice has been given to the CITY by certified mail return receipt requested. All insurance shall be obtained from an insurance company authorized to do business in the State of Washington. The CONSULTANT agrees to provide copies of the certificatøs of insurance to the CITY specifying the coverage required by this section within 14 days of the execution of this Agreement. The CITY reserves the right to require that complete, certified copies of all required insurance policies be submitted tl) the CITY --------------------------------------------- Agreement for Professional Services AG-C-040 November 12,2003 Page 4 of 10 I at any time. The CITY will pay no progress payments under Section 3 until the CONSULTANT has fully complied with this section. 8. NONDISCRIMINATION. The CONSULTANT may not discriminate regarding any services or activities to which this Agreement may apply directly or through contractual, hiring, or other arrangements on the grounds of race, color, creed, religion, national origin" sex, age, or where there is the presence of any sensory, mental or physical handicap. 9. OWNERSHIP OF RECORDS AND DOCUMENTS. The CONSULTANT agrees that any and all drawings, computer disc:s, documents, records, books, specifications, reports, estimates, summaries and such other information and materials as the CONSULTANT may have accumulated, prepared or obtained as part of providing services under the terms of this Agreement by the CONSULTANT, shall belong to and shall remain the property of the CITY OF AUBURN. In addition, the CONSULTANT agrees to maintain all books and records relating to its operation and concerning this Agreement for a period of six (13) years following the date that this Agreement is expired or otherwise terminated. The CONSULTANT further agrees that the CITY may inspect any and all documents held by the CONSULTANT and relating to this Agreement upon good cause at any reasonable time within the six (6) year period. The CONSULTANT also agrees to provide to the CITY, at the CITY'S request, the originals of all drawings, do(;uments, and items specified in this Section and information compiled in providing services to the CITY under the terms of this Agreement. ---------------.----------------------------- Agreement for Professional Services AGMC-040 November 12. 2003 Page5of10 . 1 O. CERTIFICATION REGARDING DEBARMENT. SUSPENSION. ANI) OTHER RESPONSIBILITY MATTERS-PRIMARY COVERED TRANSACTIONS. The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency; (b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission or fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state, or local) transaction or contract under a public transaction; violation of federal or state antitrust statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stc,len property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in paragraph "(b)" of this certification; and (d) Have not within a three-year period preceding this application/proposal had one or more public transactions (federal, state, or local) terminated for cause or default. Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. --------------------------------------------- Agreement for Professional Services AG-C-040 November 12,2003 Page 6 of 10 ._~_._------.~ r----- 11. TERMINATION OF AGREEMENT. This Agreement may be terminated by either party upon twenty (20) days written notice to the other party, and based upon any cause. In the event of termination due to the fault of other(s) than the CONSULTANT, the CONSULTANT shall be paid by the CITY for services performed to the date of termination. Upon receipt of a termination notice under the above paragraph, the CONSULTANT shall (1) promptly discontinue all services affected as directed by the written notice, and (2) deliver to the CITY all data, drawings, specifications, reports, estimates, summaries, and such other information and materials as the CONSULTANT may have accumulated, prepared or obtained in performin~ this Agreement, whether completed or in process. 12. GENERAL PROVISIONS. 12.1. This Agreement shall be governed by the laws, regulations and ordinances of the City of Auburn, the State of Washington, King County, and where applicable, Federal laws. 12.2. All claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach hereof, except with respect to claims which have been waived, will be decided by a court of competent jurisdiction in King County, Washington. Pending final decision of a dispute hereunder, the CONSULTANT and the CITY shall proceed diligently with the performance of the services and obligations herein. 12.3. In the event that any dispute or conflict arises between the parties while this Agreement is in effect, the CONSULTANT agrees that, notwithstandin9 such dispute or conflict, the CONSULTANT shall continue to make a good faith øffort to -~------------------------------------------- Agreement for Professional Services AG-C..Q40 Novennber12,2003 Page 7 of 10 I cooperate and continue work toward successful completion of assigned duties and responsibilities. 12.4. The CITY and the CONSULTANT respectively bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement with respect to all covenants to this Agreement. 12.5. This Agreement represents the entire and integrated Agreement between the CITY and the CONSULTANT and supersedes all prior negotiations, representations or agreements either oral or written. This Agreement may be amended only by written instrument signed by both the CITY and the CONSULTANT. 12.6. Should it become necessary to enforce any term or obligation of this Agreement, then all costs of enforcement including reasonable attorneys fees and expenses and court costs shall be paid to the substantially prevailing party. 12.7. The CONSULTANT agrees to comply with all local, state and federal laws applicable to its performance as of the date of this Agreement. 12.8. If any provision of this Agreement is invalid or unenforceable, the remaining provisions shall remain in force and effect. 12.9. This Agreement shall be administered by Lon Hurd, on behalf of the CONSULTANT, and by the Mayor of the CITY, or designee, on behalf of the CITY. Any written notices required by the terms of this Agreement shall be served on or mailed to the following addresses: City of Auburn Attn: Dennis Dowdy, City Engineer 25 W Main Street Auburn WA 98001 Phone: 253.931.3023 Fax: 253.931.3053 E-mail: ddowdy@cLauburn.wa.us 3H Cable Communications Consultants Attn: Lon Hurd 504 E Main Street Auburn WA 98002 Phone: 253.833.8380 Fax: 253.833.8430 E-mail: lahurd3hmc@aol.com --------------------------------------------- Agreement for Professional Services AG-C-Q40 November 12, 2003 Page 8 of 10 II 12.10. All notices or communications permitted or required to be given under this Agreement shall be in writing and shall be delivered in person or deposited in the United States mail, postage prepaid. Any such delivery shall be deemed tel have been duly given if mailed by certified mail, return receipt requested, and addressl;¡d to the address for the party set forth in 12.9, or if to such other person designated by a party to receive such notice. It is provided, however, that mailing such notices or communications by certified mail, return receipt requested is an option, not a requirement, unless specifically demanded or otherwise agreed. Any party may change his, her, or its address by giving notice in writing, stating his, her, or its new address, to any other party, all pursuant to the procedun3 set forth in this section of the Agreement. 12.11. This Agreement may be executed in multiple counterparts, e,ach of which shall be one and the same Agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party. ----~---------------------------------------- Agreement for Professional SeNiees AG-C-040 November 12, 2003 Page90f10 ATTEST: Á1z£à dJt/~ Danielle E. Daskam, City Clerk æv~6 Date -L'7JZb 03 File: H:\ConsultantslAgreements\2004IAGC040 Agreement --------------------------------------------- Agreement for Professional Services AG-C-040 November 12, 2003 Page 10 of 10 CONSULTANTS By: Title: ¡:7teð¡ ¡;>¿"AI-r Federal Tax ID # 91-1052027 ------,---- EXHIBIT A PROJECT AND SCOPE OF WORK Consultant shall do, perform, or cause to be done and performed in a good and professional manner the following described work in accordance with all applicable state, federal and City laws, in a workmanlike manner consistent with acceptE~d practices for other similar services. This contract shall be governed by the laws of the State of Washington. A. Cable Television: 1. Performance Analvsis. Consultant shall inspect and analyze the technical and operational effectiveness of the City's present cable television franchise. A report of such findings shall be made to the Mayor or his designee up()n the determination by the Consultant that non-compliance with the City Ordinance and/or FCC regulations exists. 2. UpQrade Evaluation. Consultant shall inspect and verify that all features proposed by the cable operator and duly adopted by ordinance are constructed and/or performed in a workmanlike manner on a time basis. This will include, but not be limited to such items as type and quality of new components, workmanship of new construction, line extension density, system leakage, channel capacity, local access equipment, public connections, rates and programming. A report of any deficiencies discovered will be made immediately to the Mayor or his designee. 3. Consumer Protection and Complaints. Consultant shall assume respc)nsibility for reviewing and promptly responding to all public inquiries regarding cable television services. Consultant shall make every effort to bring such inquiries of complaints to a satisfactory conclusion by negotiation with the cable operator whenever possible. On-site inspection of areas of dispute will be performed when necessary for reconciliation between the citizen and the cable operator. 4. Senior Citizen/Disabled Person Discounts. Consultant shall be responsible for certifying to the cable operator(s) that applicants meet age and income limitations incorporated in Washington State guidelines. 5. Ordinance Compliance. Consultant shall monitor time and other trigg,ering criteria when appropriate that will permit the City to request additional non- entertainment features such as Public, Educational and Government (pEG) access and implementation of Institutional Networks (I-Nets). Additionally consultant will analyze and prepare report on such periodic reports from the operator that may be required by the Franchise Agreement. Page 1 of 4 -------------r---~--r.-"_.-~ 6. Compliance With the Cable Television Consumer Protection and Competition Act of 1992. Analyze cable operator's initial and subsequent submissions and justifications for determination of maximum permitted rates for regulatE¡d cable services, FCC benchmark tables and other FCC guidelines including, but not limited to, generally accepted accounting principles, justifications of cost of services, external pass through and, if appropriate, GNP-P1 configuraltions. Based upon these assessments and consistent with FCC regulations, Consultant shall advise Auburn to either: a. Approve submitted rates. b. Disapprove in whole or in part and either: 1. Order a refund. 2. Prescribe reasonable rates This function shall also include verifying operator adherence to FCC regulations such as carriage, positioning and must-carry restrictions as well as consumer relations minimums and mandated technical specifications. Consultant will also recommend fines or monetary forfeitures if allowable or appropriate in eVl3nt of non- compliance. 7. Access Utilization. Consultant shall review the status of citizen, educational and governmental use of the access channels provided. Such review will include the monitoring of the availability of such channels, time allocations providl3d for such use, and equitable sharing arrangements made by the franchisee. 8. Collection of Franchise Fees. Consultant shall determine through comparative analyses and audits, if required, that the franchisee is paying fully such fees as mandated by ordinance. Consultant shall follow up on delinquent payments if necessary, in order to ensure prompt and complete payment of such fees on a timely basis. B. Riaht of Wav: Consultant shall do, perform, or cause to be done and performed in a good and professional manner the following described work in accordance with all applicable state, federal and City laws, in a workmanlike manner consistent with accepted practices for other similar services. 1. Telecommunication Documents. Consultant shall work with the City staff to develop a broad plan for the administration of telecommunication providers. Consultant will additionally assist in the drafting of any formal change!> to or additional to the Cities Master Telecommunications Plan. 2. Coordination with Citv Staff. Consultant shall work with the City staff Ito insure coordinated efforts with those departments within the City responsiblE! for permitting, inspection and coordination of Telecommunications Facilities and the enforcement of City Ordinances. Page 2 of 4 3. Telecommunications Providers. Consultant shall assume responsibility for all correspondence with entities interested in providing telecommunications services or constructing telecommunications facilities within the City. Consultant will additionally answer all questions regarding telecommunications operations and assist any potential providers with their inquires including Telecommunications registrations, leases, or right of way agreements and franchises. 4. Upon the submittal of a formal application for telecommunication leases, or right of way agreements or franchise, consultant shall insure all appropriate documents have been received to enable the City to consider the application. Consultant will follow up to make sure any information missing is subs,equently provided. Consultant will negotiate on behalf of the City with an applicant to dev ~lop a final agreement, which will be forwarded onto staff for their review and final submission to the City Council for final action. Consultant will attend all meetings to answer questions as necessary. C. Documents. Consultant shall assume responsibility for the development and maintenance of current system maps showing the status of upgrading and locations of such efforts and other projects. Consultant shall maintain records of slJbscriber charges, channel allocations, performance tests, citizen's complaints as well as all other franchise records. D. Bond and Insurance. Consultant shall maintain a complete record of all bonds and insurance required by the franchise ordinances. Consultant shall immediately advise the City of any default of any such requirements. Consultant shalll monitor performance bonds to make recommendations, if necessary, to the City of any cause to exercise City options in the case of non-performance. E. FCC Reaulations. Consultant shall maintain and update a file of FCC re¡ ulations as they pertain to municipal franchise procedures. Consultant shall advise the City as to any significant change or modifications to these or any other Federal c,r State legislation applicable. F. Other Reports. Consultant shall prepare reports on other matters of impQrtance to cable television franchise and Telecommunication administration as they occur. These will include, but not be limited to, such items as changes in federal or state law, technological improvements effecting cable operations, financial information pertinent to the local system, new programming and similar developments. G. Newsletter. Consultant shall furnish appropriate members of the City government with a quarterly newsletter. This publication shall provide news and information of present and contemplated issues that may affect municipal cable television administration. Page 3 of 4 ---'-'--~-----.-,---- ...,....------~ H. Annual Reports. Consultant shall furnish a report to the City not less than once in a 12 month period, reviewing, analyzing and commenting upon activities in this field during this period. Page 4 of 4 EXHIBIT B DIRECT NON-SALARY REIMBURSABLE EXPENSES · Reproduction Fees · Communication Fees · Mileage at $0.365/mile or the current approved IRS rate. It is understood that all reimbursements are at cost and will be marked-up 10%. Subcontracts: The CONSULTANT, at the CITY'S request shall enter into subcontracts with other consultants, such as appraisers and/or environmental consultants, etc. If approved, the CITY shall reimburse the CONSULTANT for the actual cost of the subcontracts plus a 10% markup to cover the CONSULTANT'S additional overhead expense associated with ~he Subcontract. Page I of 1 AMENDMENT # 1 TO AGREEMENT # AG-C-040 BETWEEN THE CITY OF AUBURN AND 3H CABLE COMMUNICATION CONSULTANTS RELATING TO THE 2004 ANNUAL ON-CALL AGREEMENT FOR TELECOMMUNICATIONS AGREEMENTS THIS AMENDMENT is made and entered into this _ day of 2004, by and between the CITY OF AUBURN, a municipal corporation of the State of Washington (hereinafter referred to as the "CITY"), and 3H Cable Communications Consultants (hereinafter referred to as the "CONSUL TANT") , as a~ Amendment to the Agreement between the parties for AG-C-040 executed on the 23' day of December, 2003. The changes to the agreement are described as follows: 1. CONTRACT TERM: The contract term is extended to March 31, 2005. 2. SCOPE OF WORK: There is no change in the scope of work. 3. COMPENSATION: The amount of this amendment is $8,335. The total contract amount is increased to a total of $41,755. REMAINING TERMS UNCHANGED: That all other provisions of the Agreement between the parties for AG-C-040 executed on the 23rd day of December, 2003, shall remain unchanged, and in full force and effect. IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day and year first above written. 3H CABLE COMMUNICATIONS ~ ~-c- IS, Mayor .J ~~døL Ä ori. d signature ATTEST (Optional): ATTEST: jjl)£d¡~ Danielle E. Daskam, Auburn City By: Its: Approved as to form (Optional): D Attorney for (Other Party) -------------------------------------------------------------------- Amendment No. 1 for Agreement No. AG-C-040 3H CABLE COMMUNICATIONS Page 1 of 1 A~.I¡'·1 AMENDMENT #2 TO AGREEMENT NO. AG-G41O BETWEEN THE CITY OF AUBURN AND 3H CABLE COMMUNICATION CONSUL TA.NTS RELATING TO THE 2004 ANNUAL ON-GALL AGREEMENT FOR TELECOMMUNICATIONS AGREEMENTS THIS AMENDMENT is made and entered into this ~day of ~ 2005, by and between the CITY OF AUBURN, a municipal corporation of the Sta of Washington (hereinafter referred to as the "CITY"), and 3H Cable Communications Consultants (hereinafter referred to as the "CONSULT ANT"), as an Amendment to the Agreement between the parties for AG-C-040 executed on the 23'd day of December, 2003, and amended by agreement dated the 29th day of December, 2004. The changes to the agreement are described as follows: 1. CONTRACT TERM: The contract term is extended to June 30, 2005. 2. SCOPE OF WORK: There is no change in the scope of work. 3. COMPENSATION: The amount of this amendment is $10,125. The total contract amount is increased to a total of $51 ,880. REMAINING TERMS UNCHANGED: That all other provisions of the Agreement between the parties for AG-C-040 executed on the 23n1 day of December, 2003, shall remain unl~hanged, and in full force and effect. IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day and year first above written. 3H CABLE COMMUNICATIONS ~~~d ATTEST (Optional): _J c:;:;> - ATTEST: JJa£1x ! Jj!L~ Danielle E. Daskam, Auburn City By: Its: Approved as to form (Optional): Attorney for (Other Party) ---------- Amendment No. 2 for Agreement No. AG-C-040 3H CABLE COMMUNICATIONS Page 1 of 1 un __________ -------------------_..----- ~. . .",/XS'!i;:·;/:·'·:·::../,~:s-é:···' ~CITYOF ''''",,,,,,,, ,,' '" "J:~1:R·" T "CtN~ ;,~ WASHINGTON vì.. ~i fo-q April 7, 2005 Peter B. Lewis, Mayor 25 west Main street * Aubum WA 98001-4998 * www.cl.cJubum.wa.uI * 253-931-3000 APR - 8 2005 CITY OF AUBURN (....;". . I . .......:... Lynne Hurd 3H Cable Communications Consultants 504 E Main St Auburn WA 98002 RE: Amendment No.2 to Agreement for Professional Services, AG-C-040 On-Call Agreement for Telecommunications Agreements Dear Ms. Hurd: Enclosed please find an executed copy of the above-referenced Amendment NO.2. This amendment extends the term of the agreement to June 30, 2005, and includes additional compensation in the amount of $10,125. Our records indicate that on 3/18/05, we processed a payment for your most recent invoice, #200504, in the amount of $8,355, leaving a current balance of $8,355 on the agreement. This current balance includes the additional compensation as noted in the amendment. If this balance does not match your records, please let me know. For the City's tracking and record keeping purposes, please reference AG-C-040 on all correspondence and related material. As the project manager, I am the designated contact for this agreement and all amendments. Questions, assignments and coordination shall be routed through me. You can contact me at 253.804.5050. ú/~ Joe Welsh Transportation Planner Department of Public Works /pm Enclosure cc: City Clerk Joe Welsh, Transportation Planner File 3 (AG-C-040) AUBURN * MORE TIiAN YOU IMAGINED