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CONTRA
TO: BOARD OF SUPERVISORS COSTA
FROM: John Sweeten, County Administrator r, COUNTY
DATE: De+C@E17IJer 5, 2003 cuv
r
SUBJECT: Amended Agreement for Services Related to
the Renewal of Caine Licenses.
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
REC'O'MMENDATION(S):
APPROVE and AUTHORIZE the County Administrator or his designee to execute a contract
amendment with the Cities of Clayton, Concord,Martinez, Pleasant Hill and Walnut Creek, the
Towns of Danville and Moraga and Miller & Van Eaton, L.L.P., to increase the payment limit by
$20,000 to a new payment limit of $66,157 for additional professional consulting services for the
development of a Needs Assessment Update Proposal.
FISCAL IMPACT:
Costs, not to exceed $20,000, will be transferred from the Capital Facility Master Plan Account.
Benefits to the County from the assessment and ultimate license renewal should result in cost
savings or advanced services for many County facilities. Staff expects to recover these costs as
part of the renewal expenses and in lieu of doing individual needs assessment surveys.
BACKGROUND:
In March, 1999, the County and the Cities of Antioch, Clayton, Concord, Lafayette, Martinez,
Orinda, Pleasant Hill, Richmond, Walnut Creek , the Towns of Danville and Moraga (the
"Consortium") and Miller & Van Eaton, L.L.P signed the "Consulting Services Agreement"
(Attachment A) . The Consortium began the informal renewal process with the cable television
systems then controlled by AT&T Corp ("AT&T").
CONTINUED ON ATTACHMENT: k YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATORRECOMMENDATION OF BOARD COMMITTEE
PROVE OTHER
SIGNATURE(S): Z
ACTION OF BOA56 O APPROVED AS RECOMMENDED R
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
UNANIMOUS(ABSENT ,' ) TRUE AND CORRECT COPY OF AN
AYES: NOES: ACTION TAKEN AND ENTERED
ABSENT: ABSTAIN: ON MINUTES OF THE BOARD OF
SUPERVtSON THE DATE SHOWN.
ATTESTED
JOHN SWEETEN,CLERK OF
THE BOARD OF SUPERVISORS
AND COUNTY ADMINISTRATOR
cc:CAO
Cable TV Administrator r;
A
B Ie' >. ✓ iUTY
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To date, Miller& Van Eaton has completed a preliminary needs assessment which included a
telephone survey, focus groups and community input; a draft Cable Ordinance and Agreement; and
assisted in several negotiation sessions with AT&T. Staff was near reaching agreement with AT&T in
2001 when AT&T announced the merging of their cable systems with Comcast. (This merger
triggered a Transfer of Ownership which Comcast has not finalized with the County. Staff has been
negotiating a transfer agreement through a consultant who represents the County and the Cities of
Richmond and Berkeley. The agreement should be complete in 2004.)
As a result of the merger, several management changes occurred with the cable systems and
negotiations with the Consortium came to a stand stillfor several months. When negotiations
resumed with Comcast representatives and the Consortium's negotiating team (Bill Lindsay of
Orinda, Paul Valle-Riestra of Walnut Creek and Patricia Burke , the County's Cable TV Administrator)
a significantly altered agreement was placed on the table. The negotiating team continues to meet
with Comcast representatives to discuss terms of the agreement.
However, since the informal negotiations have gone on for over three years without agreement and
many of the Consortium franchises have expired or continue to be extended (the County recently
extended cable franchises to December 3, 2004), the Consortium is looking at moving to the formal
process.
The Formal Renewal Process
In 1984, the federal government passed a law that was intended to provide cable operators with a'fair
opportunity to obtain renewal. To that end, the 1984 federal law — the "Cable Act" — establishes''two
possible ways a community can respond to a request for a franchise renewal: informal renewal
negotiations and the statutory formal renewal process.
Under the informal process, Congress contemplated that a franchising authority and a cable operator
will meet informally and attempt to resolve franchise issues through negotiation. If the issues are
resolved a local agency can, after providing the public with an opportunity for comment, adopt a
renewal franchise. An informal proposal can be rejected at any time.
Alternatively, either the operator or the local agency can invoke the more formal renewal procedures
set out at 47 U.S.C. Section 546(a)-(g). These "formal" procedures give the operator the opportunity
for a fair hearing on its renewal proposal. At the same time, the procedures insure that an agency
can deny renewal' if an operator has performed poorly in the past, or is not qualified, or is not willing
make a reasonable proposal for meeting the community's needs and interests for the future. Under
the formal process, local governments are given broad authority to define what the needs and
interests of the community are. It is up to the operator to then submit a proposal that is reasonable to
meet the community's cable-related needs and interests, taking into account the costs of meeting
those needs and interests (the focus is the entire community, not just the individual subscribers
currently receiving service).
More specifically, the formal renewal process under the Cable Act is a four-stage process. In the first
stage, a local agency must conduct a proceeding to identify future, cable-related needs and interests
of the community,and to review the past performance of the cable operators serving the community.
In the second stage, once the initial proceeding is complete, the agency may issue a request for
renewal proposals ("RFRP"). Because each renewal proposal is evaluated i on its own merits, this
RFRP cannot simply be a competitive bidding document. The Cable Act specifically allows the City to
establish the following requirements in an RFRP:
(1) "that channel capacity be designated for public, educational or government use, and
channel capacity on institutional networks be designated for educational or governmental use, and
may require rules and procedures for the use of channel capacity designated.'..." 47 U.S.C. §531(b).
(2) "for facilities and equipment." The legislative history explains that this includes
requirements for institutional networks, studios, equipment for public, educational and government
use, two-way networks, and so on. 57 U.S.C. §544.
The Cable Act also states "A franchising authority may establish and enforce' customer service
requirements of the cable operator, and construction schedules and other construction-related
requirements, including construction-related performance requirements, of the cable operator." Staff
believes that this language permits each Agency to establish these requirements unilaterally in a
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franchise (or through a regulatory ordinance), along with various other requirements established
pursuant to each Agency's police and other powers.
In the third stage of the renewal process, the operators submits a renewal proposal in response to
the City's RFRP. "Any such proposal shall contain such material as the franchising authority may
require."' If an operator submits a timely and proper response, the franchising authority has four
months to evaluate the proposal, and decide whether to grant renewal based on the proposal, or to
preliminarily deny renewal. 47 U.S.C. Section 546(c).
Finally, if renewal is preliminarily denied, and an operator desires it, an agency must commence an
administrative proceeding. The four issues that are considered at that proceeding are whether:
(A) the cable operator has substantially complied with the material terms of the existing
franchise and with applicable law;
(B) the quality of the operator's service, including signal quality, response to consumer
complaints, and billing practices, but without regard to the mix or quality of cable
services or other services provided over the system, has been reasonable in light of
community needs;
(C) the operator has the financial, legal, and technical ability to provide the services,
facilities, and equipment as set forth in the operators proposal; and
(D) the operator's proposal is reasonable to meet the future cable-related community needs
and interests, taking into account the cost of meeting such needs and interests.
In Conclusion
To further prepare for the formal process, staff, in consultation with the County Counsel's Office,
recommends that the Board approve the "Amendment to Consultant Services Agreement," which
authorizes Miller& Van Eaton to perform additional services necessary for the formal process. Staff
will continue to negotiate in good faith with Comcast in an attempt to reach a renewal agreement.
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Attachment A '
CONSULTANT SERVICES AGREEMENT
This Agreement is entered into by and between the COUNTY OF CONTRA
COSTA, the CITIES OF ANTIOCH, CLAYTON, CONCORD, DANVILLE,
LAFAYETTE, MARTINEZ, MORAGA, ORINDA, PLEASANT HILL,
RICHMOND, and WALNUT CREEK (all of which shall be referred to collectively
as the "Agencies") and MILLER&VAN EATON, L.L.P., ("Consultant"),',effective April
19, 1999.
RECITALS
A. The Agencies desire to contract for professional services for the TCI Cable
Franchise Renewal process which includes the following components:
Community Needs Assessment, Evaluation of a Draft Telecommunications
Ordinance,Development of a Negotiating Strategy, and (Optional)'
Implementation of the Negotiation Strategy.
B. Consultant desires to perform such professional services under agreement with the
Agencies.
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, the Agencies and Consultant agree as follows:
AGREEMENTS
1. Services. Subject to the terms and conditions set forth in this Agreement,
Consultant shall provide the professional services specified in the attached
project workplan dated February 12, 1999, and completed according to the
attached project timetable.
2. Payment.
(a) Consultant's fees for Professional Services shall be based on the time
spent to provide the services. In addition to paying Consultant's fees,
the Agencies shall reimburse Consultant for travel costs and other
expenses incurred in connection with providing the Professional
Services. The Consultant shall bill the Agencies monthly for
Professional Services at its regular hourly rates for municipal and non-
profit clients. Travel costs and other expenses shall be separately
itemized on each monthly invoice. Consultant's invoices shall be paid
by the Agencies within 30 days of receipt, except that Agencies shall
retain 10%of the payment due for Professional Services each month
("Retention"). Each invoice shall identify the amount of the invoice
that is attributable to each Task of the workplan, and the Retention for
each invoice shall be allocated accordingly. The Retention attributable
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to each Task shall be due and payable in full to Consultant within 30
days of notification by Consultant and acceptance by the Agencies of
completion of each of the following specific milestones:
• conduct the Community bleeds Assessment described in Tasks I,
II, and III in the workplan, and present and deliver final report on
this part of the project;
• evaluate the draft Telecommunications Ordinance as described in
Task IV in the workplan and provide written revisions;
• develop a strategy for entering negotiations with TCI and other
cable providers as described in Task V of the workplan and
provide a written franchise agreement that will serve as the basis
for negotiations
• at the group's request and direction, assist with the franchise
renewal negotiation process as described in Task VI',in a form to be
determined.
The payment schedule above reflects estimated project costs ranging
between $130,200 and $155,000 plus reimbursement of travel and
administration expenses estimated not to exceed 15%--total not-to-
exceed $178,250. Travel and administration expenses billed by
Consultant for reimbursement shall not be subject to Retention.
(b) Additional Services. Any additional services required beyond those
set forth in this Agreement shall be performed only if mutually agreed
to in writing by the Agencies and Consultant.
(c) Payment shall be processed by the Agencies as described in the
attached, "Agreement for Centralized Payment of Cable Consultants".
3. Responsible Personnel. In performing the services under this Agreement,
Consultant shall use the personnel listed in Exhibit A attached hereto and
made a part hereof by this reference. Changes in project personnel may
only be made with Agencies' written consent,and Consultant shall notify
Agencies in writing at least fifteen(15) days in advance of any proposed
change. Any person proposed as a replacement shall possess training,
experience and credentials comparable to those of the person being
replaced. In the event that the Agencies, in their sole discretion, at any
time during the term of this Agreement, desire the removal of any person
or persons assigned by Consultant to perform services pursuant to this
Agreement, Consultant shall remove any such person immediately upon
receiving notice thereof from the Agencies.
4. Facilities and Equipment. Consultant shall, at its sole cost and expense,
furnish all facilities and equipment which may be required for furnishing
services pursuant to this Agreement.
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5. Independent Contractor. Both parties understand that Consultant, its
agents, employees and independent contractors are and shall at all times
remain as to the Agencies wholly independent contractors. Neither the
Agencies nor any of their officers or employees shall have any control
over the manner by which the Consultant performs this Agreement and
shall only dictate the results of the performance. Consultant shall not
represent that Consultant or its agents,employees or independent
contractors are agents or employees of the Agencies. Except as the
Agencies may specify in writing, Consultant shall have no authority,
express or implied, to act on behalf of the Agencies in any way whatsoever
as an agent. Consultant shall have no authority, express or implied,
pursuant to this Agreement,to bind the Agencies to any obligation
whatsoever.
6. Termination. The Agencies may terminate this Agreement at any time
without cause immediately upon giving Consultant written notice of such
termination. Upon receipt of such notice and if requested to do so by the
Agencies, Consultant shall stop work at the stage directed by Agencies
and shall deliver all drawings, specifications and documentation developed
as of said stage. Consultant shall accept as full payment for services
rendered to the date of termination a pro rata share of the total contract
payment based on the portion of work actually performed.
7. Indemnification. Consultant shall indemnify, defend, and hold harmless
the Agencies and their officers, officials, agents, employees and volunteers
against any and all liability, claims, actions, causes of action or demands
whatsoever against any of them, including any injury to or death of any
person or damage to property or other liability of any nature, arising out of
or connected with the performance of this Agreement by Consultant or
Consultant's employees, officers, officials, agents or independent
contractors except where caused by the active negligence, sole negligence,
or willful misconduct of the Agencies.
8. Insurance. Consultant shall procure and maintain at its sole cost for the
duration of this agreement the following insurance:
a. Minimum Scope of Insurance.
Coverage shall be at least as broad as:
1. Insurance Services Office from number GL0002 (Ed. 1173)
covering Comprehensive General Liability and Insurance
Services Office form number GL 0404 covering Broad Form
Comprehensive General Liability; or Insurance Services Office
Commercial General Liability coverage ("occurrence" form CG
0001).
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2. Insurance Services Office form number CA 0001 (Ed.•1178)
covering Automobile Liability, code 1 "any auto" and
endorsement CA 0025.
3. Workers' Compensation insurance as required by the Labor
Code of the State of California and Employers Liability
insurance.
4. Errors and omissions liability insurance appropriate to
Consultant's profession.
b. Minimum Limits of Insurance.
Consultant shall maintain policy limits of no less than:
1. General Liability: $1,000,000 combined single limit per
occurrence for bodily injury,personal injury and property
damage. If Commercial General Liability Insurance or other
form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to this project/location or
the general aggregate limit shall be twice the required
occurrence limit.
2. Automobile Liability: $1,000,000 combined single limit per
accident for bodily injury and property damage.
3. Worker's Compensation and Employers Liability: Worker's
compensation limits as required by the Labor Code and
Employers Liability limits of$1,000,000 per accident.
4. Errors and Omissions Liability: $1,000,000 per occurrence.
C. Deductibles and Self-Insured Retentions.
Any deductibles or self-insured retentions must be declared to and
approved by the Agencies. At the option of the Agencies, either:
the insurer shall reduce or eliminate such deductibles or
self-insured retentions as respects the Agencies, its officers,
officials, employees and volunteers; or Consultant shall procure a
bond guaranteeing payment of losses and related investigations,
claim administration and defense expenses.
d. Other Insurance Provisions.
The policies shall contain, or be endorsed to contain,the following
provisions:
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1. General Liability and Automobile Liability Coverages:
(a) The Agencies, their officers, officials, employees, agents
and volunteers are to be covered as insured as respects:
liability arising out of activities performed by or on behalf
of Consultant; products and completed operations of
Consultant; premises owned, occupied or used by
Consultant; or automobiles owned, leased,hired or
borrowed by Consultant. The coverage shall contain no
special limitations on the scope of protection afforded to
the Agencies, their officers, officials, employees, agents or
volunteers.
(b) Consultant's insurance coverage shall be primary insurance
as respects the Agencies, their officers, officials, employees
and volunteers. Any insurance or self-insurance maintained
by the Agencies, their officers, officials, employees, agents
or volunteers shall be excess of Consultant's insurance and
shall not contribute with it.
(c) Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to the Agencies,
their officers, officials, employees,agents or volunteers.
(d) Consultant's insurance shall apply separately',to each
insured against whom claim is made or suit is brought,
except with respect to the limits of the insurer's liability.
2. Worker's Compensation and Employers Liability Coverage.
The insurer shall agree to waive all rights of subrogation
against the Agencies, their officers, officials, employees and
volunteers for losses arising from work performed by
Consultant for the Agencies.
3. All Coverages.
Each insurance policy required by this clause shall be endorsed
to state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits except after
thirty (30) days'prior written notice by certified mail, return
receipt requested, has been given to the Agencies.
e. Acceptability of Insurers
Insurance is to be placed with insurers with a Best's rating of no
less than ANII.
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f Verification of Coverage.
Consultant shall furnish the Agencies with certificates of insurance
and with original endorsements effecting coverage required by this
clause. The certificates and endorsements for each insurance
policy are to be signed by a person authorized by that insurer to
bind coverage on its behalf. All certificates and endorsements are
to be received and approved by the Agencies before work
commences. The Agencies reserves the right to require complete
certified copies of all required insurance policies, at any time.
9. Safety and Accidents. Consultant shall comply with all laws and
industrial safety standards. If a death, serious personal injury or
substantial property damage occurs in connection with the performance of
this Agreement, Consultant shall immediately notify the Agencies' .Risk
Manager by telephone.
10. Ownership of Documents. All documents developed or obtained by
Consultant in the performance of the Agreement shall be deemed to be the
property of the Agencies/County.
11. Notice. Any notice to be given under this Agreement shall be given by
enclosing the same in a sealed envelope, first-class postage prepaid and
depositing the same in the United States mail, addressed to the party at the
following address:
AGENCIES: CONSULTANT:
City Manager's Office Miller&Van Eaton, L.L.P.
Attn: Lorie Tinfow Attn: Mr'. Matt Ames
City of Walnut Creek 1155 Connecticut Ave., N.W.
P.O. Box 8039 ' Suite 1000
Walnut Creek, CA 94596 Washington, D.C. 20036
12. Assignment. This Agreement contemplates the personal services of
Consultant and its employees and it is understood by both parties that a
substantial inducement to Agencies for entering into this Agreement was,
and is,the professional reputation and competence of Consultant. Neither
Consultant nor Agencies shall assign or otherwise transfer this Agreement
or the rights or obligations hereunder.
13. Qualifications. Consultant represents that it and its employees are fully
qualified to perform the services under this Agreement. Consultant
represents and warrants to the Agencies that Consultant has, and at all
times during the performance of this Agreement shall maintain, all
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licenses, permits, qualifications and approvals of any nature which are
required for Consultant to practice Consultant's profession.
14. Time of the Essence. Time is of the essence in the performance of the
services under this Agreement. All time deadlines shall be strictly
construed unless all parties mutually agree to adjustments. '
15. Standard of Performance. Consultant shall perform all services required
pursuant to this Agreement in the manner and according to the standards
observed by a competent practitioner of the profession in which
Consultant is engaged in the geographical area in which Consultant
practices his profession. All products which Consultant delivers to
Agencies pursuant to this Agreement shall be prepared in a',substantial,
first-class, and workmanlike manner, and conform to the standards of
quality normally observed by a person practicing in Consultant's
profession. The Agencies shall be the sole judge as to whether the product
of the Consultant is satisfactory.
16. Prohibited Interests. No officer or employee of the Agencies shall have
any direct financial interest in this Agreement. This Agreement shall be
voidable at the option of the Agencies if this provision is violated.
17. Public Endorsements. Consultant shall not in its capacity as a consultant
with Agencies publicly endorse or oppose the use of any particular brand
name or commercial product without the prior approval of the Agencies'
governing boards. In its Agency consultant capacity, Consultant shall not
publicly attribute qualities or lack of qualities to a particular brand name
or commercial product in the absence of a well-established and
widely-accepted scientific basis for such claims or without the prior
approval of the Agencies' governing board. In its Agency consultant
capacity, Consultant shall not participate or appear in any
commercially-produced advertisements designed to promote a particular
brand name or commercial product, even if Consultant is not publicly
endorsing a product, as long as the Consultant's presence in the
advertisement can reasonably be interpreted as an endorsement of the
product by or on behalf of Agencies. Notwithstanding the foregoing,
Consultant may express its views on products to other consultants,the
Agencies' governing board,its officers, or others who may be authorized
by the Agencies'governing board or by law to receive such views.
18. Governing Law. This Agreement shall be governed by California law.
Any action to enforce or interpret this Agreement shall be brought in a
court of competent jurisdiction in Contra Costa County, California.
19. Counterparts. This agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which, taken together,
shall constitute one and the same agreement.
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20. Entire Agreement. This Agreement is the entire Agreement between the
parties and supersedes all prior negotiations, representations, or
agreements, whether written or oral. This Agreement may be amended
only by written agreement signed by both parties.
CONSULTANT:
COMPANY: ,
BY: MATTHEW C.AMES
TITLE: ATTORNEY
Subscribed and sworn to before me this 28th
,�y o �pr`�1999.
,_�
Notarized by. t
Willette A. Hill
Notary Public
Myt7� �0
Signed by Date
CITY OF WALNUT CREEK
CITY MANAGER
Signed by Date
CONTRA COSTA COUNTY
COUNTY ADMINISTRATOR.
Signed by Date
CITY OF ANTIOCH
CITY MANAGER
Signed by Date
CITY OF CLAYTON
CITY MANAGER
Signed by Date
CITY OF CONCORD
CITY MANAGER.
Signed by Date
CITY OF DANVILLE
CITY MANAGER
Signed by Date
CITY OF LAFAYETTE
CITY MANAGER
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TOTAL P.02 4
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