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HomeMy WebLinkAbout03/05/2013 05F Cable Communication System Franchise Renewal Consultant Services Agreement with Baller Herbst Law Group, PC w, hl d t � BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of: March 5, 2013 ITEM TITLE: Resolution authorizing an agreement with the Bailer Herbst Law Group, P.C. for cable communications system franchise renewal consultant services. SUBMITTED BY: Randy Beehler, Community Relations Manager CONTACT PERSON /TELEPHONE: SUMMARY EXPLANATION: In December 1993, the City of Yakima ( "City"') granted a non - exclusive cable communications system franchise (the "franchise ") to ICI Cablevision of Yakima, Inc. In 1998, the franchise was transferred to Falcon Holding Group, L.P. In 1999, the franchise was transferred to the current grantee, Charter Communications, Inc. ( "Charter "). The franchise will expire in January 2014. The City conducted a Request for Qualifications and Proposals ( "RFQP ") process and determined that the Bailer Herbst Law Group best matches the City's preferred approach regarding the undertaking of the cable communications system franchise renewal procedure. Under the proposed agreement, the Bailer Herbst Law Group would provide consultant services to the City including 1. Evaluating Charter's past performance, franchise compliance, and any franchise requirements that may be in default;, 2. Conducting a technical review to make sure that Charter's system will be comparable with current and future technological systems, service developments, and systems of cities of comparable size; 3. Reviewing and making recommendations about provisions that may need to be incorporated into a new franchise should Charter's system require upgrades; 4. Providing assistance with the franchise negotiations with Charter, as well as preparing subsequent ordinances, agreements, and other necessary documents, 5. Identifying current and future community needs, specifically by meeting the public participation requirements of the Federal Communications Act of 1934, as amended by the Cable Act of 1984, and; 6. Generally managing and guiding the franchise negotiation process by working together with City personnel to complete two separate phases of the renewal process and assuring that the City and its citizens receive the best possible services from Charter as a result of the process and a new franchise. Resolution X Ordinance Other (specify) Contract: X Mail to: Contract Term: Amount: $50,860 Expiration Date: Insurance Required? Yes Funding Cable Communications Fund Phone: Source: APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Adopt resolution BOARD/COMMISSION RECOMMENDATION: N/A ATTACHMENTS: Click to download Resolution Ballet Herbst Agreement Exhibit A - Scope of Work Exhibit B - Fee and Cost Schedule RESOLUTION NO. R -2013- A RESOLUTION making an award for Request for Qualifications and Proposals 11229 -QP and authorizing the City manager to execute an agreement between Bailer Herbst Law Group, P.C. and City of Yakima for cable communications system franchise renewal consultant services. WHEREAS, the City of Yakima (City) requires a contract for cable communications system franchise renewal consultant services and WHEREAS, the City of Yakima has allocated funding for cable communications system franchise renewal consultant services; and WHEREAS, a Request for Qualifications and Proposals was developed for the purpose of soliciting submittals from firms and individuals interested in providing such services to the City; and WHEREAS, the Purchasing Division, acting on behalf of the City Manager, advertised a Request for Qualifications and Proposals, which were due on January 24 2013; and WHEREAS, proposals were received from the following five (5) proposers: • Bailer Herbst Law Group, P.C. • The Buske Group • Best Best & Krieger, LLP • Kissinger & Fellman, P.C. • Moss & Barnett, P.A. WHEREAS, an Evaluation Process was completed and it is recommended by the Evaluation Committee and the City Manager that the City proceed with a contract award to the Bailer Herbst Law Group ; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized to execute an agreement with the Bailer Herbst Law Group for cable communications system franchise renewal consultant services, a copy of the Agreement with all relevant attachments is attached hereto and by reference made a part hereof, now, therefore, ADOPTED BY THE CITY COUNCIL this 5 day of March, 2013. ATTEST: Micah Cawley, Mayor City Clerk AGREEMENT BETWEEN CITY OF YAKIMA, WASHINGTON AND BALLER HERBST LAW GROUP, P.C. FOR PROFESSIONAL SERVICES THIS AGREEMENT, made and entered into on this day of , 2013, by and between the City of Yakima, Washington, a municipal corporation with its principal office at 129 North Second Street, Yakima, WA 98901, hereinafter referred to as "CITY ", and Bailer Herbst Law Group, P.C., a professional corporation with its principal office at 280N Grain Exchange Bldg, 301 Fourth Avenue South, Minneapolis, MN 55415, hereinafter referred to as "CONSULTANT'; said corporation is licensed and registered to do business in the State of Washington, and will provide professional cable communications franchise renewal consultant services under this Agreement for Charter Cable franchise renewal on behalf of the City of Yakima, herein referred to as the "PROJECT." WITNESSETH: RECITALS WHEREAS, CITY desires to retain the CONSULTANT to provide consulting services for the PROJECT, as described in this Agreement and subsequent Amendments thereto; and WHEREAS, CONSULTANT represents that it has available and offers to provide personnel with knowledge and experience necessary to satisfactorily accomplish the work within the required time and that it has no conflicts of interest prohibited by law from entering into this Agreement; NOW, THEREFORE, CITY and CONSULTANT agree as follows: SECTION 1 INCORPORATION OF RECITALS 1.1 The above recitals are incorporated into these operative provisions of the Agreement. SECTION 2 SCOPE OF SERVICES 2.0.1 CONSULTANT agrees to perform those services described below. Unless modified in writing by both parties, duties of CONSULTANT shall not be construed to exceed those services specifically set forth herein. 2.0.2 CONSULTANT shall use its best efforts to maintain continuity in personnel and shall assign, Adrian E. Herbst as Project Manager throughout the term of this Agreement unless other personnel are approved by the CITY. 2.1 Basic Services: CONSULTANT agrees to perform those tasks described in Exhibit A, entitled "WORK PLAN" (WORK) which is attached hereto and made a part of this Agreement as if fully set forth herein. 2.2 Additional Services: CITY and CONSULTANT agree that perhaps not all WORK to be performed by CONSULTANT can be identified in detail at the time this Agreement is executed, and that additional WORK related to the Project and not covered in Exhibit A may be needed during performance of this Agreement. CITY may, at any time, by written order, direct the CONSULTANT to revise portions of the PROJECT WORK previously completed in a satisfactory manner, delete portions of the PROJECT, or request that the CONSULTANT perform additional WORK beyond the scope of the specified PROJECT WORK. Such changes hereinafter shall be referred to as "Additional Services." Page 1 2.2.1 If such Additional Services cause an increase or decrease in the CONSULTANT'S cost of, or time required for, performance of any services under this Agreement, a contract price and /or completion time adjustment pursuant to this Agreement shall be made and this Agreement shall be modified in writing accordingly. 2.2.2 Compensation for each such request for Additional Services shall be negotiated by the CITY and the CONSULTANT according to the provisions set forth in the FEE AND COST SCHEDULE, Exhibit B, attached hereto and incorporated herein by this reference, and if so authorized, shall be considered part of the PROJECT WORK. The CONSULTANT shall not perform any Additional Services until so authorized by CITY and agreed to by the CONSULTANT in writing. 2.3 The CONSULTANT must assert any claim for adjustment in writing within thirty (30) days from the date of the CONSULTANT's receipt of the written notification of change. SECTION 3 CITY'S RESPONSIBILITIES 3.1 CITY - FURNISHED DATA: The CITY will provide to the CONSULTANT all technical data in the CITY'S possession relating to the CONSULTANT'S services on the PROJECT. 3.2 ACCESS TO FACILITIES AND PROPERTY: The CITY will make its facilities reasonably accessible to CONSULTANT as required for CONSULTANT'S performance of its services. 3.3 TIMELY REVIEW: The CITY will examine the CONSULTANT'S studies, reports, proposals, and other documents; obtain advice of an attorney, accountant, auditor and other consultants as CITY deems appropriate; and render in writing decisions required of CITY in a timely manner. Such examinations and decisions, however, shall not relieve the CONSULTANT of any contractual obligations nor of its duty to render professional services meeting the standards of care for its profession. 3.4 CITY shall appoint a CITY'S Representative with respect to WORK to be performed under this Agreement. CITY'S Representative shall have complete authority to transmit instructions and receive information. CONSULTANT shall be entitled to reasonably rely on such instructions made by the CITY'S Representative unless otherwise directed in writing by the CITY, but CONSULTANT shall be responsible for bringing to the attention of the CITY'S Representative any instructions which the CONSULTANT believes are inadequate, incomplete, or inaccurate based upon the CONSULTANT'S knowledge. 3.5 Any documents, services, and reports provided by the CITY to the CONSULTANT are available solely as additional information to the CONSULTANT and will not relieve the CONSULTANT of its duties and obligations under this Agreement or at law. The CONSULTANT shall be entitled to reasonably rely upon the accuracy and the completeness of such documents, services and reports, but shall be responsible for exercising customary professional care in using and reviewing such documents, services, and reports and drawing conclusions there from. SECTION 4 AUTHORIZATION, PROGRESS, AND COMPLETION 4.1 In signing this Agreement, CITY grants CONSULTANT specific authorization to proceed with WORK described in Exhibit A. The time for completion of all aspects of the WORK described in Exhibit A, including the submission of a completed Franchise Renewal Agreement, shall be on or December 15, 2013. SECTION 5 COMPENSATION 5.1 COMPENSATION ON A TIME SPENT BASIS AT SPECIFIC HOURLY RATES: For the services described in Exhibit A, compensation shall be according to Exhibit B — Fee and Cost Schedule, attached hereto and incorporated herein by this reference, on a time spent basis plus reimbursement for direct non - salary expenses. 5.1.1 DIRECT NON - SALARY EXPENSES: Direct Non - Salary Expenses are those costs incurred on or directly for the PROJECT including, but not limited to, necessary Page 2 transportation costs, including current rates for CONSULTANT'S vehicles; meals and lodging; and other similar costs. Reimbursement for Direct Non - Salary Expenses will be on the basis of actual charges and on the basis of current rates when furnished by CONSULTANT. 5.1.1.1 Travel costs, including transportation, lodging, subsistence, and incidental expenses incurred by CONSULTANT in connection with PROJECT WORK; provided, as follows: • That a maximum of U.S. INTERNAL REVENUE SERVICE allowed cents per mile will be paid for the operation, maintenance, and depreciation costs of company or individually owned vehicles for that portion of time they are used for PROJECT WORK. CONSULTANT, whenever possible, will use the least expensive form of ground transportation. • That reimbursement for meals inclusive of tips shall not exceed a maximum of forty dollars ($40) per day per person. • That accommodation shall be at a reasonably priced hotel /motel. • That air travel shall be by coach class, and shall be used only when absolutely necessary. 5.2 Unless specifically authorized in writing by the CITY, the total budgetary amount for this PROJECT shall not exceed Fifty Thousand Eight Hundred Sixty and no /100 Dollars ($50,860.00). The CONSULTANT will make reasonable efforts to complete the WORK within the budget and will keep CITY informed of progress toward that end so that the budget or WORK effort can be adjusted if found necessary. The CONSULTANT is not obligated to incur costs beyond the indicated budget, as may be adjusted, nor is the CITY obligated to pay the CONSULTANT beyond these limits. When any budget has been increased, the CONSULTANT'S excess costs expended prior to such increase will be allowable to the same extent as if such costs had been incurred after the approved increase, and provided that the City was informed in writing at the time such costs were incurred. 5.3 The CONSULTANT shall submit to the City's Representative an invoice each month for payment for PROJECT services completed through the accounting cut -off day of the previous month. Such invoices shall be for PROJECT services and WORK performed and costs incurred prior to the date of the invoice and not covered by previously submitted invoices. The CONSULTANT shall submit with each invoice a summary of time expended on the PROJECT for the current billing period and any other supporting materials determined by the City necessary to substantiate the costs incurred. CITY will use its best efforts to pay such invoices within thirty (30) days of receipt and upon approval of the WORK done and amount billed. CITY will notify the CONSULTANT promptly if any problems are noted with the invoice. CITY may question any item in an invoice, noting to CONSULTANT the questionable item(s) and withholding payment for such item(s). The CONSULTANT may resubmit such item(s) in a subsequent invoice together with additional supporting information required. 5.4 If payment is not made within sixty (60) days following receipt of approved invoices, interest on the unpaid balance shall accrue beginning with the sixty -first (61) day at the rate of 1.0% per month or the maximum interest rate permitted by law, whichever is less; provided, however, that no interest shall accrue when before the date of timely payment a notice of dispute is issued in good faith by the CITY to the CONSULTANT. 5.5 Final payment of any balance due the CONSULTANT for PROJECT services will be made within forty -five (45) days after satisfactory completion of the services required by this Agreement as evidenced by written acceptance by CITY and after such audit or verification as CITY may deem necessary and execution and delivery by the CONSULTANT of a release of all known payment claims against CITY arising under or by virtue of this Agreement. 5.6 Payment for any PROJECT services and WORK shall not constitute a waiver or release by CITY of any claims, right, or remedy it may have against the CONSULTANT under this Agreement or by law, nor shall such payment constitute a waiver, remission, or discharge by CITY of any failure Page 3 or fault of the CONSULTANT to satisfactorily perform the PROJECT WORK as required under this Agreement. SECTION 6 RESPONSIBILITY OF CONSULTANT 6.1 The CONSULTANT shall be responsible for the professional quality, technical adequacy and accuracy, timely completion, and the coordination of all reports, and other services furnished by the CONSULTANT under this Agreement. The CONSULTANT shall, without additional compensation, correct or review any errors, omissions, or other deficiencies in its reports, and other services. The CONSULTANT shall perform its WORK according to generally accepted standards of care and consistent with achieving the PROJECT WORK within budget, on time, and in compliance with applicable laws, and regulations. 6.2 CITY'S review or approval of, or payment for, any reports, and incidental WORK or services furnished hereunder shall not in any way relieve the CONSULTANT of responsibility for the technical adequacy, completeness, or accuracy of the PROJECT WORK. CITY'S review, approval, or payment for any of the services shall not be construed to operate as a waiver of any rights under this Agreement or at law or any cause of action arising out of the performance of this Agreement. 6.3 In performing WORK and services hereunder, the CONSULTANT and its subconsultants, employees, agents, and representatives shall be acting as independent contractors and shall not be deemed or construed to be employees or agents of CITY in any manner whatsoever. The CONSULTANT shall not hold itself out as, nor claim to be, an officer or employee of CITY by reason hereof and will not make any claim, demand, or application to or for any right or privilege applicable to an officer or employee of CITY. The CONSULTANT shall be solely responsible for any claims for wages or compensation by CONSULTANT employees, agents, and representatives, including subconsultants, and shall save and hold CITY harmless therefrom. 6.4 INDEMNIFICATION: (a) CONSULTANT agrees to defend, indemnify, and hold harmless the CITY, its elected officials, agents, officers, employees, agents and volunteers (hereinafter "parties protected ") from (1) claims, demands, liens, lawsuits, administrative and other proceedings,(including reasonable costs and attorneys fees) and (2) judgments, awards, losses, liabilities, damages, penalties, fines, costs and expenses of any kind claimed by third parties arising out of, or related to any death, injury, damage or destruction to any person or any property to the extent caused by any negligent act, action, default, error or omission or willful misconduct arising out of the CONSULTANT's performance under this Agreement. In the event that any lien is placed upon the City's property or any of the City's officers, employees or agents as a result of the negligence or willful misconduct of the CONSULTANT, the CONSULTANT shall at once cause the same to be dissolved and discharged by giving bond or otherwise. (b) Nothing contained in this Section or this Agreement shall be construed to create a liability or a right of indemnification in any third party. 6.5 In any and all claims by an employee of the CONSULTANT, any subconsultant, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the indemnification obligations under this Agreement shall not be limited in any way by any limitation on the amount or types of damages, compensation, or benefits payable by or for the CONSULTANT or a subcontractor under workers' or workmens' compensation acts, disability benefit acts, or other employee benefit acts. The CONSULTANT specifically and expressly waives its immunity under the Industrial Insurance Act, Title 51, RCW. Such waiver has been mutually negotiated by the CONSULTANT and the CITY. SECTION 7 PROJECT SCHEDULE AND BUDGET Page 4 7.1 The general PROJECT schedule and the budget for both the entire PROJECT and its component tasks shall be as set forth in this Agreement and attachments. The project schedule and performance dates for the individual tasks shall be mutually agreed to by the CITY and the CONSULTANT within fifteen (15) days after execution of this Agreement. The performance dates and budgets for tasks may be modified only upon written agreement of the parties hereto. The performance date for tasks and the completion date for the entire PROJECT shall not be extended, nor the budget increased because of any unwarranted delays attributable to the CONSULTANT, but may be extended or increased by the CITY in the event of a delay caused by special services requested by the CITY or because of unavoidable delay caused by any governmental action or other conditions beyond the control of the CONSULTANT which could not be reasonably anticipated. SECTION 8 REUSE OF DOCUMENTS 8.1 All internal WORK products of the CONSULTANT are instruments or service of this PROJECT. There shall be no reuse, change, or alteration by the CITY or others acting through or on behalf of the CITY without written permission of the CONSULTANT, which shall not be unreasonably withheld and will be at the CITY's sole risk. The CITY agrees to indemnify the CONSULTANT and its officers, employees, subcontractors, and affiliated corporations from all claims, damages, losses, and costs including, but not limited to, litigation expenses and attorney's fees arising out of or related to such unauthorized reuse, change, or alteration; provided, however, that the CONSULTANT will not be indemnified for such claims, damages, losses, and costs including, without limitation, litigation expenses and attorney fees were caused by the CONSULTANT's own negligent acts or omissions. 8.2 The CONSULTANT agrees that ownership of any reports, computer programs, technical reports, calculations, notes, and other WORK submitted or which are specified to be delivered under this Agreement or which are developed or produced and paid for under this Agreement, whether or not complete, shall be vested in the CITY. 8.3 All rights to patents, trademarks, copyrights, and trade secrets owned by CONSULTANT (hereinafter "Intellectual Property ") as well as any modifications, updates or enhancements to said Intellectual Property during the performance of the WORK remain the property of CONSULTANT, and CONSULTANT does not grant CITY any right or license to such Intellectual Property. SECTION 9 AUDIT AND ACCESS TO RECORDS 9.1 The CONSULTANT, including its subconsultants, shall maintain books, records, documents and other evidence directly pertinent to performance of the WORK under this Agreement in accordance with generally accepted accounting principles and practices consistently applied. The CITY, or the CITY'S duly authorized representative, shall have access to such books, records, documents, and other evidence for inspection, audit, and copying for a period of three years after completion of the PROJECT. The CITY shall also have access to such books, records, and documents during the performance of the PROJECT WORK, if deemed necessary by the CITY, to verify the CONSULTANT'S WORK and invoices. 9.2 Audits conducted pursuant to this section shall be in accordance with generally accepted auditing standards and established procedures and guidelines of the reviewing or auditing agency. 9.3 The CONSULTANT agrees to the disclosure of all information and reports resulting from access to records pursuant to this section provided that the CONSULTANT is afforded the opportunity for an audit exit conference and an opportunity to comment and submit any supporting documentation on the pertinent portions of the draft audit report and that the final audit report will include written comments, if any, of the CONSULTANT. 9.4 The CONSULTANT shall ensure that the foregoing paragraphs are included in each subcontract for WORK on the Project. 9.5 Any charges of the CONSULTANT paid by the CITY which are found by an audit to be inadequately substantiated shall be reimbursed to the CITY. Page 5 SECTION 10 INSURANCE 10.1 At all times during performance of the Services, CONSULTANT shall secure and maintain in effect insurance to protect the City and the CONSULTANT from and against all claims, damages, losses, and expenses arising out of or resulting from the performance of this Contract. CONSULTANT shall provide and maintain in force insurance in limits no less than that stated below, as applicable. The City reserves the rights to require higher limits should it deem it necessary in the best interest of the public. 10.1.1 Commercial General Liability Insurance. Before this Contract is fully executed by the parties, CONSULTANT shall provide the City with a certificate of insurance as proof of commercial liability insurance and commercial umbrella liability insurance with a total minimum liability limit of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage, and Two Million Dollars ($2,000,000.00) general aggregate. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Contract. The policy shall name the City, its elected officials, officers, agents, employees, and volunteers as additional insureds, and the insured shall not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. 10.1.2. Commercial Automobile Liability Insurance. a. If CONSULTANT owns any vehicles, before this Contract is fully executed by the parties, CONSULTANT shall provide the City with a certificate of insurance as proof of commercial automobile liability insurance and commercial umbrella liability insurance with a total minimum liability limit of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage. Automobile liability will apply to "Any Auto" and be shown on the certificate. b. If CONSULTANT does not own any vehicles, only "Non -owned and Hired Automobile Liability" will be required and may be added to the commercial liability coverage at the same limits as required in that section of this Contract, which is Section 10.1.1 entitled "Commercial General Liability Insurance ". c. Under either situation described above in Section 10.1.2.a and Section 10.1.2.b, the required certificate of insurance shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Contract. The policy shall name the City, its elected officials, officers, agents, employees, and volunteers as additional insureds, and the insured shall not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. 10.1.3. Statutory workers' compensation and employer's liability insurance as required by state law. 10.1.4. Professional Liability Coverage. Before this Contract is fully executed by the parties, CONSULTANT shall provide the City with a certificate of insurance as proof of professional liability coverage with a total minimum liability limit of Two Million Dollars ($2,000,000.00) per claim combined single limit bodily injury and property damage, and Two Million Dollars ($2,000,000.00) aggregate. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Contract. The insured will not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide. If the policy is Page 6 written on a claims made basis the coverage will continue in force for an additional two years after the completion of this contract. Failure of either or all of the additional insureds to report a claim under such insurance shall not prejudice the rights of the CITY, its officers, employees, agents, and representatives there under. The CITY and the CITY'S elected officials, officers, principals, employees, representatives, and agents shall have no obligation for payment of premiums because of being named as additional insureds under such insurance. None of the policies issued pursuant to the requirements contained herein shall be canceled, allowed to expire, or changed in any manner that affects the rights of the City until thirty (30) days after written notice to the CITY of such intended cancellation, expiration or change. SECTION 11 SUBCONTRACTS 11.1 CONSULTANT shall not be entitled to subcontract any portion of the WORK to be performed under this Agreement without the express written authorization of the CITY.. 11.2 Any subconsultants to the CONSULTANT utilized on this PROJECT, including any substitutions thereof, will be subject to prior written approval by CITY, which approval shall not be unreasonably withheld. Each subconsultant contract shall be subject to review by the CITY'S Representative, if requested, prior to the subconsultant proceeding with the WORK. Such review shall not constitute an approval as to the legal form or content of such subconsultant contract. The CONSULTANT shall be responsible for all persons and firms performing subconsultant WORK. 11.3 CITY does not anticipate CONSULTANT contracting with any additional persons or firms for the purpose of completing this Agreement. 11.4 The CONSULTANT shall submit, along with its monthly invoices, a description of all WORK completed by subconsultants during the preceding month and copies of all invoices thereto. SECTION 12 ASSIGNMENT 12.1 This Agreement is binding on the heirs, successors and assigns of the parties hereto. This Agreement may not be assigned by CITY or CONSULTANT without prior written consent of the other, which consent will not be unreasonably withheld. It is expressly intended and agreed that no third party beneficiaries are created by this Agreement, and that the rights and remedies provided herein shall inure only to the benefit of the parties to this Agreement. SECTION 13 INTEGRATION 13.1 This Agreement represents the entire understanding of CITY and CONSULTANT as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered herein. This Agreement may not be modified or altered except in writing signed by both parties. SECTION 14 JURISDICTION AND VENUE 14.1 This Agreement shall be administered and interpreted under the laws of the State of Washington. Jurisdiction of litigation arising from this Agreement shall be in Washington State. If any part of this Agreement is found to conflict with applicable laws, such part shall be inoperative, null, and void insofar as it conflicts with said laws, but the remainder of this Agreement shall be in full force and effect. Venue of all disputes arising under this Agreement shall be Yakima County, State of Washington. SECTION 15 EQUAL EMPLOYMENT and NONDISCRIMINATION 15.1 During the performance of this Agreement, CONSULTANT and CONSULTANT'S subconsultants shall not discriminate in violation of any applicable federal, state and /or local law or regulation on the basis of age, sex, race, creed, religion, color, national origin, marital status, disability, Page 7 honorably discharged veteran or military status, pregnancy, sexual orientation, and any other classification protected under federal, state, or local law. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement. CONSULTANT agrees to comply with the applicable provisions of State and Federal Equal Employment Opportunity and Nondiscrimination statutes and regulations. SECTION 16 SUSPENSION OF WORK 16.1 CITY may suspend, in writing by certified mail, all or a portion of the WORK under this Agreement if unforeseen circumstances beyond CITY'S control are interfering with normal progress of the WORK. CONSULTANT may suspend, in writing by certified mail, all or a portion of the WORK under this Agreement if unforeseen circumstances beyond CONSULTANT'S control are interfering with normal progress of the WORK. CONSULTANT may suspend WORK on PROJECT in the event CITY does not pay invoices when due, except where otherwise provided by this Agreement. The time for completion of the WORK shall be extended by the number of days WORK is suspended. If the period of suspension exceeds ninety (90) days, the terms of this Agreement are subject to renegotiation, and both parties are granted the option to terminate WORK on the suspended portion of Project in accordance with SECTION 17. SECTION 17 TERMINATION OF WORK 17.1 Either party may terminate this Agreement, in whole or in part, if the other party materially breaches its obligations under this Agreement and is in default through no fault of the terminating party. However, no such termination may be effected unless the other party is given: (1) not less than fifteen (15) calendar days written notice delivered by certified mail, return receipt requested, of intent to terminate; and (2) an opportunity for consultation and for cure with the terminating party before termination. Notice shall be considered issued within seventy -two (72) hours of mailing by certified mail to the place of business of either party as set forth in this Agreement. 17.2 In addition to termination under subsection 17.1 of this Section, CITY may terminate this Agreement for its convenience, in whole or in part, provided the CONSULTANT is given: (1) not less than fifteen (15) calendar days written notice delivered by certified mail, return receipt requested, of intent to terminate; and (2) an opportunity for consultation with CITY before termination. 17.3 If CITY terminates for default on the part of the CONSULTANT, an adjustment in the contract price pursuant to the Agreement shall be made, but (1) no amount shall be allowed for anticipated profit on unperformed services or other WORK, and (2) any payment due to the CONSULTANT at the time of termination may be adjusted to the extent of any additional costs or damages CITY has incurred, or is likely to incur, because of the CONSULTANT'S breach. In such event, CITY shall consider the amount of WORK originally required which was satisfactorily completed to date of termination, whether that WORK is in a form or of a type which is usable and suitable to CITY at the date of termination and the cost to CITY of completing the WORK itself or of employing another firm to complete it. Under no circumstances shall payments made under this provision exceed the contract price. In the event of default, the CONSULTANT agrees to pay CITY for any and all damages, costs, and expenses whether directly, indirectly, or consequentially caused by said default. This provision shall not preclude CITY from filing claims and /or commencing litigation to secure compensation for damages incurred beyond that covered by contract retainage or other withheld payments. 17.4 If the CONSULTANT terminates for default on the part of CITY or if CITY terminates for convenience, the adjustment pursuant to the Agreement shall include payment for services satisfactorily performed to the date of termination, in addition to termination settlement costs the CONSULTANT reasonably incurs relating to commitments which had become firm before the termination, unless CITY determines to assume said commitments. 17.5 Upon receipt of a termination notice under subsections 17.1 or 17.2 above, the CONSULTANT shall (1) promptly discontinue all services affected (unless the notice directs otherwise), and (2) deliver or otherwise make available to CITY all originals of data, reports, summaries, and such Page 8 other information, documents, and materials as the CONSULTANT or its subconsultants may have accumulated or prepared in performing this Agreement, whether completed or in progress, with the CONSULTANT retaining copies of the same. 17.6 Upon termination under any subparagraph above, CITY reserves the right to prosecute the WORK to completion utilizing other qualified firms or individuals; provided, the CONSULTANT shall have no responsibility to prosecute further WORK thereon. 17.7 If, after termination for failure of the CONSULTANT to fulfill contractual obligations, it is determined that the CONSULTANT has not so failed, the termination shall be deemed to have been effected for the convenience of CITY. In such event, the adjustment pursuant to the Agreement shall be determined as set forth in subparagraph 17.4 of this Section. 17.8 If, because of death, unavailability or any other occurrence, it becomes impossible for any key personnel employed by the CONSULTANT in PROJECT WORK or for any corporate officer of the CONSULTANT to render his services to the PROJECT, the CONSULTANT shall not be relieved of its obligations to complete performance under this Agreement without the concurrence and written approval of CITY. If CITY agrees to termination of this Agreement under this provision, payment shall be made as set forth in subparagraph 17.3 of this Section. SECTION 18 DISPUTE RESOLUTION 18.1 In the event that any dispute shall arise as to the interpretation of this agreement, or in the event of a notice of default as to whether such default does constitute a breach of the contract, and if the parties hereto cannot mutually settle such differences, then the parties shall first pursue mediation as a means to resolve the dispute. If the afore mentioned methods are either not successful then any dispute relating to this Agreement shall be decided in the courts of Yakima County, in accordance with the laws of Washington. If both parties consent in writing, other available means of dispute resolution may be implemented. SECTION 19 NOTICE 19.1 Any notice required to be given under the terms of this Agreement shall be directed to the party at the address set forth below. Notice shall be considered issued and effective upon receipt thereof by the addressee - party, or seventy -two (72) hours after mailing by certified mail to the place of business set forth below, whichever is earlier. CITY: City of Yakima Attn. Randy Beehler, Community Relations Manager 129 North Second Street Yakima, WA 98901 Attn: CONSULTANT: The Bailer Herbst Law Group, P.C. 280N Grain Exchange Building 301 Fourth Avenue South Minneapolis, MN 55415 Attn: Adrian Herbst IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their respective authorized officers or representatives as of the day and year first above written. CITY OF YAKIMA BALLER HERBST LAW GROUP, P.C. Page 9 Tony O'Rourke Signature Printed Name:. Printed Name: Title: City Manager Title: Date: Date: Attest City Clerk City Contract No. 2013 - Resolution No. R -2013- Page 10 STATE OF WASHINGTON ) ss. COUNTY OF YAKIMA I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument, and acknowledged it as the CITY MANAGER of the CITY OF YAKIMA, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Seal or Stamp (Signature) Title Printed Name My commission expires: Page 11 STATE OF ) ss. COUNTY OF I certify that I know or have satisfactory evidence that Adrian Herbst is the person who appeared before me, and said person acknowledged that he /she signed this instrument, on oath stated that he /she was authorized to execute the instrument, and acknowledged it as the Vice President of The Bailer Herbst Law Group, P.C., to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Seal or Stamp (Signature) Title Printed Name My commission expires: Page 12 EXHIBIT A SCOPE OF WORK Page 13 EXHIBIT B Professional Fees Page 14 Page 15 Exhibit A Work Plan The Bailer Herbst Law Group, P.C. 4. SCOPE OF WORK I. Understanding of the City of Yakimals Requirements for Consulting and Legal Assistance Relating to the Franchise Renewal Requested by Charter We understand that the City of Yakima's cable franchise is due to expire in January 2014, As a result, the City is seeking experienced consulting assistance in the frarichiw renewal process. As requested by the CW, we will divide the process into two phases. As outlined by the City, Phase ',wolves providing the information to the City staff necessary to understand the franchise renewal procws, and Undertake a background analysis of the City's franchise needs and requirentents including recommendations about Charter's responsiveness to consumer related information and identification of current trends and technological changes to be considered in the renewal options, It also involves coIRMing irfforniation, completing a comprehensive analysis of as performance and franchise compliance, a legal review, a technical and operational review and a franchise fee payment compliance review, and identification of the City's current and future needs, Phase would conclude with the development of a Franchise Renewal Report including a draft Franchise R'' awe Ordinance and preparation of guidelines for review of Charter s response to the CiR's Proposal. W understand Phase includes evaluation of Charteds response to the City's draft Franchise Renewal Ordinance, preparing recommendations for the ti in negotiations with Charter and assistirw or taking the lead negotiation of a new Franchise Renewal Ordinance for consideration and approval by the City and, if needed, revisions to current cable services regulatory ordinancejst Phase I also includes coordination and participation in the public, hearirig and finalization of a renewed franchise. We believe our Proposal will provide the CW with the professional services it needs in order to successfully accomplish its relleWal. Our experience and qualifications of working with cities throughout the United States on similar processes will ensure that we can provide knowledgeable, experienced, and cost effective service, We will begin our services promptly for the City after approval of our Proposal by the City. VVe will complete all necessary tasks in a timely manner working together and coordirtating with CW representatives throughout the entire process Our work plan reflects that MI phases of the project can be completed on a timely basis, We believe, based on experience that the project completion will be well within the time provided or by the CabR AM and dates as agreed to with the City A final tai ad timeline will be prepared after the Orientation meeting with the City, We have described below our appocach and methodology We anticipaR that with the aid of the City staff the project tasks will be defined to identify clearly all of our services and the requirements for City participation, U Approach We recrimmend the City consider four objectives for franchise renewal,. 6 Exhibit A Work Plan The Batter Herbst Law Group, R.C,i 1, Develop a Franchise Renewal Report with findings and recommendations for franchise requirements that are consistent with the City's needs and interests and reflect the status of Charter's current franchise performance, including services to the City and its constituents, and legal, technMal arid financial performance. Create a reefed tfiat will support the City's process, requests and decisions and requirements Mr negotiation, It is our intent to approach this franchise renewal as an informal process, but in the event that it becomes necessary to invoke the formal process, we will create a record that will support the City in a Nadal proceeding, 3. Put the City in a position to effectively negotiate, with our assistanoe, a renewed Franchise Ordinance that includes requirements determined by the City and complies with the federal Cable Ad fenewal requirements and any state or local legal requirements that may apply, 4, Assist the City with the approval process and public proceedings and information gathering, M. Work Plan PHASE I — CURRENT ASSESSMENT AND FINANCIAL AND TECHNICAL REVIEW The timeline wilt be developed based on the assistance of the City staff to accommodate the City's needs. These tasks am possible only with a timely response of information from both Charter and the City as we as from any respondents to surveys, etc., undertaken by the City We will make every effort possibM to deliver the preliminary and final Franchise Renewal Report and Franchise Renewal Ordinance en the dates and within the timeframe desired by the City. TASK ORGANIZATIONAL PHASE To start the process after authorization from the City our Fi fi including Adrian Herbst, Sean Stok n. and Carol Ogden, will combine together to organize the process and develop an agenda for orneite meetings in Yakima. The Organizational Phase of the ren al process is comprised of the following, three days onwite: Prepare any necemary notices to Charter regarding renewal procem. Request initial information arid documents fro the City, Conduct Comprehensive Information Review. Initial meeting with Yakima CID Attorneys Office, the City Council Staff and of City representatives. 7 Exhibit A Work Plan The Bailer Herbst Law Group, P.C. Provide education workshop of important considerations in franchise renewals and applicable federal cable law. We would like M arrange with the Charter representatives to provide at the Charter facilities, a tour and description of their operations, send - and plans. Detielop pro outline and time schedule. Select information gathering tools to be used during the process. Agree on the role of City representatives and staft and our Firm and other needed technical and financial consultants during the process TASK INFORMATION GATHERING The Viewing will be performed to gather information =teeming the past performance of the cable operators and the future neteds of the City. Prepare Request for Information for cornpletion by City Review current Franchise Agreement and Regulatory Ordinance for compliance, Revieyy reports, records and information concerning the cable system operations. Prepare Request for Information for corripletbn by Charter Prepare Information Questionnaires for completion by the City Staff. COnduet a legal review of federal, state and local applicable legal obligations, Conduct Community Needs Assessment, including designing a survey instrument(s) for the City M measure ouStoMer satisfaction and community needs, Analyze the City's tabulated results of the survey and prepare findings and recommendations. Analyze Charter's Response to the City's Request for Information Make additional Request for Information as necessary. identify and if recomniendations regarding Charters responsiveness M consumer related information, Create presenMtion materials regarding franchise renewal for the City to use in public workshops and other merinos, Discuss with City the completion of other information gathering needs identified during performance of these tasks. TASK TECHNICAL AND FINANCIAL REVIEWS Technical & Operations Review, Perform a Technical and Operational Review to determine weedier's. with the current franchee, 8 Exhibit A Work Plan The Bader Herbst Law Group, PC. applicable codes, and best practices, and to assess system repaw and capacity, Further, the technical review will evaluate and provide recommendations to upgrade the system, evaluate its customer service performance indicators and determine if Charter's system's capabilities rrieet the needs of the City into the future, The review will also determine if the Cites system is consistent and comparabet e cities of a Sereat sire if required, the retention of a technical expert will be discussed with the City. Emerging Technology Review. We will identify current and future technological systems and service developments including emerging technologies, and the potential future uses of a cable communications system, and provide assistance in the incorporation of such current and future technologies in the frnal franchise documents. Financial Review. Conduct a franchise fee payment compliance review by comparing the definition of "Gross Revenues" in the Franchise to the information provided by it regarding the revenues included and excluded in its computation of the franchise fee payments arid conducting a revix of revenue and other financial records of Charter to verK. the accuracy of franchise fee payments and prepare a Franchise Fee Payment Report.. If required, a financial expert will review the financial information provided by Charter and, if it is determined that an independent franchise Me payment audit is required, we are prepared to assist the City in the selection of a qualified franchise fee payment auditor to provide this as an additional service, TASK DEVELOPMENT OF REPORTS AND DRAFT FRANCHISE ORDINANCE At the completion of information gathering, a preliminary Franchise Renewal Report will be prepared in plain language explaining the information gathering pr* -se analyzing the data and presenting the findings and recommendations of the consultants relating to the cable franchise renewal process. We will provide summaries and reports of our findings from our COmphance review, including legal, technical, technology and financiai reeieWe These summaries and reports will be incorporated into the Franchise Renewal Report. We will work with the City to establish priorities and preHrences and requirements for the new franchise documents to - on the recomMendatiens of the FrariehHe Renewal Report and our analysis of Charters response to the City requests as completed in Phase I. 9 Exhibit A Work Plan The Ballet Herbst Law Group, P.C. We will develop a draft Franchise Renewal Ordinance to be included in the Franchise Renewal Report based on the findings and recommendations of the Franchise Renewal Report. After review by the City and its direction t US, a final Franchise Renewal Report including the draft Franchise Renewal Ordinance will be competed and presented to the City. TASK DEVELOPMENT OF GUIDELINES AND NEGOTIATION STRATEGY We Mil work with the City to develop guidelines for the review of Charter's response to the Franchise Renewal Report, including the draft Franchise Renewal Ordinance and develop a negotiation strategy based on our experience with Charter A decision will he made by the City with regard to needed modifications and changes to its cable services regulatory ordinance and Re negotiatiorts with Charter. TASK TRANSMITTAL OF REPORTS Working together with the City, we will create a transmittal to Charter of the information that has # sn gathered and the Franchise Renewal Report, including the draft Franchise Renewal Ordinance. This will serve as an invitation to Charter to regotiate with the City on the develop de of a rem ed Franchise Renewal Ordinance and, if needed, cable service regulatory ordinance amendrnents. ft is anticipated that a timeframe for Charter review and response to the City's Report will be identified during this phase. PHASE II — FRANCHISE NEGOTIATION, PUBLIC PROCEEDINGS AND APPROVAL TASK NEGOTIATION Conduct a thorough examination and analysis of Charter's response to the City's pr po -# Franchise Renewal Ordinance and, if needed, cable sewice regulatory ordinance changes, Work with the City to identify and determine the specific issues with Charter. Negotiation options and strategies will be developed for each issue with Charter. 10 Exhibit A Work Plan The Bader Herbst Law Group, PC, Arrange onwite or conference call negotiations as deemed necessary, ft is anticipated that - w coordinate with members of the City staff, the City Attorney, and others as may be designated by the City for participation in this process, We will lead or assist in negotiations as required. Subsequent to review by the City and our participation in explaining the recomrsended modifications and changes, Charter Mil be afforded opportunities to review the proposed Franchise Renewal Ordinance, advise the City of any required mixlifications or changes that need to be made, front their standpoint, and working together with the City, - will develop into a final draft the rtew Franchise Renewal Oidinance and any cable service regulatory ordinance amendmenM as may be required for consideration by the City's governing body. TASK PUBLIC PROCEEDINGS AND ACTION ON THE REQUEST FOR RENEWAL AND ADOPTION OF THE RENEWED F CHISE DOCUMENTS We will coordinate with the designated City personnel, the City Aftorney, and others as may be required to ensure that notices as may be required of the public proceedings or hearings are completed in a timely manner and a public hearing and approval prot -ss initiated. We will assist the City in the public omit- - sings and, ft requested by the City, be available ondite to outline the new Franchise Ren- ai Ordinance, the recommendations that have been developed through the entire renewal process that are incorporated into the new Franchise Renewal Ordinance and requirements of Um CW for approval and adoption. or adoption, we will provide the communication necessary to Charter for its approval and written a -ptance and all requiremerds essential for its acceptarme, including payment of fees, insurance, written acknowledgement of acceptance, and other matters that rimy be essential for finalization of its acceptance of the City's new Franchise Renewal Ordinance as acted by the City's governing body, The above is intended to provide. by task, our anticipated semices, steps for selection and identification of technical and financial assistance, as may be required, our participation and coordination with the CiW working together with us to compiete a franchise renewal in a timely n-manner and within the time outlined for approval and completion.. We fuliy expect that upon the initial Undertaking tw our Firm to work together with the co, the tasks that have been outlined for both Phase and Phase II will be developed further and in a timeframe for completion of the tasks that are created by us with the Citys concurrence. 11 Exhibit A Work Plan The Bailer Herbst Law Group, P„C. It is difficult to describe all the resources that the City will be asked to provide in order to complete this protect Certainly, at a minimum, the CiW will provide adequate City Staff to work with our Firm on the variOUS tasks and the City will provide coo as of all information and documenW as required, The CW will need to designate a staff person to b the primaw contact with our Firm. With regard to such tasks as a Needs Assessment Survey, the City may wish to undertake the copying and mailing of all surveys andior the City may wish to do the receipt and tabulaton of all surveys. We have found that each CW is different in its participat on and resources devoted to the franchise renewal process. It is our expectation that we would discuss each task and decide with the City staff, the most cost effective manner to compleW the task. We fully believe that a franchise renewal process is a coordinated effort between our Firm and representatives from the CW and other technical or fir consultants a may be identified. It is essential that we have a Mil appreciation of all of the City's needs and interests. We want the CW M know thM we am open and flexible t changes a the prcwess, the requirements Mr the process, and the manner of undertaking all the tasks necessary for completing both Phase I and Phase 1$ that will result in t best possibW new franchise arrangement for the City and for the benefit of all the City's C0115tituencies. 12 Exhibit B Fee and Cost Schedule The Beller Herbst Law Group. P.C. 5. FEES AND COST PROPOSAL Phase 1 Prelim Mary Information Review (Notice Requirements Current Franchise), Preparation (sf Agenda and Materials for the Orientation Meeting Adrian Herbst 6 $28D/hr, 61,680 Carol Ogden 12 $ 80/hr. $ 960 Total Fees $2,640 On-Site Meetings Adrian Herbst 1 day (daily rate $2,240) $2,240 Adrian Herbst Travel time* One daily rate $1,120 Total Fees $3,360 *Travel expenses will be itemized and invoiced in addition to the costs above Option: Conference Call Adrian Herbst 1 day (daily rate $2,240) $2,240 13 Exhibit B Fee and Cost Schedule The Bailer Herbst Law Group, P.C. Information Gathering, Prepare and Analyze Requests for Information, ,Prebare ard Aimlyze Information Questirmithires Adrian Herbst 5 CO $280/hr„ $1,400 Carol Ogden 15 8$ 80/hr, $1,200 Total Fees $2,600 Irdommtion Gathering, Review current Franchise and Regulatory Ordinance for Comsliance Adrian Herb 8 $280/hr, $ 840 Carol Ogden 12 $ 80 /hr, $ 960 Total Fees $1,800 Community and PEG Needs Assessment (Draft Sunreys, Tabulations, and Analysis) Adrian Herbst 10 8 280/hr. $2,800 Carol Ogden 60 d$8 $4,800 Total Fees $7,600 Conduct Technical and Operational Review Adrian Herbst 10 ci $280/hr, $2,800 Carol Ogden 5 ru $ 80 /hr. $ 400 Total Fees 83,200 Conduct Emerge Technical Review Adrian Herbst 5 $280the $1,400 Carol Ogden 5 $ 80/hr. $ 400 Total Fees 31,800 Development of Franchise Renewal Reboil and Renewai Franchise, Needed Technical Consultant and Financial Consultant Service Estimation Adrian Herbst 20 @ $280 Mr. $5,600 Carol Ogden 30 $ 8Oh n $2,400 Total F $8,000 14 Exhibit B Fee and Cost Schedule The Bailer Herbst Law Group, P.C. Conference Call Preparation, Presentation of Franchise Renewal Report and Draft Renewal Franchise Adrian Herbst 4 c8 $280/hr, $1,120 Carol Ogden 4c$ 50/hr. $ 320 Total Fees $1,440 Miscellaneous, Conference Call Meetirids, etc, Throughout Phase I Adrian Herbst 8 $2801hr. $2,240 Carol Ogden 6 @ $ 8 $ 480 Total Fees $2,720 Document Preparation arid Transmittal to Charter Adrian Herbst 4 @ $280/hr. $1,120 Carol Ogden 4 @ $ 80Ihr. $ 320 Total Fees $1,440 TOTAL FOR PHASE I: $3880000 Phase II Analysis of Charter Response and Preseritation of Phase II Negotiation Recommendations Adrian Herbst 10 $280/hr. $2,800 Carol Ogden 2 $ 80/hr. $1,600 Total Fees $4,400 Negotiation: Includes Preparation Assistance This is difficult to estimate without knowledge of City and Charter issues. We are assuming that the negotiatioris can all be corktucted via conference calls. Adrian Herbst 20 @ $280/hr. $5,600 Sean Stokes 5 @ $250/hr. $1,250 Carol Ogden* 12 @ $ IF $ 960 *Preparation and assistance Total Fees $7,810 15 Exhibit B Fee and Cost Schedule The Beller Herbst Law Group, Public Prodeedinds and Adoption of Franchise Renewal Ordinance Adrian Herbst. 4 d $280 thr, $1,120 Carol Ogden. 8 @ $ 60/1e. $ 640 Total Fees $1,760 To for Phase $13,970.00 Note: Cost era expenses, including travel, lodging, and federal express will be billed at our actual out-of-pocket cost. Cost estimate $5,300 Project Total: $50,860.00 Note: The protect total assumes an Informal' process. In the event the City determines to invoke a "formal" process, such a process will be determined by agreement with the City with cost modificat on required to complete the process based on the formal renewal requirements. Technical and Operational Review with Written Report of Recommendations Our technical and operational review may be sufficient, however if a Technical Consultant needs to be retained the costs for such work, if necessary, would be in the range of $12,000 to $16,000, Franchise F; it Financial Review Audit Amounts based on City requirements for number of years to be included in audit if and is required and as recommended by our Firm in consultation with City. Our review of requested financial data and franchise fee payment, verificabon may be sufficient and a specialized financial audit not required, if required, we estimate a fee from an experienced financial firm will be in the range of $8,500 to $10,000. 16