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HomeMy WebLinkAbout05053A - BUSKE GROUP PLAN FOR FRANCHISE RENEWAL AND STRATEGIES FOR IMPLEMENTATION DOCUMENT TRACKING Page: 1 Report: One Document Detail October 3, 2007 Condition: Document Numbera5053a, Document# Description Approval Date Expiration Date Closed Date A5053A Cable TV consulting services re: franchise renewal not to exceed... 03/16/2005 06/21/2005 Company Name: Buske Group Address: 3001 J Street, #201, Sacramento, CA 95816 Group: CITY MANAGER Service: In File xRef: CITY MANAGER Ins. Status: No Certificate on file. Document Tracking Items: Due Completed Trackina Amount Amount Code Item Description Date Date Date Added Paid MO 7649 not prov by dept 03/16/2005 to CM for Sig 06/20/2005 kdh note to Troy-- OK TO CLOSE? 10/03/2007 * * * END OF REPORT * * • " " • La7� Cl cn� r� — G ZU N :J DOCUMENT TRACKING Page: 1 Report: One Document Detail April 24, 2006 Condition'. Document NumherA5053A, Document# Description Avoroval Date Expiration Date Closed Date A5053A Cable TV consulting services re: franchise renewal not to exceed... 03/16/2005 06121/2005 Company Name: Buske Group Address: 3001 J Street, #201. Sacramento, CA 95816 Group: CITY MANAGER Service: In File • xRef: CITY MANAGER Ins. Status: No Certificate on file. Document Trackina items: Due Comoleted Trackina Amount Amount Code Item Description Date Date Date Added Paid MO 7649 not prov by dept 0311612005 to CM for sig 06120/2005 • * * ' * ' END OF REPORT IN Buske Group Franchise Renewal & Strategies AGREEMENT #5053A "I MO 7649, 3-16-05 CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT FOR THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this_-�--day of_ � 1/—i , 2005, by and between the CITY OF PALM SPRINGS, a municipal cqq� ration, (herein"City") and The Buske Group(herein "Contractor"). (The term Contra(toor includes professionals performing in a consulting capacity.) The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,the Contractor shall provide those services specified in the"Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the"services"or"work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase"highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's proposal or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest,which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder. ,ry0(Pm 31JAhq�L�aclj�t. L1v 11 1.5 Familiarity with Work. By executing this Contract, Contractor warrants that Contractor(a) has thoroughly investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, and (c)fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer. 1.6 Care of Work. The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i)the Contract Sum, and/or(ii)the time to perform this Agreement,which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of up to five percent (5%) of the Contract Sum or $25,000; whichever is less, or in the time to perform of up to one hundred eighty (180) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made apart hereof are set forth in the"Special Requirements" attached hereto as Exhibit"B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provisions of this Agreement, the provisions of Exhibit "B" shall govern. 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, the Contractor shall be compensated in accordance with the "Schedule of Compensation" attached hereto as Exhibit"C"and incorporated herein by this reference, but not exceeding the maximum contract amount of Forty Nine Thousand Four Hundred Ninety Dollars, ($49,490.00) (herein "Contract Sum"), except as provided in Section 1.8. The method of compensation may include: (i) a lump sum payment upon completion, (ii) payment in accordance with the percentage of completion of the services, (iii) payment for time and materials based upon the Contractor's rates as specified in the Schedule of Compensation, but not exceeding the Contract Sum or(iv) such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs,telephone expense,transportation expense approved by the Contract Officer in advance, and no other expenses and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City; Contractor shall not be entitled to any additional compensation for attending said meetings. 2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation, in any month in which Contractor wishes to receive payment, no later than the first (1 st) working day of such month, Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. Except as provided in Section 7.3, City shall pay Contractor for all expenses stated thereon which are approved by City pursuant to this Agreement no later than the last working day of the month. 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit"D", if any, and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer, but not exceeding one hundred eighty (180) days cumulatively. 3.3 Force Maieure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes,freight embargoes,wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused,Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one(1)year from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit "D"). 4.0 COORDINATION OF WORK 4.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Sue Buske Randy Van Dalsen Fred Christ It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement,the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Aqainst Subcontractinq or Assiqnment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent(25%)of the present ownership and/or control of Contractor,taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City. The City's policy is to encourage the awarding of subcontracts to persons or entities with offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are available,to persons or entities with offices located in the Coachella Valley("Local Subcontractors"). Contractor hereby agrees to use good faith efforts to award subcontracts to Local Subcontractors, if Local Subcontractors are qualified to perform the work required. In requesting for the City to consent to a subcontract with a person or entity that is not a Local Subcontractor, the Contractor shall submit evidence to the City that such good faith efforts have been made or that no Local Subcontractors are qualified to perform the work. Said good faith efforts may be evidenced by placing advertisements inviting proposals or by sending requests for proposals to selected Local Subcontractors. The City may consider Contractor's efforts in determining whether it will consent to a particular subcontractor. Contractor shall keep evidence of such good faith efforts and copies of all contracts and subcontracts hereunder for the period specified in Section 6.2. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein,except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of a least$1,000,000 bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. The Commercial General Liability Policy shall name the City of Palm Springs as an additional insured in accordance with standard ISO additional insured endorsement form CG2010(1185)or equivalent language. The Commercial General Liability Insurance shall name the City, its officers, employees and agents as additional insured. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in an amount which fully complies with the statutory requirements of the State of California and which includes $1,000,000 employer's liability. (c) Business Automobile Insurance. A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of$1,000,000 bodily injury and property damage, Said policy shall include coverage for owned, non-owned, leased and hired cars. (d) Additional Insurance. Additional limits and coverages, which may include professional liability insurance, will be specified in Exhibit B. All of the above policies of insurance shall be primary insurance. (Reference Section 5.4 regarding sufficiency.) The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents, and their respective insurers. In the event any of said policies of insurance are canceled, the Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Contractor has provided the City with Certificates of Insurance, endorsements or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance, endorsements, or binders are approved by the City. The contractor agrees that the provisions of this Section 5.1 shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages to any persons or property resulting from the Contractor's activities or the activities of any person or person for which the Contractor is otherwise responsible. In the event the Contractor subcontracts any portion of the work in compliance with Section 4.3 of this Agreement the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same polices of insurance that the Contractor is required to maintain pursuant to this Section. 5.2 Indemnification. Contractor agrees to indemnify the City, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities")that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part of the City, its officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Contractor will promptly pay anyjudgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. 5.3 Performance Bond. Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement, in the form provided by the City Clerk, which secures the faithful performance of this Agreement, unless such requirement is waived by the Contract Officer. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement. 5.4 SufficiencV of Insurer or Surety. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, unless such requirements are waived by the City Manager or designee of the City ("City Manager") due to unique circumstances. In the event the City Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the City Manager or designee; provided that the Contractor shall have the right to appeal a determination of increased coverage by the City Manager to the City Council of City within ten (10) days of receipt of notice from the City Manager. 6.0 REPORTS AND RECORDS 6.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance,technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed. 6.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings,specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement,the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform Contractor's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein. 7.4 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 Liquidated Damaqes. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City the sum of NONE (waived in Exhibit "B") ($___ _ ___)as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance (Exhibit"D"). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. 7.8 Termination Prior to Expiration Of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty(30) days'written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition,the Contractor reserves the right to terminate this Agreement at any time upon, with or without cause, upon sixty (60) days'written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section,the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2. 7.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated. 7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted,whether legal or equitable,shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action,taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Aqainst Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them,that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9.0 MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, document,consent,approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid,first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the case of the Contractor, to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. SIGNATURES ON NEXT PAGE IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. CITY OF PALM SPRINGS ATTEST: a municipal corporation By'---- -- - '- -- ----- By..;- -/ f erk ' City Manager APPROVED BY CITY COUNCIL �rac:a a l's'c'1 v,)•u@`t3°@ttN. V:' ivC '`«J APPROVEP A O FORM: �^ ' Agreement oR c�-/.nt�- S23,00C By'------ -- ---- - — Peilewed and approved by City Attorne rrokurement & Contracting D� lnaa ia95 `: Efate Di P.O. INUgra2aer c f CONTRACTOR: The Buske Group Check one:-_Individual 'e;partnership-_Corporation 3001 J Street, Suite 201 Sacramento, CA 95816 Corporations require two notarized signatures: One from each of the following: A. Chairman of Board, President,or Vice President:AND B.Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Fina er}. Bv' _- y `y Signature(notarized) Signature(notarized) c mil' /J Name _, }.�.3`h --- - Name: ------- - Title:--til a.'�'�p e-=�-�'�— -------- Title:---------------------- - �y ` ------------ Address. �T Address: State of�4�-!_f_m_'W1�n State of n County of$4corkRf_U_(ls�ss,o/+' county of_—--------flss On Wk�Zbatare me,Z�7i,Re W-Std�/A On before personals.., 22 appeared personally appeared _ _ _ _Sto m! ..... personally known personally known to me (or proved to me on the basis of to me(or provede on the basis of satisfactory evidence)to satisfactory evidence)to be the person(s)whose name(s)is/are be the person(s)whose name(s)is/are subscribed to the within subscribed to the within instrument and acknowledged to me instrument and acknowledged to me that he/she/they executed that he/she/they executed the same in his/her/their authorized the same in his/her/their authorized capacity(ies), and that by caparaty(ies), and that by his/her/their signatures) on the his/her/their signature(s)on the instrument the pemon(s),or the instrument the person(s),or the entity upon behalf of which the entity upon behalf of which the persons)acted,executed the person(s)acted,executed the instrument. instrument. WITNESS my hand and official seal. WITNESS my hand and official seal. Notary Signature:_ Notary Signature:________________----- Notary Seal: Notary Seal: ,,., S.E.GARCIA-SWAIN .•^";::..^''• COMM.#1454430 an Napry Publlc-Califofnia N 1 SACRAMENTO COUNTY My,Comfi.Exp.Dec 0,2007 C EXHIBIT 'A' SCOPE OF SERVICES A. Develop a Plan for Franchise Renewal and Strateqies for the Implementation of that Plan. Contractor will conduct a detailed review and evaluation of the existing franchise with Time Warner and other documents that affect franchise obligations or the franchising process. We will then work with the staff of the City to: 1. Devise reasonable and cost-effective renewal procedures consistent with federal, state and local law for an informal negotiation process. The Cable Act sets out formal franchise procedures which must be followed if activated by the local government or cable operator. Most local governments never undertake the formal renewal process. The cable operator and local government resolve renewal issues through informal negotiation. However, to protect its interests against challenges to the franchising process, the City cannot ignore the formal procedures. We therefore believe a reasonable franchise renewal procedure should provide adequate time for negotiation, and at the same time ensure that the City can comply with all requirements of the Cable Act before the franchise expires. This task can be accomplished by scheduling the initial public proceedings contemplated by the Cable Act over a period of several months, during which time the City can also complete a needs assessment and customer survey, examine other franchises from comparable areas, review customer service issues, develop negotiating positions, and meet and negotiate informally with Time Warner. If the City can reach agreement with Time Warner, the formal process can be terminated. If an accord regarding the terms of the renewal agreement cannot be reached, the City will be in a position to successfully conclude the initial public proceedings and move forward with the other steps of the Cable Act renewal procedures. 2. Work with the Staff and Attorney of the City (if needed) to identify requirements of state and local laws that also must be satisfied and any ordinance amendments required to enable the franchise renewal process to move forward smoothly. As the City moves forward in the franchise renewal process, Contractor will identify areas in the current governing documents that ought to be improved and advise how those areas can be enhanced, consistent with the Cable Act. Information gathered in the community needs assessment described in a later section of this proposal will play an important role in these recommendations. Contractor will review franchises from comparable areas and draw upon Contractor's extensive files of franchise documents in preparation for the drafting of various sections of any new franchise agreement for the City. B. Determine the Cable Companv's Level of Compliance with the Obliqations of the Existinq Franchise Aqreement and Applicable State and Federal Requlations. Contractor shall propose to assist the City by evaluating Time Warner's level of compliance with the City's current franchise agreement, and verifying that the company is operating in accordance with applicable state and federal laws. The following tasks will be conducted: 1. Review the Operator's Compliance with Existing Franchise Provisions. The City has an interest in reviewing the operator's past performance to assure that it and members of the public have received all benefits of the existing franchise agreement. The City is also entitled to deny renewal under formal Cable Act procedures if it determines that Time Warner has failed to comply substantially with a material term of the franchise, or if it determines that the cable company's performance has been unreasonable in light of community needs. Review may also result in immediate improvements in service in some areas. A review of the cable operator's past performance review would focus on a few areas that are of particular significance, including any technical requirements of the existing Franchise. The areas selected for review would be identified through preliminary discussions with the staff of the City, but based on our previous experience with other franchise renewals, Contractor believes that certain areas may warrant a detailed examination. If it is determined that Time Warner has failed to comply with any franchise provisions, Contractor will (1) identify the areas of noncompliance, (2) recommend procedures to be followed by the City to notify Time Warner of such areas of noncompliance, (3) suggest steps to be followed to give Time Warner an opportunity to cure the defect in its performance, and (4) recommend enforcement procedures to help ensure compliance in the future. 2. Review Customer Service Standards and Consumer Complaints. If desired by the City, Contractor shall review customer service standards, conduct a subscriber satisfaction survey, and review consumer complaints regarding the cable system to ascertain the level of customer satisfaction with Time Warner in the City. Contractor shall perform the following tasks: a. examine all available complaint files held by the City and,to the extent possible, from Time Warner. b. review any current customer service standards in effect and compare them to standards used in other communities. c. solicit and review information from Time Warner specific to standards, procedures for handling customer complaints and service, and "tracking" of customer complaints. d. prepare a questionnaire and conduct a customer satisfaction telephone survey to assess attitudes about current levels of service provided by Time Warner. The questionnaire would include questions to ascertain subscriber opinions about the quality of their cable reception, service calls, billing practices, telephone response, and the company's current programming package. Respondents would also be asked about their interest in PEG Access services and new technology-based services that could be delivered by cable. More details about this telephone survey are provided later in this proposal. These measures would give a broad and useful picture of consumer satisfaction, interest in other services, and possible problem areas that may require attention in the future. A franchising authority has the right to enforce customer service standards that are in its franchise. Many communities have successfully negotiated enforceable standards in concert with their cable companies, who have a strong economic interest in maintaining both a good image and responsible practice in the customer service area. Therefore, Contractor shall review comprehensive standards now being used by other communities in light of specific problems identified as an outcome of our research for the City. These standards would be modified as necessary to address unique local concerns, and the modified standards would provide the basis for negotiations with Time Warner. 3. Review Current PEG Access Channels, Equipment, Facilities and Services. Contractor shall conduct a review of the current Public, Education, and Government (PEG) Access resources and services in the City. Through this review process Contractor shall: a. Carefully examine the terms of any franchise obligations that relate to PEG Access and determine Time Warner's level of compliance with those provisions. b. Prepare and distribute a questionnaire to be completed by the staff of the PEG Access operation. The questionnaire would address such items as equipment inventory and condition, funding levels and sources, expenditures by category, original programming figures, and equipment usage. C. Conduct an on-site inspection of the PEG Access facilities. d. Interview staff persons responsible for the overall operation of the PEG Access channels and facilities to obtain their assessment of current performance and their recommendations to improve operations and services. e. Collect and analyze data from questionnaire responses and interviews. f. Prepare and submit a report that includes a section regarding our evaluation of area PEG Access facilities, equipment and operations. This information, in combination with the input received during the workshops described in the next section and information gathered during a public hearing, would be used to determine specific future needs in the PEG Access area. C. Conduct a Franchise Fee Payment Review. Contractor shall conduct a payment review of past franchise fees paid by the cable operator. This review is appropriate to assure that the franchising authority has collected the historical amounts due before a renewal is granted and to help clarify language for the new franchise agreement. The types of issues that typically arise in assuring that franchise fee payments are correct include the following: • Differences between cash receipts and accrual accounting, including bad debt accounting polices; • Procedures for allocating non-subscriber revenues to a particular franchising authority when the same operator serves multiple adjacent jurisdictions; • Inclusion or exclusion of certain revenue items (e.g., advertising, home shopping, leased access, late fees, and others); and • Treatment of the franchise fee itself as an element of gross revenues. Contractor shall assist the City in determining whether payments made for the past four years have been appropriate. In this effort, Contractor shall: • Review the franchise agreement and ordinance, particularly the sections related to payment of franchise fees; • Obtain and analyze any franchise fee payment reports, revenue reports, or financial statements submitted by Time Warner to the City and compare these to franchise fee payments received by the City from Time Warner; • Obtain other background information as may be available from the City, including rate cards, channel lineups, sample subscriber billings,subscriber statistics, and any prior franchise fee review reports that may have been prepared for the City; • Visit the location where the company's accounting and franchise fee calculations for the City are performed, meet with appropriate Time Warner representatives, and review appropriate documents to: 0 Clarify any issues arising from the review of filings submitted to the City; 0 Understand the subscriber billing and collection system; 0 Understand accounting and allocation procedures applied for non- subscriber revenues, if applicable; 0 Identify any revenue items that may have been excluded, deducted, or adjusted from the reported revenues; and 0 Compare the revenues reported to the City to those shown in Time Warner's monthly subscriber billing reports and general ledger for the cable system, for selected months during the period under review; • Prepare a summary report letter discussing any franchise fee issues or problems identified. Note that these review procedures assume Time Warner's underlying accounting systems and records are materially accurate. Since Time Warner's independent auditors examine those systems and record when the auditors certify Time Warner's overall financial statements, such an assumption is a reasonable and cost effective one. Since Time Warner's service area includes other nearby communities, a potential concern is the company's accuracy in associating subscribers with the correct franchise area. Contractor's experience has been that while there are often errors in this process, the errors usually go both ways(i.e., some subscribers identified as being in one area may actually reside in another area, and vice versa), and the net error amounts are usually relatively small. Contractor does not propose any testing of the franchise area coding accuracy in this review, since it is generally not cost effective for outside consultants to perform this task. However, the City may wish to have its staff perform a review of subscriber address records/area coding versus current maps of the City if it has reason to believe that subscriber location identification may be particularly prone to problems in the area. The results of the franchise fee review shall help the City identify discrepancies in past payments, if any, and plan adjustments in future franchise agreement language, if appropriate. In this task, Contractor's effort shall focus on assuring the City receives the full amount of franchise fee revenue to which it is entitled. It is Contractor's experience that reconciliation of payment discrepancies identified through these procedures often provides franchising authorities with additional fee revenues that may exceed the cost of performing the procedures. D. Conduct a Community Needs Assessment. Contractor, assisted by staff of the City, shall conduct a multi-faceted ascertainment of area residents, community organizations, institutions, and local businesses to identify their current levels of usage and their satisfaction with the services provided by the Time Warner cable system. Attitudes about possible future usage of a variety of new cable communication services shall also be explored. The proposed ascertainment of needs and interests shall use a variety of information-gathering techniques, discussed in detail below. Contractor has found through many years of experience that using multiple information-gathering techniques is the most effective way to assure that: (1) the needs assessment reflects input from a broad cross- section of the community; (2) a more in-depth level of research regarding needs and interests is conducted; and (3) the City obtain "informed" opinions. This is of particular importance when dealing with issues regarding new technologies. The information- gathering techniques utilized by Contractor shall include: • A statistically valid random telephone survey of cable television subscribers; • Six structured focus group workshops to be held in the City; • Collection and analysis of strategic and long range plans, technology plans, and communications plans that have been prepared by government agencies, educational institutions, and organizations that serve the City; • Special meetings and personal interviews; and • A public hearing to invite public comment on issues relevant to the needs assessment and on the past performance of the cable operator. Subject to the review and approval of the City, Contractor shall use the following methods to collect information from area organizations and residents: 1. Telephone Survey of Time Warner Cable Subscribers Group W Communications, Contractor's survey research partner, proposes to draw a statistically valid sample of 400 cable subscribers to participate in a telephone survey. After consulting with City representatives and other stakeholders, Contractor shall draft a questionnaire to be used by the survey team. After the questionnaire is reviewed, modified if necessary, and approved by the City, the survey activity would begin. The telephone survey respondents shall be asked to answer a series of questions about Time Warner's current programming, customer service practices and related matters. They shall also be asked for their opinions regarding existing PEG Access services and a number of future services that could be offered by the cable operator. The survey sample shall have a ±5% sampling error at a 95% level of confidence. This means that, in 95 out of 100 cases, the results of surveying the sample group would be within 5% of the result that would be obtained by surveying all households in the City that subscribe to the cable service. 2. Focus Group Workshops Contractor shall conduct a total of six (6) structured workshops for target audiences (e.g., government officials, educators, community organizations, business representatives, etc.)to be determined by the City. Participants in each set of workshops will be asked to answer questions designed to identify future cable-related needs and interests and any concerns regarding the cable operator's performance to date. Before the focus group sessions are held, the Contractor would meet with the staff of the City to discuss the community needs assessment activities and to enlist their support in publicizing and attending the focus group workshops and public hearings. The City would be relied upon to help ensure the success of the focus group workshops by adequately promoting them. The City's effort would include printing promotional flyers designed by the Contractor, mailing the flyers to potential attendees, and copying materials (provided by the Contractor) for distribution at each focus group session to the attendees. Each workshop shall begin with an explanation of the nature of modern cable service in critical areas (e.g., programming, customer service, system design and technology, PEG Access, and non-entertainment uses of the system, including video,voice and data services). In each workshop, industry developments most pertinent to the participants and the experiences of their peers throughout the United States will be emphasized. Current and developing federal regulatory policies shall be summarized as needed. Ample opportunity for questions and clarifications shall be provided. Following the educational segment of the workshop, a group brainstorming process will allow participants to clarify their thinking on what uses of cable service they would most like to see maintained, improved, or made possible, through the franchise renewal process. Each participant shall complete the workshop by filling out a questionnaire designed to identify the user needs that the City may seek to fulfill in the renewal process. Workshop participants shall also be asked to identify existing problems with the delivery of cable services. The workshop process shall help document the future cable communications services desired in the City, taking into account the experiences of comparable areas. These workshops will complement information gathered through the telephone survey. These structured workshops will help to assure that each participant's expression of needs, interests and concerns is well-informed. These workshops are also successful in developing significant involvement in the refranchising process by a wide variety of vitally interested groups. The method is efficient, because it shall I permit the City to obtain information relevant to a number of critical franchising tasks through a series of simple and inexpensive sessions. In short, the workshop method creates a sizable, informed, and involved constituency, often useful in subsequent negotiations and in the political process. 3. Collection and Analysis of Strategic and Long Range Plans Contractor shall request, collect and analyze various strategic and long range plans, technology plans, and communications plans that have been prepared by government agencies, educational institutions, business associations, and community groups that serve the City. This information is a valuable representation of community issues, needs, and interests. 4. Special Meetings and Personal Interviews In addition to the focus group workshops, it will be important to meet directly with appropriate government and educational officials and Public Access representatives, to assure that their well-informed input is included in the process. Contractor shall[conduct such meetings to augment the information gathered through the focus group sessions and questionnaire feedback, and to help ascertain priorities and interests in future uses of the cable system. 5. Written Reports The community needs assessment for the City shall conclude with the preparation and submission of written preliminary reports,which shall compile and analyze all of the input gathered from residents and organizations through the: (a) results of the telephone survey; (b)focus group brainstorming sessions and questionnaire responses; (c) strategic and long range plans; and (d) special meetings and personal interviews. Contractor shall issue a separate, detailed report on the results of the telephone survey. All information would be contained in a Needs Assessment Report. After the preliminary reports are reviewed by staff of the City and input is received from them, Contractor will prepare final versions of the reports. The reports can be presented as part of any renewal proceedings conducted by the City, consistent with federal law. E. Identify Franchise Renewal Goals, Develop Proposed Franchise Provisions and Draft a Model Ordinance and Franchise Aqreement Contractor shall work with the City to identify the specific elements that ought to be included in any future cable ordinance and franchise agreement, and assist in establishing the negotiating positions of the City. More specifically, Contractor shall: 1. Assist the City in Developing Proposed Franchise Provisions to be Sought through Negotiations. Based upon the results of the needs assessment process, Contractor shall prepare a document containing recommendations regarding the elements deemed suitable for inclusion in a new cable ordinance and franchise agreement. This document may include proposed positions regarding: • System upgrade, rebuild and extension • Construction and design • Technical standards • Programming • Management and staffing • Customer service and consumer protection standards • PEG Access support • Other services We will work closely with the designated legal staff of the City to translate these recommendations into cable franchise and ordinance language. Contractor shall develop the initial drafts of language for the ordinance and franchise renewal agreement and provide them to the designated legal staff of the Cityfor review. This approach has proven to be very cost efficient in that(1)it requires attorneys to spend less time on the project and (2) the City would benefit from access to Contractor's extensive file of ordinances and franchise agreements from other communities. 2. Develop Franchise Monitoring and Enforcement Procedures The City must develop ordinance provisions to enable them to monitor and enforce the general service requirements of its franchise agreement. These provisions may be subject to franchise negotiations, and thus would be developed before negotiations begin. Contractor has a great deal of experience in developing provisions and procedures for monitoring cable company compliance with franchise requirements. Contractor shall assist the City as required in recommending franchise and ordinance provisions. 3. Recommend Franchise Provisions which Ensure that the System will be Upgraded in the Future. Since cable franchises are typically renewed for a long period of time -- sometimes 10-15 years--community needs and available technology are certain to change during the term of the renewal franchise. A review period to revisit the adequacy of system technology and performance standards at least every five years is appropriate, and will likely be offered as a part of the substance of a proposed franchise ordinance provision. If, as is likely, an upgrade or rebuild is required, more frequent review periods will be integrated with upgrade or rebuild schedules to provide effective checkpoints for progress and completion. Contractor shall develop appropriate re-openers in preparation for any franchise negotiations. 4. Prepare Drafts of a Model Ordinance and Franchise Agreement Based upon the input gathered and analysis undertaken, the Contractor shall draft a model cable ordinance and franchise renewal agreement for the City. These documents will fully comply with the current federal guidelines, while striving to ensure that the City receives the improvements to the current cable system and other community benefits that it is entitled to obtain. Examples of the innovative cable ordinances and franchise agreements that Contractor has helped to negotiate on behalf of other California communities will be shared with appropriate City representatives. EXHIBIT 'B' SPECIAL REQUIREMENTS Section 4.1 Representative of Contractor — It is also understood that the experience, knowledge, capability and reputation of the following principals of the Contractor's approved subcontractors were a substantial inducement for the City to enter into this Agreement: Spiegel & McDiarmid, Washington, DC - James Horwood (legal advice) Public Knowledge, Inc. —Jay Smith (financial analysis) Group W Communications —Tom Wilson (survey research) Rika Welsh - focus group assistance Therefore, the foregoing Subcontractor principals shall be responsible during the term of this Agreement for directing all activities of Subcontractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Subcontractor without the express written approval of City. Section 4.3 Prohibition Against Subcontracting and Assignment: The City hereby approves the use of the following Subcontractors: Spiegel & McDiarmid, Washington, DC-James Horwood (legal advice) Public Knowledge, Inc. —Jay Smith (financial analysis) Group W Communications—Tom Wilson (survey research) Rika Welsh - focus group assistance Section 5.3 Performance Bond—The requirement of Section 5.3 for a Performance Bond is hereby waived. Section 7.7 Liquidated Damages—The requirement of Section 7.3 for Liquidated Damages is hereby waived. EXHIBIT 'C' SCHEDULE OF COMPENSATION The maximum amount of the City's obligation for the scope of services of this agreement is $49,490. Estimated compensation for the individual tasks identified in Exhibit"A"Scope of Services is indicated below. Payments to Contractor shall be made no more frequently than monthly. Each request for payment shall contain Contractor's statement of the work or tasks completed or portion performed with supporting documentation. The determination of payment due shall be made based on the reasonable judgment of the Contract Officer. PROJECT BUDGET Prof. Task Consultant(l) Hours Fees Costs Total A. Develop Plan for Franchise Buske 24 $3,000 $600(2) $3,600 Renewal and Strategies to Christ 15 $1,350 $100(3) $1,450 Implement Plan $5,050 B. Determine Time Warner's Level of Compliance 1. Review Compliance with Christ 30 $2,700 $600(2) $3,300 Franchise Provisions 2. Review Customer Service Christ 5 $450 $100(2) 550 Standards, Complaints 3. Review Current PEG VanDalsen 8 $720 $300(2) 1,020 Access Resources $4,870 C. Conduct a Franchise Smith 50 $8,250 $600(2) $8,850 Fee Payment Review D. Conduct a Community Needs Assessment 1. Telephone Survey Group W 400 telephone interviews $9,200 VanDalsen 8 $720 720 2. Focus Group Workshops Welsh 25 $2,250 $750(2) 3,000 Buske 24 $3,000 $1,000(2) 4,000 Clerical 15 $450 450 3. Analyze Plans VanDalsen 8 $720 720 4. Meetings/Interviews Welsh 8 $720 $150(2) 870 5. Written Reports Data Input 25 $750 750 VanDalsen 40 $3,600 3,600 $23,310 E. Identify Franchise Renewal Buske 40 $5,000 $600t2i $5,600 Goals,Develop Proposed Christ 19 $1,710 $100/31 $1,810 Franchise Provisions, Draft $7,410 a Model Ordinance and Franchise Agreement TOTAL PROJECT BUDGET $49,490 FOOTNOTES TO PROJECT BUDGET: 1. Fees are estimated on an hourly basis: Buske @$125/hour;Christ @$90/hour;VanDalsen @ $90/hour; Smith @ $165/hour; Columbia @ $115/hour; Welsh @ $90/hour; Norwood @ $300/hour; Data Input @$30/hour. 2. Includes travel, lodging, meals, clerical, long distance phone charges, copying, postage&delivery. 3. Clerical, long distance phone charges, copying, postage&delivery. RESPONSIBLE Apr- Jul- Jan- TASK DESCRIPTION PERSONS Jun Dec Jun 2005 2005 2006 A. DEVELOP A FRANCHISE RENEWAL PLAN AND STRATEGIES FOR THE IMPLEMENTATION OF THAT PLAN 1. Devise renewal procedures Buske, City staff 2. Identify requirements of state/local laws and Buske,City staff — any needed Ordinance amendments - i B. CONDUCT A TECHNICAL EVALUATION OF THE CABLE COMPANY 1. System-wide test and inspection Kramer > 2. Examine franchise requirements vs Kramer - > capabilities of existing facilities i C. EVALUATE PAST PERFORMANCE OF THE CABLE COMPANY 1 Review compliance with Franchise Christ > provisions 2. Review customer service standards and > consumer complaints Christ,Wilson 3. Review PEG Access resources VanDalsen D. CONDUCT FRANCHISE FEE PAYMENT Smith - i E. IDENTIFY FUTURE COMMUNITY CABLE - RELATED NEEDS AND INTERESTS 1. Conduct a telephone survey Wilson,VanDalsen 2. Conduct focus group workshops Buske,Welsh, City staff ) - - 3. Analyze strategic and long-range plans VanDalsen —� 4. Conduct meetings and interviews Buske, City staff >. (i.e. hotels, NPOS,schools) _ 5. Participate in public hearing(s) Buske, City staff 6. Write community needs report VanDalsen RESPONSIBLE Apr- Jul- Jan- Jul- Jan- TASK DESCRIPTION PERSONS Jun Dec Jun Dec Jun 2005 2005 2006 2006 2007 F. IDENTIFY FRANCHISE RENEWAL GOALS, - - DEVELOP PROPOSED FRANCHISE - - POSITIONS,DRAFT MODEL FRANCHISE& ORDINANCE 1. Develop Proposed Franchise Provisions to Buske, Columbia be Sought - - - 2. Develop Franchise Monitoring and Buske - - - Enforcement Procedures - - - 3. Recommend Franchise Provisions to Buske II' Ensure Future System Upgrades - 4. Prepare Draft of a Model Franchise and Buske, Christ —� Ordinance G. INFORMAL FRANCHISE RENEWAL - - NEGOTIATIONS(Optional) 1. Develop Negotiation Strategy and Conduct Buske, Horwood of Negotiations 2. Provide Advice throughout Negotiation Buske, Honvood Process ACE VRUTM ' I'#¢I If" I`"'.' !"1'LR.10N� .� SU�TI.Yk�C DATES/O1/D5Y1 PRODUCER 916-974-7800 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION John 0. Bronson Co. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 3636 American River Or #200 COMPANIES AFFORDING COVERAGE Sacramento CA 95864 COMPANY A Fireman's Fund Insurance INSURED COMPANY The Buske Group B Houston Casualty CD 3001 J Street #201 COMPANY Sacramento CA 95816 C COMPANY D THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO TYPE OF INSUBANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LTR DATE IMM/DD/YY) DATE(MM/DDNY) LIMITS A GENERAL LIABILITY AZC80778082 2/12/05 2/12/06 GENERAL AGGREGATE $ 4000000 X COMMERCIAL GENERAL LIABILITY PRODUCTS-COMP/OP AGG $ 4000000 CLAIMS MADE lxl OCCUR PERSONAL&ADV INJURY $ 2000000 OWNER'S&CONTRACTOR'S PROT EACH OCCURRENCE $ 2000000 X HIRED&NON- FIRE DAMAGE(Any one fire) $ 1000000 OWNED AUTO MED EXP(Any ore person) $ 10D00 AUTOMOBILE LIABILITY ANY AUTO COMBINED SINGLE LIMIT $ _ ALL OWNED AUTOS — BODILY INJURY $ _ SCHEDULED AUTOS (Per person) HIRED AUTOS - - BODILY INJURY $ NON OWNEDAUTOS (Per accident) PROPERTY DAMAGE b GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHER THAN AUTO ONLY EACH ACCIDENT $ AGGREGATE $ EXCESS LIABILITY EACH OCCURRENCE $ UMBRELLA FORM AGGREGATE $ OTHER THAN UMBRELLA FORM $ WORKERS COMPENSATION AND TORY LIMITS DER LIMITS - - EMPLOYERS'LIABILITY ' EL EACH ACCIDENT b THE PROPRIETOR/ INCL EL DISEASE-POLICY LIMIT $ PARTNERS/EXECUTIVE OFFICERS ARE: EXCL EL DISEASE-EA EMPLOYEE $ B OTHER H70510351 1/31/05 1/31/06 CONSULTANTS $500,000 LIMIT LIABILITY $ 5,000 DEDUCTIBLE DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/SPECIAL ITEMS EVIDENCE OF INSURANCE CERT HOLDER, ITS OFFICERS & EMPLOYEES ARE ADDITIONAL INSURED PER AB9189 5/99 "" GL WAIVER OF SUBROGATION PER AB9189 5/99(pg5) 10 DAYS NOTICE FOR NONPAYMENT OF PREMIUM G'ER'1',Y #CAATH',HOLDER. A:CF\N!CII.LATIQN'; .�. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF PALM SPRINGS--ATTN B EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL JOHNSON-PROCURE & CONTRACT MGR 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, 3200 EAST TAHQUITZ CANYON WAY BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY PALM SPRINGS CA 92262 O KIND UPON THE1�DJpMPAN ITS AGENT OR REPRESENTATIVES. AUT RI aA,RESGJJTAt�1 � , ACt?Ctt?:2�a-5"#tiJ51: 21� ta' .": ®ACQRC�:C£�#1pT}8A1'ffSN 19�8:. THE BUSKE GROUP i� ZC807io0o2 ABC MultiCover - AB 91 89 05 99 -Iltis endorsement modifies insurance provided wider the following. American Business Coverage Your policy is broadened and clarified as follows: permanent lodging, or premises by or at I. Non Employment Discrimination Liability the direction of any insured; or (13) Arising out of,discrimination,if insurance Unless Personal Injury or Advertising Injury is thereof is prohibited by law; or excluded from this policy: (14) Fines, penalties, spec performance, or A. Section III - Definitions, Item 17. Personal injunctions levied or imposed by a go- Injury is amended to include: vernmental entity, or governmental code, f. Discrimination law, or statute because of discrimination. 2. Blanket Additional Insured B. Section III - Definitions, Item 2. Advertising Injury is amended to include: Section If - liability Coverage, Part I. Who Is An e. Discrimination Insured, Item 2. is amended to include: f. Any person or organization that you are re- C. Section III - Definitions is amended to in- quired by a written insured contract to include elude: as an insured, subject to all of the following 30. Discrimination means the unlawful treat- provisions: ment of individuals based on race, color, (1) Coverage is limited to their liability aris- ethnic origin, gender, religion, age, or ing out of: sexual preference. Coverage, Part H. Ex- (a) the ownership; maintenance or use D. Section TI - Liability g of that part of the premises, or land elusions, Item Lp Personal Injury or Adver- owned by, rented to, or leased to tising Injury is amended to include: you; or (11) Arising out of discrimination directly or (b) your ongoing operations performed indirectly related to the past employ- for that insured; or ment, employment or prospective em- ployment of any person or class of (c) that insured's financial control of persons by any insured; or you; or (12) Arising out of discrimination directly or (d) the maintenance, operation or use indirectly related to the sale, rental, lease by you of equipment leased to you or sub-lease or prospective sale, rental, by such person(s) or organization(s); lease or sub-lease of any dwelling, or This Form must be attached to Change Endorsement when-issued after the policy is written. One of the Fireman's Fund Insurance Companies as named in the policy .1 Se rotary Preside t A 89119 5-99 Page 1 of 5 4. Blanket Waiver of Subrogation before you acquired or formed the or- Section H - Liability Coverage, Part K. Liability ganization; and Medical Payments Genera! Conditions, is (c) Coverage C does not apply to personal amended to include: injury or advertising injury arising out of an offense committed before you ac- 6. Transfer of Rights of Recovery Against Oth- quired or formed the organization. ers to us and Blanket Waiver of Subrogation 6. Medical Payments a. If the insured has rights to recover all or part of any payment we have made under Unless Coverage D. Medical Payments is excluded this Coverage Part, those rights are from this policy: transferred to us. The insured must do nothing after loss to impair those rights. A. Section H - Liability Coverage, Part H. Ex- A.t our request, the insured will bring suit elu ions, Item 2.f. is replaced with: or transfer those rights to us and help us f. Included within the products-completed enforce them. operations hazard. However, this exclu- b. If required by a written insured contract, sion does not apply to expenses for den- we waive any right of recovery we may W services. have against any person or organization B. Section II - Liability Coverage, Part G. Cov- because of payments we make for injury erage, Item 2., is amended to include: or damage arising out of your operations or your work for that person or organ- C. Coverage D. Medical Payments is pri- ization. mary and not contributing with any 5. Broadened Named Insured other insurance, even if that other insur- ance is primary also. Section H- Liability Coverage, Part I. Who Is An 7, Tenant's Legal Liability Insured, Item 4. is replaced with: A. Section III - Liability Coverage, Part J. Li- 4. All of your subsidiaries, companies, corpo- ability and Medical Payments Limits of In- rations, ferns, or organizations, as now or surance, Item 3. is replaced with: hereafter constituted, qualify as Named In- sured under this policy if: 3. The most we will pay under Coverage C - Liability for damages because of prop- (a) you have the responsibility of placing in- erty damage to premises while rented to surance for each such entity; and you, temporarily occupied by you with (b) coverage for the entity is not otherwise the permission of the owner, or managed more specifically provided; and by you under a written agreement with the owner: (c) the entity is incorporated or organized a. L sing out a any Covered Cause of under the laws of the United States of Loss shall be the greater of: America. L But each entity is insured only while you (1) $1,000,000; or own, during the policy period, a controlling (2) The Tenant's Legal Liability interest in such entity of greater than 50% of limit shown in the Declarations. the stock or assets. However: 8. Chartered Aircraft (a) Coverage under this provision is afforded only until the end of the policy period, Section H - Liability Coverage, Coverage C, Part or the 12 month anniversary of the policy H. Exclusions, Item l.g. is amended to include: inception date, whichever is earlier; (5) An aircraft in which you have no ownership (b) Coverage C does not apply to bodily in- interest and that you have chartered with jury or property damage that occurred crew. AB9129 5-99 Page 3 of 5 CERTHOLDER COPY STATE P.O. BOX 420807, SAN FRANCISCO, CA 94142-0807 COMPENSATION INSURANCE FUND CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 05-31-2005 GROUP: POLICY NUMBER: 1385193-2005 CERTIFICATE ID: 49 CERTIFICATE EXPIRES: 03-01-2006 03-01-2005/03-01-2006 CITY OF PALM SPRINGS BRUCE R JOHNSON-PROCUREMENT & CONT MGR 3200 EAST TAHQUITZ CANYON WAY PALM SPRINGS CA 92262 This is to certify that we have issued a valid Worker's Compensation insurance policv in a form approved by the California Insurance Commissioner to the employer named below for the policy period indicated. This policy is not subject to cancellation by the Fund except upon 30 days advance written notice to the employer. We will also give you 30 days advance notice should this policy be cancelled prior to its normal expiration. This certificate of insurance is not an insurance policy and does not amend,extend or alter the coverage afforded by the policy listed herein.Notwithstanding any requirement,term or condition of any contract or other document with respect to which this certificate of insurance may be issued or to which it may pertain,the insurance afforded by the policy described herein is subject to all the terms, exclusions,and conditions,of such policy. b6� NLQntwa.(_ C . O L AUTHORIZED REPRESENTATIVE PRESIDENT EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE. ENDORSEMENT #2065 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 03-01-1998 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. EMPLOYER BUSKE, MILLER SUE (PARTNER) AND VAN DALSEN, RANDY (PARTNER) DBA: THE BUSKE GROUP 3001 J ST STE 201 SACRAMENTO CA 95816 [PMF,CS] PRINTED.0531-2005 SCIF 10262E Accept this certificate only if you see a faint watermark that reads"OFFICIAL STATE FUND DOCUMENT" PAGE 1 OF Best's Rating Center- Search Results Page 1 Page 1 of 2 ter 1=� View Ratings:Fi panc'al Strength Issuer Credit securities Ad d Seam Other Web Centers, Select One - Search Results page 1 of 1 14 Rated and non-Rated companies found, results sorted by Company Name Criteria Used: Company Name: Company names starting with firemans To refine your search, please use our Advanced Search or view our Online Help for more information. New Search firemans View results starting with: A B C D E F G H I J K L M N O P O R S T U V W X Company Information Financial Strength Ratings Issuer Credit Ratings i Outlook/ Outlook/ ` "r AMB# + Company Name '"' Rating + Implication I Long-Term Implication Y' Short-Term T Do 19607 Fire-mans Fund Companies US 03682 Fireman's Fund counlv_Muthat Ins Co A Negative US 01892 Fireman's Fund Indemnity Corporation A Negative US 00034 Firemans Fund Insurance Companies A Negative US 02179 Fireman's Fund Insurance Company A Negative US 87747 Fireman's Fund Insurance Company-CAB CA 02616 Fireman's Fund Insurance Company of CA A Negative US 02717 Fireman's Fund Insurance Cc of HI Inc A Negative US 02824 Fireman's Fund Insurance Cam an of LA A Negative US 11262 Fireman's Fund Insurance Company of MO A Negative US 02615 Fireman's Fund Insurance Company of NE NR-3 Not US Applicable 02843 Fireman' Fund Insurance Company of A Negative US Ohio 02180 Fireman's Fund Insurance Company of TX NR-3 Not US Applicable 02617 Fireman's Fund Insurance Company of WI A Negative US Note: Financial Strength Ratings as of 0611012005 04:37 PM E.S.T. ' denotes Under Review Issuer Credit Ratings Visit Best's Ratina Center for a complete overview of our rating process and methodologies. Important Notice:Best's Ratings reflect our independent opinion,based on a comprehensive quantitative and qualitative evaluation of a company' strength,operating performance and business profile.These ratings are neither a warranty of a company's financial strength nor its ability to meet i obligations,including those to policyholders.View our entire notice for complete details ..-------____-_____ _. .., .,.._ .._. ... ..... . ...... Customer Service I Product Support I Member Center I Contact Infa I Careers About A.M. Best I Site Map I Privacy Polite I Speunty_I Terms of Use I Legal&Licensing http://www3.ainbest.coin/ratings/RatingsSearch.asp?AltSrc=9 6/10/2005 Best's Rating Center - Search Results Page 1 Page 1 of I �TM44 View Ratings:Financial Strength Issuer Credit Securities Advanced Search Other Web Censers, Select One Search Results page 1 of 1 2 Rated and non-Rated companies found, results sorted by Company Name Criteria Used: Company Name: Company names starting with houston casualty To refine your search, please use our Advanced Search or view our Online Help for more information. Now search houeton casualty View results starting with: ABC D E F G H I J K L M N O P Q R S T U V W X Company Information Financial Strength Ratings Issuer Credit Ratings Outlook/ # Outlook/ Al + Company Name Rating,— T Implication •' Long-Term T Implication T Short-Term T Dc / I 03286 Houston gas uaily Company_ 1. At,,' Stable US 83642 Houston Cos Cc Europe,Segy Reas S A NR�S Not Sp; Applicable Note: Financial Strength Ratings as of 0611012005 04:37 PM E.S.T. * denotes Under Review Issuer Credit Ratings Visit Best's Rating Center for a complete overview of our rating process and methodologies. ortant ce:Best's ngs ect our strength,operating ng performance andfibus business profiledent opinion,based on a These ratings are nether a warranty comprehensive a company's finanve and cialitative strength nluation ofa orr its ability tom et ii obligations,including those to policyholders.View our entire notice for complete details Customer Service Product Support I Member Center I Contact Info I Careers About A M.Best I Site Map I Privacy Policy I Security I Terms of Use I Legal&Licensing Copyright©2005 A.M Best Company,Inc All rights reserved A.M.Best Worldwide Headquarters,Ambesl Road,Oldwick,New Jersey,08858,U S A 1-ittp://www3.anibest.coin/ratings/RatingsSearch.asp?AltSrc=9 6/10/2005 GF pALM S.e� \. V F FF �Ii011l�,', C4 Fovte��r F To: Office of City Clerk From: Office of Procurement & Contracting Subject: Buske Group Date: June 10, 2005 Attached are the following documents: r 2 sets of Contract documents executed by Contractor N/A Performance Bonds N/A Original Payment Bonds N/A Confirmation of status of surety company N/A Original Bid N/A Copy of bid bond N/Ar One copy of Specifications i/ Certificates of hnsurance for the required policies 1/ Confirmation of status of insurance carriers N/A Copy of Extract of Public Works Contract Award N/A Copy of Bid Result Check List N/A Copy of Contract Abstract f: 'J _ ;m e� e' H:\USERS\WPPUBLIC\CONTRACT PROCESSING\Clerk transmittal -