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HomeMy WebLinkAboutItem 4.02 CableTV RegulatConsltnt (2) " f . e CITY OF DUBLIN AGENDA STATEMENT CITY COUNCIL MEETING DATE: July 25, 1994 SUBJECT: Cable Television Regulation Consultant Agreement 170 (prepared by: Bo Barker, Management Assistant) EXHIBITS ATTACHED: 1. /Resolution authorizing the City Manager to execute an agreement / with Telecommunications Management Corporation. 2. Copy of the proposed agreement. RECOMMENDATIO~:..f'j" Authorize the City Manager to execute the agreement with y(/'l'"" Telecommunications Communications Management Corporation for Cable regulation consulting. FINANCIAL STATEMENT: The total contract with Telecommunications Corporation is $3000 plus any travel expenses. The total cost is being shared by the Cities of Dublin, Livermore, Pleasanton, and San Ramon. The cost to the City of Dublin will be under the budget of $1000. DESCRIPTION: On October 5, 1992, Congress enacted the Cable Television Consumer Protection and Competition Act of 1992. The Act allows cable systems not subject to effective competition to be regulated. In accordance with regulations prescribed by the Federal Communications Commission (FCC), franchising authorities, such as cities, may regulate basic cable service rates, charges for related equipment and establish customer service standards that are consistent with the FCC regulations. Rates for premium channels and pay-per-view channels are not regulated. Rates for all other cable programming (i.e. Satellite Value package) are subject to regulation by the FCC. Under the FCC regulations, the City's franchised cable operation, Viacom, is required to submit Form 393 which details how the operator calculates the rates for the basic service tier. The attached agreement with Telecommunications Management Corporation provides for consulting services to evaluate the Form 393. Consulting services are necessary to insure a proper level of analysis using an experienced firm in the cable television industry. The Cities of Livermore, Pleasanton and San Ramon will be sharing in the cost of the evaluation. The total cost of the consulting services for one Form 393 will be $3,000 plus travel expenses. Dublin's share will depend on the findings made by the consultant, but should be under the budgeted amount of $1000. COPIES TO: €F' CITY CLERK FILE ~ ITEM NO. 4. 1~ e e RESOLUTION NO. .94 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN **************** AUTHORIZING THE AGREEMENT WITH TELECOMMUNICATIONS MANAGEMENT CORPORATION WHEREAS, on February 22, 1994, the City Council adopted a Resolution seeking certification with the Federal Communication Commission to regulate basic cable television rates; and WHEREAS, Under the FCC regulations, Viacom Cable is required to submit Form 393, written documentation of rate calculations, for the City's review and approval; and WHEREAS, the Cities of Dublin, Livermore, Pleasanton and San Ramon have agreed to share in the cost of the consulting services in order to reduce costs. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin hereby authorizes the City Manager of the City of Dublin to execute the agreement for consulting services with Telecommunications Management Corporation. PASSED, APPROVED AND ADOPTED this 25th day of July, 1994 AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk EXHIBIT 1 e e CONTRACT FOR CONSULTANT SERVICES THIS AGREEMENT is made and entered into this day of , by and between the CITIES OF PLEASANTON, DUBLIN, SAN RAMON, and LIVERMORE, municipal corporations (hereinafter referred to as the "Cities"), and Telecommunications Management Corporation, a California corporation whose address is 5757 Wilshire Blvd. Suite 635, Los Angeles, CA 90036, and telephone number is 213/931-2600, (hereinafter referred to as the "Consultant"). ,V I T N E SSE T H: A. Consultant is qualified to provide, and experienced in providing, cable television rate consulting services and has offered its services for the purposes specified in this Agreement. B. In the judgment of the Cities, it is necessary and advisable to employ the services of Consultant for the purposes provided herein. NOW THEREFORE, in consideration of the mutual covenants, agreements and conditions contained herein, Cities and Consultant agree as follows: 1. Consultant's Services. Consultant shall diligently perform the services of analyzing Cities' Basic Service Tier cable television rates as submitted by Viacom Cablevision on form 393: a. Consultant shall perform all work described in Exhibit A, "Scope of Work", attached hereto and incorporated herein by this reference. b. Consultant shall meet with Cities' staff and other pertinent agencies as necessary to complete the scope of work outlined in Section 1 (a) above. c. Consultant will provide weekly status reports to Cities, describing project activities to date and expected work plans. Consultant will provide written notice to Cities of any anticipated changes to agreed upon project schedule. 2. Cities Services. In order to assist Consultant in this work, Cities shall provide necessary direction within a reasonable time. 3. Staff. Prior to commencement of work, Consultant will provide to Cities a list of all project persoMel and their specific project responsibilities. 1 EXHIBIT 2 e e 4. Sufficiency of Consultant's Work. All reports prepared for Cities shall b~ adequate and sufficient to meet the purposes for which they are prepared. 5. Ownership of Work. All reports, work data, and all other documents completed or partially completed by Consultant in the performance of this Agreement shall become the property of Cities. 6. Terms. Time is of the essence. Consultant shall begin work upon execution of this Agreement by Cities' representatives, and shall proceed with due diligence to complete the project. 7. Compensation. For the services to be rendered hereunder, Cities shall pay Consultant, not to exceed $3,000 for Task 1 as described in Exhibit A, "Scope of Work", plus $800 plus travel costs for each meeting attended under Task 2 of Exhibit A Task 2 fees will be reduced for multiple meetings attended in a single day as described in Exhibit A Fees will not be revised without sufficient demonstration by Consultant that Cities have requested Consultant to perform work not included in Exhibit A "Scope of Work". If Consultant so demonstrates to the Cities' satisfaction that the scope of work has been altered, Consultant and Cities will revise scope of work and fees in accordance with Section 8, "Changes". a. Payment shall be made in accordance with Exhibit B, "Payment Schedule." Invoices submitted to Cities for payment must contain a brief description of work performed. A detailed account of all reimbursable expenses must be invoiced separately. Payment shall be made within thirty (30) days of receipt of Consultant's invoice. b. Upon completion of work and acceptance by Cities, Consultant shall have sixty (60) days in which to submit final invoicing for payment. An extension may be granted by Cities upon receiving a written request thirty (30) days in advance of said time limitation. The Cities shall have no obligation or liability to pay any invoice for work performed which the Consultant fails or neglects to submit within sixty days, or any extension thereof granted by the Cities, after the work is accepted by the Cities. 8. Chane:es. Cities may request, from time to time, changes in the scope of services to be provided by Consultant. Any changes and related fees shall be mutually agreed upon between Cities and Consultant and shall be the subject of a written amendment to this Agreement prior to proceeding. 9. Consultant's Status. In the performance of the obligations set forth in this Agreement, Consultant shall have the status of an independent contractor and Consultant shall not be considered to be.an employee-of the Cities for any purpose. All persons working for or under the direction of Consultant are its agents, servants, and employees and are not agents, servants, or employees of Cities. 2 e e 10. Termination of Convenience of Cities. The Cities may terminate this ~greement at any time by mailing a notice in writing to Consultant that the Agreement is terminated. Said Agreement shall then be deemed terminated, and no further work shall be performed by Consultant. If the Agreement is so terminated, the Consultant shall be paid for that percentage of the work actually completed, based on a pro rata portion of the total fixed sum compensation described in Section 7 herein at the time the notice of termination is received. 11. Non-Assignability. The Consultant shall not assign, sublet, or transfer this Agreement or any interest or obligation therein without the prior written consent of the Cities, and then only upon such terms and conditions as Cities may set forth in writing. 12. Indemnifv and Hold Harmless. Consultant shall defend, indemnify, and hold harmless, the Cities and their officers and employees from and against all claims, losses, damage, injury, and liability for damages arising from errors, omissions, negligent or wrongful acts of the Consultant in the performance of its services under this Agreement, regardless of whether the Cities have reviewed and/or approved the work or services which has given rise to the claim, loss, damage, injury or liability for damages. This indemnification shall extend for a reasonable period of time after completion of the project as well as during the period of actual performance of services under this Agreement. The Cities' acceptance of the insurance certificates required under this Agreement does not relieve the Consultant from its obligation under this paragraph. 13. Insurance. During the term of this Agreement, Consultant shall maintain in full force and effect at its own cost and expense the following insurance coverage: a. General Liability and Bodilv Iniury Insurance A comprehensive, general liability insurance for at least $500,000 combined limit for bodily injury and property damage and provide that the Cities, their officers, employees and agents are named additional insureds under the policy. The policy shall state in writing either on the Certificate of Insurance or attached rider thereof that this insurance will operate as primary insurance for work performed by Consultant and its subconsultants, and that no other insurance effected by Cities or other named insured will be called on to cover a loss covered thereunder. b. Worker's Compensation Insurance Worker's Compensation Insurance for all of Consultant's employees, all in strict compliance with State laws, and to protect the Cities from any and all claims thereunder. e. Certificate of Insurance Consultant shall complete and file with each of the Cities prior to the Cities' execution of this Agreement, and prior to engaging in any operation or activity set forth in this Agreement, certificates of insurance evidencing the insurance coverage(s) set forth above and which shall 3 e e provide in writing that no cancellation, major change in coverage, or expiration by the insurance company will be made during the term of this Agreement without thirty (30) days written notice to the Cities prior to the effective date of such cancellation or change in coverage. 14. Notices. All notices herein required shall be in writing and shall be sent by certified or registered mail, postage prepaid, addressed as follows: TO CITIES: City Manager City of Pleasanton 123 Main Street P.O. Box 520 Pleasanton, CA 94566 City Manager City of Livermore 1052 S. Livermore Ave. Livermore, CA 94550 City Manager City of Dublin P.O. Box 2340 Dublin, CA 94568 City Manager City of San Ramon P.O. Box 5148 San Ramon, CA 94583 TO CONSULTANT: Telecommunications Management Corp. 5757 Wilshire Blvd. Suite 635 Los Angeles, CA 90036 15. Conformance to Applicable Laws. Consultant shall comply with all applicable Federal, State, and Municipal laws, rules, and ordinances. No discrimination shall be made by Consultant in the employment of persons to work under this contract because of race, color, national origin, ancestry, sex or religion of such person. 16. Waiver. In the event that either Cities or Consultant shall at any time or times waive any breach of this Agreement by the other, such waiver shall not constitute a waiver of any other 4 e e or succeeding breach of this Agreement, whether of the same or of any other covenant, condition or obligation. 17. Attornev's Fees. The prevailing party in any action brought to enforce or construe the terms of this Agreement may recover from the other party its reasonable costs and attorney's fees expended in connection with such an action. 18. Scone of A2reement. This writing constitutes the entire Agreement between the parties relative to the cable television rate review project and modification hereof shall not be effective unless and until such modification is evidenced by a written amendment signed by both parties to this Agreement. THIS AGREEMENT executed the date and year first above written. CITY OF PLEASANTON 'J::0~0.1~~ Deborah Acosta, City Manager CITY OF DUBLIN Richard Ambrose, City Manager CITY OF SAN RAMON Herb Moniz, City Manager CONSULTANT CONTY 5 e EXHIBIT A e CITIES OF PLEASANTON, LIVERMORE, SAN RA1\10N, DUBLIN CABLE TELEVISION RATE REVIEW CONSULTANT SCOPE OF WORK A. GENERAL Telecommunications Management corp. (TMC) shall provide consultant assistance to the cities of Dublin, Livermore, San Ramon and Pleasanton (the Cities) as necessary for the cities to implement the regulation of the basic cable television rates of Viacom Cable (Viacom). The tasks to be provided include: B. TASKS 'l'ask 1 Evaluation of Rates The Consultant shall" review the benchmark rate documentation submitted by Viacom for the cities. This review shall include: A detailed analysis of the FCC Form 393 submitted for compliance with Federal regulations and conformance with industry practices. A comparison of the calculated benchmarks (for both the basic and cable programming service tiers as well as related equipment) with the rates currently in effect. Preparation of draft requests for clarification of incomplete or unclear items. Preparation of draft letters for "tolling" the additional 90 day review period permitted by the regulations. The end-item of the final review shall be a written report summarizing the findings and providing recommendations for action. Task 2 Presentation of Findings The Consultant shall prepare and present the Task 1 report to the cities collectively and individually a~ well as respond to questions and provide recommendations for future actions. 1 e e c. PERSONNEL Mr. carl pilnick, President of Telecommunications Management corp., and Mr. Michael J. Friedman, TMC Vice President, will perform all tasks. No subconsultants or subcontractors will be utilized. D. ASSUMPTIONS This proposal is based on the assumptions listed below. If these assumptions are "incorrect, the Consultant would be pleased to modify its proposal to best suit the needs of the cities. Assumption 1 The cable operator submits a single Form 393 for the group. If different groupings of cities are utilized by the cable operator, the consultant will evaluate the cable operator used groupings, with each group counted as a separate evaluation. Assumption 2 Invoices for services will be submitted to one designated city for payment. Other invoicing alternatives may be acceptable, including common billing for common services, and individual billing for individual services. D. SCHEDULE The following schedule is proposed: Task 1 All services will be performed in conformance with the schedules established by the FCC's regulations. Upon submission of an FCC Form 393 from the cable operator, the Consultant will complete its initial review within thirty (30) days of receipt. Based on experience with other communities, the Consultant will complete an initial review of the materials for each group within 10 working days. This" initial review will determine whether the cable operator has substantially complied with the requirements of , the Federal regulations. If the Form has significant errors, the Consultant will provide a 2 e e draft letter to the operator with notice indicating the errors, as well as notification that the Form does not satisfy existing regulations and is unacceptable. If only minor errors are found, the Consultant will either correct them, or provide a draft notice to the cable operator requesting clarification. In either case, the Consultant will include in the draft letter a notice to the cable operator that the franchising authority plans to utilize the additional 90 days permitted for review of the submitted materials and requested clarifications. Task 2 At the convenience of the Cities. E. COSTS The total fee and invoice schedule for all Tasks, shall be as follows: Task 1 $3,000 per group receiving a common Form 393. Task 2 $800 plus travel costs for the joint meeting, and $800 plus travel costs for each individual meeting. "The Consultant will reduce this amount if multiple meetings can be held for different communities on the same day (i.e., sequentially) For example, if one member from the Consultant can reasonably attend two public meetings in one day, the cost for attendance will be $1,200 total for both communities plus travel costs. This savings reflects reduced travel time. As noted above, travel costs are in addition to all other Consultant fees. For services beyond the stated scope of work, TMC shall provide the services, at the County and Cities' option, at an additional fixed-price (or not to exceed cost) or at an hourly rate of $150 for Mr. Pilnick and $100 for Mr. Friedman. Items considered beyond the stated scope of work include, but are not limited to, services not directly involved in the review of the pertinent FCC Forms or TMC's presentation of the results of the review. TMC shall obtain prior authorization before performing services beyond the stated scope. 3 e e EXHIBIT B CITIES OF PLEASANT ON, LIVERMORE, SAN RAMON, DUBLIN CABLE TELEVISION RATE REVIEW PAYMENT SCHEDULE Task 1 Upon completion of Task 1 $3,000 Consultant will invoice the City of Pleasant on for the full $3,000. Pleasanton will invoice San Ramon, Dublin, and Livennore. Task 2 Cities will be invoiced separately for any Task 2 fees. As described in Exhibit A, "Scope of Work," fees will be reduced for multiple meetings in one day. 7