2004-150-Approving An Amendment To The Agreement With Miller And Van Eaton For Cable Television Franchise Renewal Consultant ServicesRESOLUTION 2004-150
RESOLUTION OE THE TOWN OF LOS GATOS
APPROVING AN AMENDMENT 'TO 'THE
AGREEMENT WITH MILLER AND VAN EATON
FOR .CABLE TELEVISION FRANCHISE RENEWAL CONSULTANT SERVICES
WHEREAS, on March 31, 2005 the Town of Los Gatos Cable Television Franchise
Agreement with Comcast will expire; and
WHEREAS, the Town of Los Gatos is preparing to enter into cable television franchise
renewal negotiations with Comcast; and
WHEREAS, cable television franchise renewal negotiations are highly technical, labor
intensive, and require special expertise due to the complex laws that govern the process and the
many opportunities to enhance services to the community; and
WHEREAS, the Town has entered into an .agreement with Miller .and Van Eaton for
Cable Television Franchise Renewal Consultant Services; and
WHEREAS, the terms of Town's existing agreement with Miller and Van Eaton must
be amended to reflect a completion date of December 31, 2005 to continue renewal negotiations.
RESOLVED, by the Town Council of the Town of Los Gatos, County of Santa Clara,
State ofCalifornia, to approve the amendment of the agreement with Miller and Van Eaton for Cable
Franchise Renewal Consultant Services (Exhibit A) and authorize the Town Manager to execute said
amended agreement on behalf of the Town of Los Gatos.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of
Los Gatos, California, held on the 20th day of December, 2004 by the following vote:
COUNCIL MEMBERS:
AYES: Steve Glickman, Diane McNutt, Joe Przynski, Barbara Spector,
Mayor Mike Wasserman
NAYS.:
ABSENT:
ABSTAIN: ~%~~ ~~~
SIGNED: ~~
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CL R - l~~i ~ TIZATOR
LOS GATOS, CALIFORNIA
EXHIBIT A
AMENDMENT 'I'O AGREEMENT
This AMENDMENT TO AGREEMENT is entered into this day of , 2004,
by and between the Town of Los.Gatos, State of California, herein called "Town,":and Miller and Van Eaton,
herein called "Consultant."
RECITALS.
A. Town .and Consultant entered into an agreement for cable television franchise renewal consultant
services on May 12, 2003, a copy of which. is attached hereto as Attachment 2 and incorporated
herein'by reference.
B: Given the technical and complex nature of the cable television franchise agreement renewal process,
an extension is necessary to prepare for negotiations with the Town's cable operator.
AMENDMENT
Paragraph 1 of the Agreement is hereby amendedto reflects completion date of December 31, 2005..
2. All other terms and conditions ofthe Agreement dated May 12, 2002 remain in-full force and effect.
IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement as of
the date indicated on page one (1).
Town of Los Gatos, by:
Debra J. Figone, Town Manager
Town of Los Gatos
Miller and Van .Eaton, by:.
{Signature)
Approved ss to Form:
Orry P: Korb, Town Attorney
ATTEST:
Marlyn J. Rasmussen, C1erkAdminisbrator
(Print .Name)
Revised: .3/19/02
N:\S HARE\ca6leamendment2005 avpd
~•
..y'' ._ _J •~ ~" t''(L"E c~F" THE TOWN CLERK
xR fJ~. ~d
fgh
AGREEMENT FOR CABLE TELEVISION FRANCIS`
CONSULTANT SERVICES -ak~~ _ -!-
THIS AGREEMENT is entered-into this ~~'day of ~ , 2002, by and :between
the Town of Los.. Gatos, State of California, .herein called the "Town'y and Miller and Van Eaton,
L.L.P, engaged inprovidng cable television franchserenewal;consultingservices herein called the
"Consultant".
RECITALS
A. .The Town is considering undertaking activities to conduct cable television franchise renewal
proceedings and negotiations.
B. The Town desires to-engage a Cable Television Franchise Renewal Consultant to provide
consulting. services in conjunction with cable television franchise renewal process, because
of Consultant's .experience and qualifications to perform the desired work.
C. The Consultant represents and affirms that it is qualified and willing to perform the desired
work pursuant to this Agreement.
AGREEMENTS
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. .Scope of Services. -The Consultant shall provide the following services .listed below.
A. Conduct renewal work in four (4) broad phases: (1) planning; (2) ,information
gathering; {3) establishment of renewal goals; (4) and implernentafon of those goals
as further explained in Consultant's "A Proposal to the Town of Los Gatos,
California for Cable- Television Franchise .Renewal Services" (attached hereto as
Exhibit "A" :and incorporated by reference .herein).
B. ~ As Town staff directs provide assistance with one or more ofthe following tasks:
1. Assessment of cable-related community needs;
2. Past performance review;
3. Technical review;
4. Legal :assistance regarding cable franchise .issues;
5. Drafting of new franchise agreement;
6. I-net planning and report;
Revsed:3/l9/02 Page 1
N'.\IvIGRVHaruyama\cable television renewal\millervaneatonrenewalcontract.wpd
~` ATTACHMENT 2
7. Update of the Town's cable television .franchise ordinance;
8. Provision of engineering assistance as it relates to cable television
negotiations; and
9. Development of a negotiation strategyto assistance the Town with
renewal negotiations.
C. Work regarding the development of a negotiation .strategy for renewal negotiations shall
include the following:
1. Consultant shall Identify a negotiating team, including a Consultant team leader and
members of the Town staff. Consultant will be responsible for coordinating team
meetings .and reviewing .analysis of the needs assessment reports, .and developing
specific negotiating goals and priorities.
2. Consultant shall develop a strategy for achieving the goals identified.
3. Consultant shall conduct all negotiations. After each session, Consultantwill debrief
the negotiating team, re-evaluate negotiating strategy, and reconsider .negotiation
goals as required to achieve the best results.
4. Throughout the negotiation, other members of the negotiation team will provide the
technical and analytical. support required to respond to proposals made by the
• operator. .
5. ~ Consultant will. work with the cable operator to establish the principles which will
provide the basis for agreement. Based on this agreement, Consultant shall revised
the ~ draft franchise agreement and ordinance to reflect the final deal.
2. Time of Performance. The services of the Consultant are to commence upon the.
execution of this Agreement and issuance of a Town purchase order, with all work to be
completed by May 1, 2003.
3. Comblance with Laws. The Consultant shall comply with all applicable laws, codes,
. ordinances, and regulations of governingfederal; state and local laws. Consultant represents
and warrants to Town that it :has all licenses,. permits; qualifications and approvals of
whatsoever nature which are legally required for Consultant to practice .its profession.
Consultant represents and warrants to Town that Consultant shall, at its sole cost and
expense, keep in effect or~ obtain at all times during the term of this Agreement any licenses,
permits, •and approvals wfiich are legally required for Consultant to practice •its profession.
Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of
the -Code of the Town of Los Gatos.
4. Sole Responsibility. Consultant shall be responsible for employing or engaging all persons
necessary to perform the services under this Agreement.
Revised; 3/19/02 Page 2
N:1MG121JHaruyamatl'rojects\cable television renewal~tnillervaneatonrenewalcontract.wpd
5. Tnformation/Renort Handling. All documents .furnished to Consultant by the Town and all
reports and supportive data prepared by the Consultant under this Agreement are the Town's..
property and shall be delivered to .the Town upon the completion of Consultant's services or
at the Town's written request. .All .reports, information, data, .and exhibits prepared or
assembled by Consultant in connection with the performance of its services. pursuant to this
.Agreement are confidential until released by the Townto the public, and the Consultant shall
not make .any of .the these documents or .information available to any individual or
organization not employed by the Consultant or the Town without the written consent of the
Town before such release. The Town acknowledges that the reports to be prepared by the
Consultant pursuant to this Agreement are .for the purpose of evaluating a defined project,
and. Town's use of the information contained in the reports prepared by the Consultant. in
connection with other projects :shall be solely at 'T'own's risk, unless Consultant expressly
consents to such use in writing.. Town further agrees that it will not appropriate any .
.methodology or technique of :Consultant which. is .and has been .confirmed in writing by
Consultant to be a trade secret of Consultant.
6. Compensation. Compensation for Consultant's professional services shall not exceed
$100.000, unless additional services are required and mutually agreed. upon by the Town
. Manager and Consultant.
Billing hall be accompanied by a detailed explanation of the work performed by whom at
what :rate and on what date. Also, plans, specifications, documents or other pertinent
materials shall be submitted for Town review, even if only in partial or drat form.
Payment shall be net thirty (30) days.
All invoices and statements to the Town shall reference the Town's purchase order number
and be addressed as follows:
Invoices:
Town of Los Gatos
Attn: Accounts .Payable
P.O. BOX 6'SS
Los Gatos, CA :95030
Statements:
Town:of Los Gatos
Attn: Finance Department
P.O. Box 6SS.
Los Gatos, CA .95030
7. Availability of Records, Consultant shall maintain therecords supporting this billing for not
less than three years following completion of the work under this .Agreement. Consultant
shall .make these records available to authorized personnel of the Town at the Consultant's
offices during business hours upon written request of the Town.
8. Proj ect Manager. The Proj ect Manager for the Consultant for the work under this Agreement
shall be Jenny Haruvama. Town of Los Gatos Administrative Analyst, and William Lowery
of Miller :and. Van .Eaton L L P
Revised: 3/19/02 Page 3
N:\MGRUHaruyama\l?rojects\cab]etclevision renewal~nillervaneatonrenewa]contract.wpd
,~( ~ `=~'
9. Assil?nability and Subcontracting, The services to be performed under this Agreement are
unique and personal to the Consultant. No portion of these services shall be assigned or .
subcontracted without the written consent of the Town.
10. Notices. Any .notice required to be given shall be deemed to be duly and properly given if
mailed postage prepaid, and addressed to:
To Town:
Orry P. Korb
Town Attorney
110 E. Main Street
Los Gatos, CA 95030
To Consultant:
'William Lowery
Miller and Van Eaton, L,L.P.
400 Montgomery Street, Suite 50.1
San Francisco, CA 94104
or personally delivered to Consultant to such address or.such other address as Consultant
designates in writing to Town. •
11. Independent Contractor. It is understood that the Consultant, in the performance of the work
and services agreed to be performed, shall act as and. be an independent contractor and not
an agent or employee of the Town. As an independent contractor he/she shall not obtain any
rights to retirement benefits or other benefits which accrue to Town employee(s): With prior
written consent, the Consultant may perform some obligations under this .Agreement by
subcontracting,, 'but may .not delegate ultimate responsibility for performance or assign or
transfer interests under this Agreement.
Consultant agrees to testify in .any litigation brought.regarding the subject of the work to be
performed underthis Agreement. Consultant shall be cornpensatedforits costs and expenses
in preparing for, traveling to, and testifying in such matters at its then current hourly rates of
compensation, unless such litigation is brought by Consultant or is based on allegations of
Consultant's negligent performance or wrongdoing.
12. Conflict of Interest. Consultant understands that its professional responsibilities is solelyto
the Town. The Consultant has and shall not obtain any holding or interest within the Town
of Los Gatos. Consultant has no~ business holdings or agreements with any individual
member of the Staff or management of the Town omits representatives nor shall it enter into
any such holdings or agreements. In addition,: Consultant warrants that itdoes-not presently
and shall not acquire any direct or indirect .interest adverse to those of the Town in the
subj ect of this Agreement, and it shall immediately disassociate itself from such an interest
should it discover ithas done so and shall,. at the Town's sole discretion, divest itself of such
interest. Consultantshallnot knowinglyand shalltakereasonable steps to ensure that it does
not employ a person having such an interest in this performance of this Agreement.. If after
employment of a person, Consultant discovers it has employed a person with a direct or
indirect interest that would conflictwith its performance of this Agreement, Consultantshall
Revised: 3/19/02 Page 4
N:\NIGR1JHaruyama\Projects\cable television renewal\millervaneatonrenewalcontract.wpd
promptly notify Town of this :employment relationship, and shall, at the Town's sole
discretion; sever any such employment relationship.
13. Equal Employment Ot~ ortunitX. Consultant warrants that it is an equal opportunity
employer and shall comply with applicable regulations governing equal employment
opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate
. against persons employed or seeking employmentwith them on the basis of age, sex, color,
race, marital status, sexual orientation, ancestry; physical or mental disability, national origin,
religion, or medical condition, unless based upon a bona fide occupational qualification
• pursuant to the California Fair Employment & Housing Act.
14. Insurance. •
A. Minimum Scope of Insurance:
i. ~ Consultant agrees to have and .maintain, for the duration of the contract,
General Liability insurance policies insuring hire/her and his/her firm to:an~
amount not less than: ,one million dollars ($1,000,000) combined single limit
per occurrence for bodily .injury, personal .injury and property damage.
ii. Consultant agrees to have and maintain for the duration of the contract, an
Automobile Liability insurance policy ensuring him/her and' his/her staff to
an amount .not-less than one .million dollars ($1,000,000) combined single
limit per accident for bodily injury and property damage.
iii. Consultant shall. provide to the Town. all :certificates of insurance, with
original endorsements effecting coverage. Consultant agrees that all
certificates and endorsements are to be received and approved by the Town
before work commences.
iv. Consultant agrees to have and maintain, for the duration of the contract,
professional liability insurance in amounts not less than $1,000,000 which is
sufficient to .insure Consultant for professional errors or omissions in the
performance of the particular scope of work under this agreement..
B, General Liability:
i. The Town, its officers, officials, employees and volunteers are to be covered
as insured as respects: liability arising out of activities performed by or on
behalf of the :Consultant; products and completed operations of Consultant,
premises owned or usedby the Consultant. Thisrequirementdges not apply
to the professional .liability insurance required for professional errors and
omissions.
Revised: ail9roz Page 5
N:\MGRUHaruyama\]?rojects\cable television.renewal\millervaneatonrenewalcontract.wpd
~`~'~
r.
ii. The Consultant's insurance coverage shall be primary insurance as-respects
the Town, its officers, officials,:employeescnd volunteers. Anyinsurance or
self-insurances maintained by the Town, its officers, officials; employees or
volunteers shall be excess of the Consultant's insurance and shall .not
contribute with it.
iii. Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to the Town, its officers, officials, employees or
volunteers.
iv. The Consultant's insurance shall apply separately to each insured against
whom a claim is made or suit is brought, except with respect to the limits of
the insurer's liability.
C: All Coverages: Each insurance policy required in this item shall be endorsed to state
that coverage hall not be suspended; voided, cancelled, reduced in coverage or in
limits except after thirty (30j days' prior written :notice by certified mail, return
receipt requested, has been given to the Town. Current certification of .such
insurance shall. be kept on file at all times during the term of this agreement with the
Town Clerk.
D: In addition. to these policies, Consultant shall ,have and maintain Workers'
Compensation insurance as required by California law and shall provide evidence of
such policy to the Town before beginning services under this .Agreement. Further,
Consultant shall ensure that all subcontractors employed by Consultant provide the
required Workers' Compensation .insurance .for their respective employees.
15. Indemnf cation. The Consultant. shall save,. keep and hold harmless indemnify and defend
the Town its officers, agent, employees and volunteers from all damages,. liabilities,
penalties, costs; or expenses in law or equity that may at any time arise or be et up because
of damages to property or personal injury received by reason of; or in the course of
performing work which may be occasioned by a willful or negligent act or omissions of the
Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant.
16. .Waiver. No failure onthe part of either party to exercise any right or remedy hereunder shall
operate as a waiver of any other right or remedy that party may have hereunder; nor does
waiver of a breach or default under this Agreement constitute a continuing waiver of a
subsequent breach of the same or any other provision of this Agreement.
T7. Governing_Law. This Agreement, regardless of where executed, shall be governed by and
construed to the laws of the State of California. Venue for any action regarding this
Agreement shall be in the Superior Court of the County of Santa Clara.
Revised: 3/19/02 Page 6
N:\MGRUHaruyamaU'rojects\cable television.renewal\millervaneatonrenewalcontract.wpd
~ ~.
` .. ;, .,~
18. Termination of Agreement. The Town and the Consultant shall have the right ~to terminate
this agreement with or without cause by giving not less than fifteen (15) days written notice
of termination.. In the event: of termination, :the Consultant shall. deliver to the Town all
. plans, files, documents, .reports, performed to date by the Consultant. In the event of such
termination, Town shall pay Consultant an amount that bears the same ratio to the maximum
contract price as the work delivered to the Town bears to completed services contemplated
under this .Agreement, unless such termination is made for cause, in which event,
compensation, if any, shall be adjusted in light of the particular facts and .circumstances
involved in-such termination.
19. Amendment. No modification, waiver, mutual termination, or amendment ofthis Agreement
is effective unless made iri writing and signed by the Town and the Consultant.
20. Dis utes. In any dispute over any aspect of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, including cosfs of appeal.
21. :Entire Agreement. This Agreement constitutes the complete and exclusive statement of the
Agreement between the Town and Consultant. No terms, conditions, understandings or
.agreements purporting to modify or vary this .Agreement, unless hereafter made in writing
and signed by the party to be bound, shall be binding on either party.
IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement as ofthe
date indicated on page one (1).
T o FLos Gatos.by:
.Debra J. igon Town Manager
Approved as to Form:
O .Korb, Town Attorney
Consultant by:
~7~.
Signature
w~~~ ; qM L. L o ,,,i~/~ y~
Print Name
Attorney, Miller & Van Eaton, L.L.P
Title
ATTEST:
Clerk of the Town of Los Gatos,
:Los Gatos, California ,.~
a ,1 j
,fir- ~ ~ ~:~.r~~ - ~,
M 'an V: C~ ' ove, Town Clerk
Revised::i't9/02 Page 7
N:~IvIGRUHaruyama\cable television rene~val~nillervaneatonrenewalcontract.wpd