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HomeMy WebLinkAboutC03-041 River Oaks Communications Corporationc o 3-c~1- ~a AGREEMENT REGARDING PROVISION OF CONSULTING SERVICES FOR EAGLE COUNTY This Agreement Regarding Provision of Consulting Services for Eagle County ("Agreement") dated this 4th day of February, 2003, is between the County of Eagle, State of Colorado, a body corporate and politic, by and through its Board of County Commissioners ("County"), and River Oaks Communications Corporation, a Colorado corporation ("Consultant"). A. County wants to develop cable television franchise agreements for Comcast (and its affiliates) and Roper (and its affiliates). The County desires, in connection therewith, consulting services for the drafting, preparation, negotiation and finalization of these documents. B. Consultant is a corporation authorized to do business in the State of Colorado. C. Consultant has given the County a proposal for performing the Services (defined below) and represented that it has the expertise and personnel necessary to properly and timely perform the Services. D. Consultant and County intend by this Agreement to set forth the scope of the responsibilities of the Consultant in connection with the Services and related terms and conditions to govern the relationship between Consultant and County in connection with the Services. Therefore, based upon the representations by Consultant set forth in the foregoing recitals, for good and valuable consideration, including the promises set forth herein, the parties agree to the following: 1. ~cnne of the ~ervicec; The Services are described in Exhibit "A" attached hereto and incorporated herein by this reference. The parties hereto recognize that the scope of the Services may change. When the Consultant believes that the scope of the Services has been changed, or by reason of a decision of the County it will be required to redo properly completed Services, the Consultant shall immediately advise the County of such belief and shall also provide a statement of the maximum additional charges for such services. Consultant shall not be entitled to be paid for any such additional services unless and until County agrees in writing that the scope of the Services has changed and accepts the statement of the maximum additional charges. • • 2. Cnncultant'c Prnfescional T.evel of Care: Consultant shall be responsible for the completeness and accuracy of the Services, including all supporting data and other documents prepared or compiled in performance of the Services, and shall correct, at its sole expense, all significant errors and omissions therein. The fact that the County has accepted or approved Consultant's Services shall not relieve Consultant of any of its responsibilities. Consultant shall perform the Services in a skillful, professional and competent manner and in accordance with the highest standards of care, skill and diligence applicable to consultants with respect to similar services. Consultant shall not be responsible for the content or accuracy of any reports or studies provided by the County or its representatives. 3. Time of Performance and Termination; a. Consultant shall commence the Services not later than within five (5) business days after the date of this Agreement. Consultant shall complete the Services by September 17, 2003. b. County may terminate this Agreement, in whole or in part, for its convenience upon providing notice to the Consultant. Upon such a termination, the County shall be liable only for Services satisfactorily completed prior to the notice and for unavoidable expenses directly incurred for performance of those parts of the Services which have not been satisfactorily completed. At its sole option, the County may require that the Consultant complete particular portions of the Services on a time and reimbursable expenses basis consistent with paragraph 4 hereof. Upon termination the Consultant shall deliver to County all data and other documents entirely or partially completed, together with all material supplied to the Consultant by the County. Payment will be due within thirty (30) days after the Consultant has delivered the last of the partially completed documents, together with any records that may be required to determine the amount due. 4. CnmT ensatinn and Payment: In consideration of its performance of the Services, County shall pay Consultant for its time and reimbursable expenses, provided the total fees and expenses for the Services shall not exceed $74,500.00. Time will be paid in accordance with the Rate Schedule included in Exhibit "A", attached hereto and incorporated herein by this reference. This represents approximately 250 hours regarding Comcast and 125 hours regarding Roper and approximately $400/month in expenses in connection with the franchise process. Where necessary, the total hourly time of 375 hours can be apportioned as necessary by Consultant in working with respect to the two cable operators. a. Consultant shall submit to the County progress invoices regarding one or more of the tasks identified in "Scope of Services". Such invoices shall describe the Services 2 performed and reimbursable expenses incurred. Upon request, the Consultant shall provide the County with such other supporting information as the County may request. b. Consultant shall maintain comprehensive, complete and accurate records and accounts of its performance relating to this Agreement for a period of three (3) years following final payment hereunder, which period shall be extended at County's reasonable request. County shall have the right within such period to inspect such books, records and documents upon demand, with reasonable notice and at a reasonable time, for the purpose of determining, in accordance with acceptable accounting and auditing standards, compliance with the requirements of this Agreement and the law. 5. P~ject Management; Tom Duchen, President of Consultant, shall be the Project Manager for the Services. The Assistant County Attorney (or designee) shall be the County's Client Representative responsible for this Agreement. All correspondence between the parties hereto regarding this project shall be between and among the project managers. Either party may designate a different project manager by notice in writing. 6. _Tndependent C',nntract~r: It is expressly acknowledged and understood by the parties hereto that nothing contained in this Agreement shall result in, or be construed as establishing, an employment relationship. Consultant shall be, and shall perform as, an independent contractor. No agent, subcontractor, employee, or servant of Consultant shall be, or shall be deemed to be, the employee, agent or servant of County. Consultant shall be solely and entirely responsible for its acts and for the acts of Consultant's agents, employees, servants and subcontractors during the performance of this Agreement. 7. Personnel: Consultant understands and hereby acknowledges that County is relying primarily upon the expertise and professional abilities of the officers of Consultant and its approved subcontractors. This Agreement is conditioned upon the continuing direct involvement of these officers of Consultant in the Services. Consultant may not subcontract or delegate any part of the Services or substitute subcontractors without County's written consent, which consent County may exercise in its sole discretion. In the event the officers of Consultant are unable to remain involved in the Services, Consultant shall immediately notify County and County shall have the option to terminate this Agreement. 8. Ownership of documents: All documents (including electronic files) which are obtained during or prepared in the performance of the Services shall remain the property of the County and are to be delivered to County before final payment is made to Consultant or upon earlier termination of this Agreement. 9. Nn Assignment: The parties to this Agreement recognize that the services to be provided pursuant to this Agreement are professional in nature and that in entering into this Agreement County is relying upon the professional services and reputation of Consultant and its approved subcontractors. Therefore, neither Consultant nor its subcontractors may assign its 3 ~ ~ interest in the Agreement or in their subcontract, including the assignment of any rights or delegation of any obligations provided therein, without the prior written consent of County, which consent County may withhold in its sole discretion. Except as so provided, this Agreement shall be binding on and inure to the benefit of the parties hereto, and their respective successors and assigns, and shall not be deemed to be for the benefit of or enforceable by any third party. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Agreement. 10. Tnci range: At all times during the term of this Agreement, Consultant shall maintain the following insurance: rofessional Liability $1,000,000 minimum orkers' Com ensation Statuto limits All insurance required hereby shall be issued by an insurance company or companies authorized to do business in the State of Colorado. Consultant shall deliver certificates of required insurance to the County within fifteen (15) calendar days of execution of this Agreement by the Board. Before permitting any subcontractor approved by County to perform any Services under this Agreement, Consultant shall either (1) require each of his subcontractors to procure and maintain, during the life of his subcontracts, insurance which meets the requirements for the Consultant herein, or (2) provide for insurance of the subcontractor in Consultant's own policies in the amounts required hereinabove. 11. Tndemnificatinn: Consultant shall indemnify County for, and hold and defend the County and its officials, boards, officers and employees, harmless from, all costs, claims and expenses, including reasonable attorney's fees, arising from claims of any nature whatsoever made by any person in connection with the negligent acts, omissions or representations by Consultant in the performance of this Agreement. This indemnification shall not apply to claims by third parties against the County to the extent that the County is liable to such third party for such claim without regard to the involvement of the Consultant. 12. Nnticec: Any notice and all written communications required under this Agreement shall be given in writing by personal delivery, FAX or mail to the other party at the following addresses: 4 r 1 Consultant: River Oaks Communications Corporation The Mining Exchange Building 8 South Nevada -Suite 515 Colorado Springs, CO 80903 tel. 719-477-6850 fax 719-477-0818 County: County Attorney's Office P.O. Box 850 Eagle, CO 81631 tel. 970-328-8685 fax 970-328-8699 Notices shall be deemed given on the date of delivery; on the date a FAX is transmitted and confirmed received or, if transmitted after normal business hours, on the next business day after transmission, provided that a paper copy is mailed the same date; or three days after the date of deposit, first class postage prepaid, in an official depositary of the U.S. Postal Service. 14. Cable Television CnnsLltin~ Services: Consultant shall provide cable television consulting services for the County pursuant to this Agreement. The County Attorney's Office shall perform all legal work in connection with this project. 15. Miscellanenns; a. Consultant shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement on the basis of race, color, religion, national origin, sex, ancestry, physical handicap, sexual orientation, age, political affiliation or family responsibility. Consultant shall require all subcontractors to agree to the provisions of this subparagraph. b. The making, execution and delivery of this Agreement by the parties hereto has not been induced by any prior or contemporaneous representation, statement, warranty or agreement as to any matter other than those herein expressed. This Agreement embodies the entire understanding and agreement of the parties, and there are no further or other agreements or understandings, written or oral, in effect between them relating to the subject matter hereof. This Agreement may not be amended, including by any modification of, deletion from or addition to the scope of the Services, except by a written document of equal formality executed by both parties hereto. c. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Colorado, without reference to choice of law rules. The parties agree that venue in any action to enforce or interpret this Agreement shall be in the District Court in the 5th District for the State of Colorado. 5 • d. This Agreement does not and shall not be deemed to confer upon or grant to any third party any right enforceable at law or equity arising out of any term, covenant, or condition herein or the breach thereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: ~r,o-~~c~, `~ ~"~ ~; `a. _~ ~' ~~ ,.. ~~' _n .~ COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS Clerk to the board of County Commissioners By: Chai an RIVER OAKS COMMUNICATIONS CORPORATION By: ~ Thomas F. Duchen, President 6 EXHIBIT "A ~ ~ SCOPE OF SERVICES This Scope of Services is agreed to by the County and the Consultant, and the Consultant will perform the following: 1. Develop a timeline for the cable television franchise process. 2. Develop a list of goals/objectives to be addressed in the franchise. 3. Provide information to the County regarding what the current cable operators have agreed to in other comparable franchises. 4. Provide other franchise information to the County from comparable size communities with other cable companies. 5. Meet with the County to discuss strategic alternatives. 6. Hold preliminary meetings with each cable operator to discuss franchise objectives. 7. Begin addressing Public, Educational and Governmental ("PEG") Access issues. 8. Draft a list of issues to be addressed in the cable franchise. 9. Assist in analysis regarding issues identified by the County. 10. Begin drafting cable franchise. 11. Circulate draft franchise for internal review only. 12. Send draft franchise to the cable operators. 13. Assess the possibility of PEG Access contributions from the cable operators. 14. Participate in franchise negotiating sessions with each cable operator. 15. Review/edit/revise draft franchises. 16. Hold follow-up meetings with the County. 17. Identify other cable franchise matters for consideration by the County. 18. Finalize cable franchises. 19. Make presentations to the Board of County Commissioners upon request. A-1 The work will be performed on an hourly basis plus expenses. Our key personnel and their hourly rates are as follows: Tom Duchen, President - $190/hour (1 /2 the hourly rate for travel) Bob Duchen, Vice President - $190/hour (1/2 the hourly rate for travel) Subcontractor: Carson Hamlin -Government Access Work - $100/hour In consideration of the work to be performed pursuant to the Scope of Services, the County agrees to pay Consultant on a time and reimbursable cost basis according to the following schedule: Hourly Billing Rates: See Above Reimbursable Direct Costs: - Travel (air fare, car rental, hotel, mileage, meals, etc.) - Federal Express -Postage - Long Distance Telephone Charges - Clerical - Faxes - Copies A-2