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HomeMy WebLinkAboutIT15-241 - Original - Kissinger & Fellman, P.C. - Legal Consultant for Master Cable Franchise Ordinance - 07/02/2015 Records IVY ern KOT Document WASNINOTON j CONTRACT COVER SHEET This is to be completed by the Contract Manager prior to submission to City Clerks Office. All portions are to be completed. If you have questions, please contact City Clerk's Office. Vendor Name: Kissinger & Fellman Vendor Number: ID Edwards Number Contract Number: ;'r This is assigned by City Clerk's Office Project Name: Consultant for Cable Franchise Ordinaince Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ® Contract ❑ Other: Contract Effective Date: 7/2/15 Termination Date: Passage or Ordinance Contract Renewal Notice (Days): Notice Number of days required notice for termination or renewal or amendment Contract Manager: Dea Drake Department: IT Contract Amount: $20,000 Approval Authority: (CIRCLE ONE) Department Director Mayor City Council Detail: (i.e. address, location, parcel number, tax id, etc.): As of: 08/27/14 REQUEST FOR MAYOR'S SIGNATURE ® T Print on Cherry-Colored Paper Kf�N Routing Information (ALL REQUESTS MUST FIRST BE ROUTED THROUGH THE LAW DEPARTMENT), Approved by Director 'I_I_� Originator: Kim Komoto Phone (Originator): 5788 Date Sent:7/uf5 Date Required:ASAP Return Signed Document to: Kim Konnotio Contract Termination Date:Time ofpssaeofordinance VENDOR NAME: - i Date Finance Notified: t „ (Only required on contractsWOWAA 10 000 and over or on any Grant DATE OF COUNCIL APPROVAL. Date Risk Manager Notified: 01 n/a (Required on Non-City Standard Contracts/Agree ents Has this Document been Specifically ccount Number: Authorized in the Budget? YES ® NO © IV J 2001i` 06 , H(qo • )TYV Sus - Cc e Brief Explanation of Document: Professional Service Contract for services related to work with City on the Master Cable Franchise/Ordinance. All Contracts Must Be Routed Through The Law Department" (Thisearea to bec?mpleteddy the Law Department) , - Received: ;K r Approval of Law Dept.: Law Dept. Comments: ` x Date Forwarded to Mayor: Shaded Areas To Be Completed By Administration Staff Received: Recommendations and Comments: Disposition: Date Returned: � G:ICrvHlPorme,Bucwnenl rocessinBAsegvesl los Mayw551gnaNre.tlacz KENT PROFESSIONAL SERVICES AGREEMENT between the City of Kent and KISSINGER & FELLMAN, P.C. THIS AGREEMENT is made between the City of Kent, a Washington municipal corporation (hereinafter the "City"), and Kissinger & Fellman, P.C. organized under the laws of the State of Colorado, located and doing business at 3773 Cherry Creek North Drive, Suite 900, Denver, Colorado 80209 (hereinafter the "Contractor"). I. DESCRIPTION OF WORK. Contractor shall perform the following services for the City: See Exhibit A attached hereto -- SCOPE OF WORK Contractor further represents that the services furnished under this Agreement will be performed in accordance with generally accepted professional practices within the Puget Sound region in effect at the time those services are performed. II. TIME OF COMPLETION. The parties agree that work will begin on the tasks described in Section I above immediately upon the effective date of this Agreement, and Contractor shall complete the work by at time of ordinance passage by City Council for Part I of the services and upon adoption of the new franchise agreement for Part II of the services. III. COMPENSATION. The City shall pay Contractor a total amount not to exceed the amount set forth in the Scope of Work for the services described in this Agreement. The Contractor shall invoice the City monthly based on time and materials incurred during the preceding month. The hourly rates charged for Contractor's services shall be as delineated in the attached and Incorporated Exhibit A. All hourly rates charged shall remain locked at the negotiated rates throughout the term of this Agreement. IV. INDEPENDENT CONTRACTOR. The parties intend that an Independent Contractor- Employer Relationship will be created by this Agreement. By their execution of this Agreement, and in accordance with Ch. 51.08 RCW, the parties make the following representations: A. The Contractor has the ability to control and direct the performance and details of its work, the City being interested only in the results obtained under this Agreement. B. The Contractor maintains and pays for its own place of business from which Contractor's services under this Agreement will be performed. C. The Contractor has an established and independent business that is eligible for a business deduction for federal income tax purposes that existed before the City retained Contractor's services, or the Contractor is engaged in an independently established trade, occupation, profession, or business of the same nature as that Involved under this Agreement. D. The Contractor is responsible for filing as they become due all necessary tax documents with appropriate federal and state agencies, 'including the Internal Revenue Service and the state Department of Revenue, as may be applicable to the Contractor's business. PROFESSIONAL SERVICES AGREEMENT - 1 (Over$20,000) E. The Contractor has registered its business and established an account with the state Department of Revenue and other state agencies as may be required by Contractor's business, and has obtained any required Unified Business Identifier (UBI) number from the State of Washington. F. The Contractor maintains a set of books dedicated to the expenses and earnings of its business. V. TERMINATION. Either party may terminate this Agreement, with or without cause, upon providing the other party seven (7) calendar days written notice at its address set forth on the signature block of this Agreement. VI. DISCRIMINATION. In the hiring of employees for the performance of work under this Agreement or any subcontract, the Contractor, its subcontractors, or any person acting on behalf of the Contractor or subcontractor shall not discriminate against any person who is qualified and available to perform the work to which the employment relates as provided for by the City of Kent's Equal Employment Opportunity Policy. Contractor shall execute the attached City of Kent Equal Employment Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract work, file the attached Compliance Statement. VII. INDEMNIFICATION. Contractor shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or In connection with the Contractor's performance of this Agreement, except for that portion of the injuries and damages caused by the City's negligence. The City's inspection or acceptance of any of Contractor's work when completed shall not be grounds to avoid any of these covenants of indemnification. The provisions of this section shall survive the expiration or termination of this Agreement. In the event Contractor refuses tender of defense in any suit or any claim, if that tender was made pursuant to this indemnification clause, and if that refusal is subsequently determined by a court having jurisdiction (or other agreed tribunal) to have been a wrongful refusal on the Contractor's part, then Contractor shall pay all the City's costs for defense, including all reasonable expert witness fees and reasonable attorneys' fees, plus the City's legal costs and fees Incurred because there was a wrongful refusal on the Contractor's part. VIII. INSURANCE. The Contractor shall procure and maintain for the duration of the Agreement, insurance of the types and in the amounts described in Exhibit B attached and Incorporated by this reference. IX. CONTRACTOR'S WORK AND RISK. The Contractor agrees to comply with all federal, state, and municipal laws, rules, and regulations that are now effective or in the future become applicable to Contractor's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of those services. All work shall be done at Contractor's own risk, and Contractor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. X. MISCELLANEOUS PROVISIONS. A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City requires its contractors and consultants to use recycled and recyclable products whenever practicable. A price preference may be available for any designated recycled product. B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. PROFESSIONAL SERVICES AGREEMENT - 2I�' (Over$20,000) C. Resolution of Disputes and Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. If the parties are unable to settle any dispute, difference or claim arising from the parties' performance of this Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by filing suit exclusively under the venue, rules and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's right to indemnification under Section VII of this Agreement. D. Written Notice. All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. E. Assignment. Any assignment of this Agreement by either party without the written consent of the non-assigning party shall be void. F. Modification. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Contractor. G. Entire Agreement. The written provisions and terms of this Agreement, together with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City, and such statements shall not be effective or be construed as entering into or forming a part of or altering In any manner this Agreement. Should any language In any of the exhibits to this Agreement conflict with any language contained in this Agreement, the terms of this Agreement shall prevail. H. Public Records Act. The Contractor acknowledges that the City is a public agency subject to the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington. As such, the Contractor agrees to cooperate fully with the City in satisfying the City's duties and obligations under the Public Records Act. I. City Business License Required. Prior to commencing the tasks described in Section I, Contractor agrees to provide proof of a current city of Kent business license pursuant to Chapter 5.01 of the Kent City Code, PROFESSIONAL SERVICES AGREEMENT - 3 (Over$20,000) j J. Counterparts and Signatures by Fax or Email. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. Further, upon executing this Agreement, either party may deliver the signature page to the other by fax or email and that signature shall have the same force and effect as if the Agreement bearing the original signature was received In person. IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. CONTRACTOR: CITY OF KENT: (signature) i' (signature) Print Name: Kenneth S. Fellman lent Nam ; a$uzette Cooke Its: Vice President Its Mayor (title) - DATE: 7-2-15 DATE: 1' i'�/ NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: CONTRACTOR: CITY OF KENT: Kenneth S. Fellman Dea Drake, Multimedia Manager Kissinger & Fellman, P.C. City of Kent 3773 Cherry Creek N. Drive, Suite 900 220 Fourth Avenue South Denver, Colorado 80209 Kent, WA 98032 303-320-6100 (telephone) (253) 856-4646 (telephone) 303-327-8601 (facsimile) (253) 856-4700 (facsimile) j AP ED AS TO FORM: -j k Kent,,L Department I , II PROFESSIONAL SERVICES AGREEMENT - 4 (Over$20,000) ]. Counterparts and Signatures by Fax or Email. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. Further, upon executing this Agreement, either party may deliver the signature page to the other by fax or email and that signature shall have the same force and effect as if the Agreement bearing the original signature was received in person. IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. CONTRACTOR: KISSINGER & FELLMAN, P.C. CITY OF KENT: _ (signature) (signature) Print Name: Kenneth S. Fellman Print Name: Suzette Cooke Its: Vice President Its Mayor (title) DATE: 7-2-15 DATE: NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: CONTRACTOR: CITY OF KENT: Kenneth S. Fellman [Insert Name of City Rep. to Receive Notice] Kissinger & Fellman, P.C. City of Kent 3773 Cherry Creek N. Drive, Suite 900 220 Fourth Avenue South Denver, Colorado 80209 Kent, WA 98032 303-320-6100 (telephone) 303-327-8601 (facsimile) (253) [Insert Phone Number] (telephone) 253 [Insert Fax Number] facsimile APPROVED AS TO FORM: Kent Law Department I, PROFESSIONAL SERVICES AGREEMENT- 4 (Over$20,000) DECLARATION CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY The City of Kent is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors and suppliers who perform work with relation to this Agreement shall comply with the regulations of the City's equal employment opportunity policies. The following questions specifically identify the requirements the City deems necessary for any contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative response is required on all of the following questions for this Agreement to be valid and binding. If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the directives outlines, it will be considered a breach of contract and it will be at the City's sole determination regarding suspension or termination for all or part of the Agreement; The questions are as follows: 1. I have read the attached City of Kent administrative policy number 1.2. 2. During the time of this Agreement I will not discriminate in employment on the basis of sex, race, color, national origin, age, or the presence of all sensory, mental or physical disability. 3. During the time of this Agreement the prime contractor will provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 4. During the time of the Agreement I, the prime contractor, will actively consider hiring and promotion of women and minorities. 5. Before acceptance of this Agreement, an adherence statement will be signed by me, the Prime Contractor, that the Prime Contractor complied with the requirements as set forth above. I By signing below, I agree to fulfill the five requirements referenced above. fS Dated this 2nd day of Jty} 20 S ` f By. i For: Kissinger & Fellman P.C. Title: Vice President Date: 7-2-15 EEO COMPLIANCE DOCUMENTS - 1 I CITY OF KENT ADMINISTRATIVE POLICY NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998 SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996 CONTRACTORS APPROVED BY Jim White, Mayor POLICY: Equal employment opportunity requirements for the City of Kent will conform to federal and state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee equal employment opportunity within their organization and, if holding Agreements with the City amounting to $10,000 or more within any given year, must,take the following affirmative steps: 1. Provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 2. Actively consider for promotion and advancement available minorities and women. Any contractor, subcontractor, consultant or supplier who willfully disregards the City's nondiscrimination and equal opportunity requirements shall be considered in breach of contract and subject to suspension or termination for all or part of the Agreement. Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public Works Departments to assume the following duties for their respective departments. 1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these regulations are familiar with the regulations and the City's equal employment opportunity policy. 2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines. EEO COMPLIANCE DOCUMENTS - 2 CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE STATEMENT This form shall be filled out AFTER COMPLETION of this project by the Contractor awarded the Agreement. I, the undersigned, a duly represented agent of Company, hereby acknowledge and declare that the before-mentioned company was the prime contractor for the Agreement known as that was entered into on the (date), between the firm I represent and the City of Kent. I declare that I complied fully with all of the requirements and obligations as outlined in the City of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal Employment Opportunity Policy that was part of the before-mentioned Agreement. Dated this day of 20 By: For: Title: Date: EEO COMPLIANCE DOCUMENTS - 3 EXHIBIT A SCOPE OF WORK Item 1: Consult and assist on the City of Kent Master Cable Franchise/Ordinance Scope of the Project: Work with the City of Kent Attorney's Office and the Department of Information Technology to pare down the current draft ordinance to key criteria that apply to all cable providers. Recommend removal of items that are better negotiated in franchises. Advise city on separating allowable (local/state/federal)police powers from franchise authority. Review and make recommendations on the proposed Customer Service Standards, including penalties and appeal processes. Review final document for legality and clarity. Submit proposed ordinance to cable operators prior to Council adoption, discuss or negotiate as appropriate, and revise as necessary. - Kickoff conference call to set work plan I hour - Review applicable ordinance provisions and draft comments, 3 hours questions and recommendations for staff discussion regarding provisions to retain/include in code versus provisions to be negotiated in franchise - Review proposed Customer Service Standards and draft 2.5 hours recommendations for staff discussion - Conference calls with staff to discuss ordinance and Customer 4.5 hours Service Standards issues and recommended revisions; drafting of revised ordinance and Customer Service Standards provisions - Preparation with staff and in-person meeting with industry 7 hours representatives to discuss proposed changes in ordinance and Customer Service Standards; follow up meeting with staff to discuss further ordinance and Customer Service Standards revisions - Offsite work on revisions; conference calls with staff to review 3 hours - Possible second meeting with industry to review ordinance/Customer 7 hours Service Standards, and attempt to narrow any outstanding issues - Finalize suggested ordinance and Customer Service Standards 3 hours changes and preparation of materials to provide and/or present at City Council - Miscellaneous project related issues that may arise 7 hours TOTAL HOURS: 38 hours @ $290/hr=$11,020 Page 2 Item 2: City of Kent Comcast Franchise Scope of the Project: Assist the City of Kent Attorney's Office and the Department of Information Technology with identifying the 4-6 key issues for the City of Kent. Prepare a draft Cable Franchise ordinance (possibly from an already existing franchise in another jurisdiction, or from the original draft franchise that was begun in approximately 2012 if desired). Act as the head negotiator with Comcast. - Work with staff to identify key issues for franchise negotiations 3.5 hours - Prepare draft franchise agreement; internal communications 5 hours with staff regarding any issues with the draft; finalize the document for commencing negotiations - Attend negotiations sessions with staff and Comcast(anticipate 15 hours 2-3 in person meetings and 2-3 meetings via conference call; each meeting, including pre- and post-meeting discussion with staff estimated at 3-4 hours) - Communications (preparation of memoranda, and appearance 3 hours by conference call or Skype if necessary)with City Council to update on the progress of negotiations - Miscellaneous franchise negotiation issues that may arise 4 hours TOTAL HOURS: 30.5 hours @$290/hr=$8,845.00 NOTE: - Anticipate 2-3 on site meetings @ approximately $750 in costs (airfare, hotel, car, meals) _$1,500—2,250 KISSINGER&FRLLN1AN P.C.•3773 Cherry Creek North Drive,Suite 900,Denver,CO 80209•(303)320-6100•FAX:(303)327-860t Y EXHIBIT B INSURANCE REQUIREMENTS FOR PROFESSIONAL SERVICES AGREEMENT Insurance The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, their agents, representatives, employees or subcontractors. A. Minimum Scope of Insurance Contractor shall obtain insurance of the types described below: 1. Commercial General Liabilitv insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. The City shall be named as an insured under the Contractor's Commercial General Liability insurance policy with respect to the work performed for the City using ISO additional insured endorsement CG 20 10 11 85 or a substitute endorsement providing equivalent coverage. 2. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 3. Professional Liability insurance appropriate to the Contractor's profession. B. Minimum Amounts of Insurance Contractor shall maintain the following insurance limits: 1. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate and a $1,000,000 products-completed operations aggregate limit. 2. Professional Liability insurance shall be written with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Commercial General Liability insurance: 1. The Contractor's insurance coverage shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. Z. The Contractor's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. 3. The City of Kent shall be named as an additional insured on all policies (except Professional Liability) as respects work performed by or on behalf of the Contractor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all required insurance policies. The Contractor's Commercial General Liability insurance shall also contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than ANII E. Verification of Coverage Contractor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. F. Subcontractors Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the same insurance requirements as stated herein for the Contractor. i it ............. ... ......1 1. t7 I PO N S H 0 R E IRCINSHORE INDEMNITY, INC, (A Stock Company) Mailing Address: PO Box 3407 New York, NY 10008 (877) IRON-411 Policy#:.11_10222403 Expiring Policy M JU0222402 THIS IS ISSUED BYTHIE INSURANCE COMPANY SELECTED ABOVE LAWYERS PROFESSIONAL LIABILITY POLICY WITH CLAIM EXPENSES INCLUDED IN THE LIMIT OF LIABILITY DECLARATIONS This is a Claims Made and Reported Policy,please read it carefully. Amounts incurred as Claim Expenses shall reduce the limit of liability available to payludgments or settlements and shall also be applied against the deductible. ITEM 1-NAMED INSURED AND PRINCIPAL ADDRESS: Item 2.POLICY PERIOD Kissinger&Fellman,PC (a)inception Date; 10/07/14 Attorneys at Law 3773 Cherry Creek North Drive,Suite 900 (h)Expiration Date: 10/07/15 Denver,CO 80209 ITEM 3.LIMIT OF LIABILITY(inclusive of Claim Expenses) at 12:01 a,m,both dates at the Principal 3,000,000 Each Claim 3,000,000 aggregate limit of liabilityfor all Claims made or deemed made during Policy Period ITEM 4,DEDUCTIBLE: $15,000 Each Claim N/A Aggregate ITEM S.PREMIUM $11,620,00 ITEM 6.RETROACTIVE DATE: FULL ITEM 7.FORMS AND ENDORSEMENTS ATTACHED AT ISSUANCE: LPLCOV.002(05109)LPL.DEC002(05/09) LPLENDABS(0709)LPLEND.035(0409)LPL.END.101(1013)IRON.PN.001(0513) LPL.DEC.002(05/09) Page 1 of 2 Ili ITEM 8, INSURER ADDRESS; c/o Ironshore Insurance Services,U-C One State Street Plaza floor New York, NY 10004 Ali ITEM 9.BROKER JLT Facilities,Inc. ADDRESS: 22 Century Hill Dr,Ste,3,09 Latham NY 12110-1423 LICENSE NUMBER: BR-1080326 ITEM 10. SURPLUS LINES BROKER: ADDRESS: LICENSE NUMBER: THESE DECLARATIONS,TOGETHER WITH THE COMPLETED AND SIGNED APPLICATION,FOR THIS POLECYAND THE FOLLOWED POLICY,INCLUDING INFORMATION FURNISHED IN CONNECTION THEREWITH WHETHER DIRECTLY OR THROUGH PUBLIC FILING,AND THE POLICY FORM ATTACHED HERETO,CONSTITUTE THE INSURANCE POLICY, Date: October7,2014 MO/DAY/YR. Authorized Representative till LPL,DEC,002(05/09) Page.2 of 2