Charter Communications MOU Cable Franchise Implementation w/Gilroy, Hollister & San Juan BautistaMEMORANDUM OF UNDERSTANDING
CABLE TV FRANCHISE IMPLEMENTATION
THIS MEMORANDUM OF UNDERSTANDING is made this 17th day of April , 2000,
between the CITY OF GILROY; a municipal corporation, ( "GILROY"); the CITY OF HOLLISTER; a
municipal corporation ( "HOLLISTER "); and the CITY OF SAN JUAN BAUTISTA; a municipal
corporation ( "SAN JUAN BAUTISTA ").
RECITALS
The following recitals are a substantive part of this MEMORANDUM OF UNDERSTANDING:
1. This MEMORANDUM OF UNDERSTANDING is entered into pursuant to Gilroy City
Council approval on April 17, 2000; Hollister City Council approval on May 1, 2000 ; San Juan
Bautista City Council Approval on April 18, 2000 .
2. GILROY, HOLLISTER, AND SAN JUAN BAUTISTA ( "CITIES "), all currentyy
cable television ( "CATV ") franchise agreements with Charter Communciations LLC.
3. CITIES wish to work together in order to facilitate a more concerted and cohesive
approach to the CATV franchise implementation process and ensure that CATV customers within
CITIES are receiving the appropriate level of service from Charter Communications LLC.
i. CITIES intend to retain the professional set vices of a qualified consultant, selected with
the ap�r - -H of each CITY, to assist in implementing the +e-ms of each CI-Y'S franchise agreement (see
EXF1lBI ';A ")
5. The purpose of the Agreement is to secure the commitment of each CITY to participate in
the implementation of the CATV franchise agreement.
MEMORANDUM OF UNDERSTANDING
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
Term of Memorandum of Understanding. This Memorandum of Understanding shall cover
the period of ,4Pr�l /7, zoo& through September 30, 2001. It may be renewed upon mutual written
agreement for an additional period not to exceed one year.
2. Scope of Work. CITIES will conduct a joint CATV franchise implementation process that will
include: Oversee contract compliance matters associated with the Cable Franchise Agreement,
oversee the Transfer of Ownership process from Charter to AT &T, oversee a franchise fee
review and; assist in the "start-up" of the Community Media Access Partners (CMAP).
3. Proiect Coordination. Gilroy will serve as the project leader and contract administrator for this
CATV franchise implementation process. Work tasks relating to the CATV implementation
process shall be shared equitable between the CITIES. The CITIES shall meet regularly to
decide upon the work needed to conduct the franchising implementation process and to review its
progress.
All decisions relating to-the conduct of the CATV franchising implementation process shall be
done through consensus of the CITIES.
4. Cost Apportionment. CITIES shall provide financial support in an amount not to exceed
$100.000 for the CATV franchise implementation effort and shall pay their proportional share for
the costs of undertaking and maintaining the refranchising process as follows:
City of Gilroy 56% of remaining total
City of Hollister 44% of remaining total
San Juan Bautista 55.000 (lump sum)
Any financial support in excess of the above specified amount shall be approved in writing by the
CITIES in advance, and shall be allocated among the jurisdictions based on the formula
identified in this sectior:.
5. Consultant. On behalf of the Ci "IES, the services of The Buske Group will be secured to
conduct the CATV franchise implementation process. Attachment A. the Consultant Agreement,
describes the contract services to be performed by the Consultant, and the cost and anticipated
schedule for the project. The project will be initiated following execution of this Memorandum
of Understanding by the CITIES, and the subsequent execution of the Consultant Contract and
Issuance of 'a : ,,,tice to proceed. I S approval of the �cooe of work. and schedule is
jndicated )v Yecution of his Niem -andum of T�nde-stan
6. Contract Administration. Gilro, will administer the Consultant Contract on behalf of the
CITIES. The Consultant Contract vil be administered according to the general requirements
and standards which apply to other similar projects administered by Gilroy. Gilroy staff will
award the contract, manage the project, including payment of the Consultant and serve as the
liaison with the Consultant. Gilroy staff will coordinate project review and decision- making with
CITIES.
The project manager for Gilroy shall be the Consultant's primary contact and will assist the
Consultant in functions involving coordination with CITIES. Assistance from staff of the
participation jurisdictions will be provided upon request of the project manager.
CITIES shall be copied with any and all correspondence or documentation of any type between
Consultant and Gilroy. Consent shall be obtained from CITIES by Gilroy for any proposed
deviations from the contract by the Consultant.
7. Payment. Gilroy shall bill Hollister monthly, and San Juan Bautista will pay a one time lump
sum. Invoices shall reflect the CONSULTANT's monthly invoices, and CITIES shall be billed
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based on their proportional share of their financial support of the project. CITIES shall endeavor
to pay their respective amounts due within thirty (30) days from receipt of billing.
8. Non - Liability of Officials and Employees. _No official or employee of any CITY under this
Memorandum of Understanding shall be personally liable to any other entity or person in the
event of any default or breach by CITIES.
9. Non - Discrimination. CITIES covenant that there shall be no discrimination against any person
or group due to race, color, creed, religion, sex, marital status, age, handicap, national origin, or
ancestry, in any activity pursuant to this Memorandum of Understanding.
10. Compliance with Law. CITIES shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state, and local government in any activity pursuant to this
Memorandum of Understanding.
11. Conflict of Interest and Reporting. CITIES shall at all times avoid conflict of interest or
appearances of conflict of interest in performance of this Memorandum of Understanding. No
CITY shall act independently outside the stop <° of This Memorandum of Understanding kith
Charter Communications LLC or the CONSUL.TA NT.
12. Notices. All notices shall be personally delivered or mailed to the below listed addresses, or to
such other addresses as may be designated by written notice. These addresses shall be L sea for .
delivery of service of process.
.',ddress of GILROY is as follows:
;ty Administrator
Rosanna Street
Gilroy, CA 95020
b. Address of HOLLISTER is as follows:
City Manager
375 Fifth Street
Hollister, CA 95023
C. Address of SAN JUAN BAUTISTA is as follows:
City Manager
P.O. Box 1086
San Juan Bautista, CA 95045
13. Termination. This memorandum of understanding may be terminated upon providing a thirty
(30) day written notice from one City to other CITIES. In the event of termination, the party
terminating shall be responsible for its share of any and all costs incurred for work done up to the
time in which the agreement is terminated, to the extent that costs can be attributed.
14. Time of Essence. Time is of the essence in the performance of this Memorandum of
Understanding.
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15. Authority to Execute. The persons executing this Memorandum of Understanding on behalf of
the parties warrant that they are duly authorized to execute this Memorandum of Understanding
and that by executing this Memorandum of Understanding, the parties are formally bound.
16. Indemnification. In contemplation of the provisions of Section 895.2 of the Government Code
of the State of California imposing certain tort liability jointly upon public entities solely by
reason of such entities being parties to an agreement as defined by Section 895 of said Code, the
parties hereto, as between themselves, pursuant to the authorization contained in Section 895.4
and 895.6 of said Code, will each assume the full liability imposed upon it, or any of its officers,
agents or employees by law for injury caused by negligent or wrongful act or omission occurring
in the performance of this Memorandum of Understanding to the same extent that such liability
would be imposed in the absence of Section 895.2 of said Code. To achieve the above stated
purpose, each party indemnifies and holds harmless the other parties for any loss, cost of expense
that may be imposed upon such other party solely by virtue of Section 895.2
17. Modification. This Memorandum of Understanding constitutes the entire agreement between
the parties and supersedes any previous agreements, oral or written. This Memorandum of
Understanding may be modified only by subsequent mutual A:ritten agreement executed by all of
the parties.
18. Waiver. All waivers of the provisions of this Memorandum of Understanding must be in writing
by the appropriate authorities of each of the CITIES.
9. California Law. This Memorandum of Understanding shall be construed in accordance with the
laws )f the St_ :e ol' California.. Any action commer:,ed ahou this Memotandum of
Ut de.::tar -1,ig l V )e iied in i " e 'ntral brancf of the S.-. : ,,a Clara ` uperic, Court.
20. Interpretation. This Memorandum of Understanding shall be interpreted as though prepared by
all of the parties.
21. Preservation of Agreement. Should any provision of this Memorandum of Understanding be
found invalid or unenforceable, the decision shall affect only the provision interpreted, and all
remaining provisions shall remain enforceable.
IN WITNESS THEREOF, these parties have executed this Memorandum of Understanding on the day
and year shown below.
4
Attest
City Clerk-
Date:
Approved as to form:
City Attorney
Date:
CIT SAN JUAN BAUTISTA
Ci y Manager
Date: vc�
Attest;
�C-
City Clerk ; k ,
Date:
Approved as to form:
CITY OF HOLLISTER
------- ---- --
City Manager o
Date:
Attest:
D t}eClerk � j�
Date:
Approved as to form:
i "- . (��
City Attorney
S "(S --0 O
Date:
DCTA_/L2--" LJCUX,�AkV
City A orney � / (a' `�n
Date: o
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MEMORANDUM OF UNDERSTANDING
CABLE TV REFRANCHISING EFFORT
THIS MEMORANDUM OF UNDERSTANDING is made this 21st day of December,
1994, between the CITY OF MORGAN HILL; a municipal corporation ( "MORGAN HILL ");
the CITY OF GILROY; a municipal corporation, ( "GILROY "); the CITY OF HOLLISTER;
a municipal corporation ( "HOLLISTER "); the CITY OF SAN JUAN BAUTISTA; a municipal
corporation ( "SAN JUAN BAUTISTA "); and the COUNTY OF SANTA CLARA, a political
subdivision of the State of California; ( "SANTA CLARA").
RECITALS
The following recitals are a substantive part of this MEMORANDUM OF
UNDERSTANDING:
1. This MEMORANDUM OF UNDERSTANDING is entered into pursuant to Morgan
Hill City Council approval on December 21 , 1994; Gilroy City Council approval on
December 19 ' 1994; Hollister City Council approval on December 5 , 1994; San Juan
Bautista City Council approval on December 20 , 1994; Santa Clara County Board of
Supervisors approval on December 13 , 1994.
2. MORGAN HILL, GILROY, HOLLISTER, AND SAN JUAN BAUTISTA
( "CITIES "), along with SANTA CLARA ( "COUNTY "), all currently have cable television
( "CATV ") franchise agreements with Falcon Cable TV of Northern California ( "FALCON ").
3. CITIES and COUNTY wish to work together to conduct a joint CATV refranchising
effort in order to facilitate a more concerted and cohesive approach to the CATV refranchising
process and ensure that CATV customers within CITIES and COUNTY are receiving the
appropriate level of service from FALCON.
4. CITIES and COUNTY intend to retain the professional services of a qualified
consultant, selected with the approval of each CITY and COUNTY, to assist in developing a
refranchising strategy, identifying common and unique jurisdictional CATV issues and goals,
and developing a program for the actual negotiation of a new CATV franchise.
5. The purpose of this Agreement is to secure the commitment of each CITY and
COUNTY to participate in the CATV refranchising process.
1
MEMORANDUM OF UNDERSTANDING
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Term of Memorandum of Understanding. This Memorandum of Understanding shall
cover the period of December 21 , 1994 through June 30 , 1996 . It may be renewed
upon mutual written agreement for an additional period not to exceed one year.
2. Scope of Work. CITIES and COUNTY will conduct a joint CATV refranchising
process that will include: development of a refranchising strategy, development of
CATV franchise goals and objectives, and negotiation of a new CATV franchise.
3. Proiect Coordination. MORGAN HILL will serve as the project leader and contract
administrator for this CATV refranchising process. Work tasks relating to the CATV
refranchising process shall be shared equitably between the CITIES and COUNTY.
The CITIES and COUNTY shall meet regularly to decide upon the work needed to
conduct the CATV refranchising process and to review its progress.
All decisions relating to the conduct of the CATV refranchising process shall be done
through consensus of the CITIES and COUNTY. In the event consensus can not be
reached, a majority vote shall resolve the issue. Utilizing a formula whereby each
jurisdiction has one vote plus its percentage of CATV subscribers, CITIES and
COUNTY will be eligible to cast votes accordingly:
City of Gilroy
29 votes
City of Hollister
23 votes
City of Morgan Hill
27 votes
City of San Juan Bautista
11 votes
County of Santa Clara
10 votes
4. Cost Apportionment. CITIES and COUNTY shall provide financial support in an
amount not to exceed ($145.680.00) for the CATV refranchising effort and shall pay
their proportional share for the costs of undertaking and maintaining the refranchising
process as follows:
City of Gilroy $50,202 (37% of remaining total)
City of Hollister $39,347 (29% of remaining total)
City of Morgan Hill $46,131 (34% of remaining total)
City of San Juan Bautista $ 5,000
County of Santa Clara $ 5,000
Any financial support in excess of the above specified amount shall be approved in
writing by the CITIES and COUNTY in advance, and shall be allocated among the
jurisdictions based on the voting formula identified in Section 3.
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5. Consultant. On behalf of the CITIES and COUNTY, the services of The Buske
Group will be secured to conduct the CATV refranchising process. Attachment A, the
Consultant Agreement, describes the contract services to be performed by the
Consultant, and the cost and anticipated schedule for the project. The project will be
initiated following execution of this Memorandum of Understanding by the CITIES
AND COUNTY, and the subsequent execution of the Consultant Contract and issuance
of a notice to proceed. CITIES and COUNTY'S approvals of the project scope of
work, cost and schedule is indicated by execution of this Memorandum of
Understanding.
6. Contract Administration. MORGAN HILL will administer the Consultant Contract
on behalf of the CITIES and COUNTY. The Consultant Contract will be administered
according to the general requirements and standards which apply to other similar
projects administered by MORGAN HILL. MORGAN HILL staff will award the
contract, manage the project, including payment of the Consultant and serve as the
liaison with the Consultant. MORGAN HILL staff will coordinate project review and
decision - making with CITIES and COUNTY.
The project manager for MORGAN HILL shall be the Consultant's primary contact and
will assist the Consultant in functions involving coordination with CITIES and
COUNTY and FALCON. Assistance from staff of participating jurisdictions will be
provided upon request of the project manager.
CITIES and COUNTY shall be copied with any and all correspondence or
documentation of any type between Consultant and MORGAN HILL. Consent shall
be obtained from CITIES and COUNTY by MORGAN HILL for any proposed
deviations from the contract by the Consultant.
7. Payment. MORGAN HILL shall bill the CITIES and COUNTIY monthly. Invoices
shall reflect the CONSULTANT's monthly invoices, and CITIES and COUNTY shall
be billed based on their proportional share of their financial support of the project.
CITIES and COUNTY shall endeavor to pay their respective amounts due within thirty
(30) days from receipt of billing.
As agreed by MORGAN HILL, GILROY and HOLLISTER, HOLLISTER'S share of
the program costs will be paid by GILROY and MORGAN HILL through June 30,
1995. GILROY and MORGAN HILL will each pay fifty percent (50 %) of
HOLLISTER's bills under this Memorandum of Understanding through June 30, 1995.
HOLLISTER will reimburse GILROY and MORGAN HILL for the bills paid by each
of them on its behalf by July 31, 1995. HOLLISTER shall be responsible for directly
paying its own bills as of July 1, 1995, through the remainder of the term of this
Memorandum of Understanding.
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8. Non - Liability of Officials and Employees. No official or employee of any CITY or
COUNTY under this Memorandum of Understanding shall be personally liable to any
other entity or person in the event of any default or breach by CITIES or COUNTY.
9. Non - Discrimination. CITIES and COUNTY covenant that there shall be no
discrimination against any person or group due to race, color, creed, religion, sex,
marital status, age, handicap, national origin, or ancestry, in any activity pursuant to this
Memorandum of Understanding.
10. Compliance with Law. CITIES and COUNTY shall comply with all applicable laws,
ordinances, codes, and regulations of the federal, state, and local government in any
activity pursuant to this Memorandum of Understanding.
11. Conflict of Interest and Reporting. CITIES and COUNTY shall at all times avoid
conflict of interest or appearances of conflict of interest in performance of this
Memorandum of Understanding. No CITY or COUNTY shall act independently
outside the scope of this Memorandum of Understanding with FALCON or the
CONSULTANT.
12. Notices. All notices shall be personally delivered or mailed to the below listed
addresses, or to such other addresses as may be designated by written notice. These
addresses shall be used for delivery of service of process.
a. Address of MORGAN HILL is as follows:
City Manager
17555 Peak Avenue
Morgan Hill, CA 95037
b. Address of GILROY is as follows:
City Administrator
7351 Rosanna Street
Gilroy, CA 95020
c. Address of HOLLISTER is as follows:
City Manager
375 Fifth Street
Hollister, CA 95023
d. Address of SAN JUAN BAUTISTA is as follows:
City Manager
P.O. Box 1086
San Juan Bautista, CA 95045
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e. Address of SANTA CLARA COUNTY is as follows:
County Executive
70 West Hedding Street
San Jose, CA 95110
13. Termination. This Memorandum of Understanding may be terminated upon providing
a thirty (30) day written notice from one CITY or COUNTY to other CITIES or
COUNTY. In the event of termination, the party terminating shall be responsible for
its share of any and all costs incurred for work done up to the time in which the
agreement is terminated, to the extent that costs can be attributed.
14. Time of Essence. Time is of the essence in the performance of this Memorandum of
Understanding.
15. Authority to Execute. The persons executing this Memorandum of Understanding on
behalf of the parties warrant that they are duly authorized to execute this Memorandum
of Understanding and that by executing this Memorandum of Understanding, the parties
are formally bound.
16. Indemnification. In contemplation of the provisions of Section 895.2 of the
Government Code of the State of California imposing certain tort liability jointly upon
public entities solely by reason of such entities being parties to an agreement as defined
by Section 895 of said Code, the parties hereto, as between themselves, pursuant to the
authorization contained in Section 895.4 and 895.6 of said Code, will each assume the
full liability imposed upon it, or any of its officers, agents or employees by law for
injury caused by negligent or wrongful act or omission occurring in the performance
of this Memorandum of Understanding to the same extent that such liability would be
imposed in the absence of Section 895.2 of said Code. To achieve the above stated
purpose, each party indemnifies and holds harmless the other parties for any loss, cost
or expense that may be imposed upon such other party solely by virtue of Section 895.2
17. Modification. This Memorandum of Understanding constitutes the entire agreement
between the parties and supersedes any previous agreements, oral or written. This
Memorandum of Understanding may be modified only by subsequent mutual written
agreement executed by all of the parties.
18. Waiver. All waivers of the provisions of this Memorandum of Understanding must be
in writing by the appropriate authorities of each of the CITIES and COUNTY.
19. California Law. This Memorandum of Understanding shall be construed in accordance
with the laws of the State of California. Any action commenced about this
Memorandum of Understanding shall be filed in the central branch of the Santa Clara
Superior Court.
5
20. Interpretation. This Memorandum of Understanding shall be interpreted as though
prepared by all of the parties.
21. Preservation of Agreement. Should any provision of this Memorandum of
Understanding be found invalid or unenforceable, the decision shall affect only the
provision interpreted, ,,dnd, all remaining provisions shall remain enforceable.
IN WITNESS THEREOF, these parties have executed this Memorandum of Understanding
on the day and year shown below.
CITY OF MORGAN HILL
City Manage
Date:
Attest:
�I /
i
�. r
Approved as to form:
City AtOm y
Date.
C
CITY OF
- zR— R .)�
Attest:
1>e
ZCity Clerk
Date: — -- cZ — g?
Approved as to form:
City Attorney ((
Date: fS
CITY OF HOLLISTER
Mayor
Date: March 23, 1995
Attest:
DEPUTY City` Clerk
Date: March 23, 1995
Approved as to form:
City AttomW
Date: -5
COUNTY OF SANTA CLARA
z
Chairperson, Board of Supervisors
Date:
c:wp51 \94ad \cab1etv\mou4. dft
1/25/95
CITY OF SAN JUAN BAUTISTA
City Manager
Date: A
Attest:
City Cle
i Date: e 5
7
Approved as to form:
City Attorney-
Date:
Attachment A
CONSULTANT AGREEMENT
THE BUSKE GROUP
THIS AGREEMENT is made this 21st day of December , 1994, by the CITY OF
MORGAN HILL, a municipal corporation, ( "CITY "), and The Buske Group-, a California
corporation, ( "CONSULTANT ").
RECITALS
The following recitals are a substantive part of this Agreement:
1. This Agreement is entered into pursuant to the City of Morgan Hill's City
Council approval on December 21, 1994.
2. CONSULTANT is qualified by virtue of experience, training, education, and
expertise to accomplish these services.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Term of Agreement. This Agreement shall cover services rendered from December
21. 1994_ until June 30, 1996.
2. Services to be Provided. The CONSULTANT shall perform cable television franchise
renewal consulting services, as identified in Exhibit "A ", "Scope of Work ", which is
attached hereto and incorporated by reference, for the City of Morgan Hill; City of
Gilroy; City of Hollister; City of San Juan Bautista; and County of Santa Clara. Such.
services shall consist of the following.
1. Development of a detailed franchise renewal plan and implementation strategies.
2. Review of past performance of Falcon Cable TV including technical, financial,
customer service and PEG access compliance.
3. Identification of future community needs and interests.
4. Development of proposed franchise provisions and a draft model fr anchise and
ordinance.
5. Evaluation of structural options for jurisdictions to conduct ongoing joint
franchise administration.
6. Documentation of all findings and recommendations into one comprehensive
report.
7. Conduct informal negotiations with Falcon Cable TV.
1
3. Compensation: CONSULTANT shall be compensated as follows:
3.1 Amount. ($145,680). Compensation under this Agreement shall not exceed
$145,680.
3.2 Payment. For work under this Agreement, payment shall be made per monthly
invoice. For extra work not a part of this Agreement, written authorization by CITY
will be required, payment shall be based on the following hourly rates:
Sue Buske
$ 75.00/hour
Stephen John
$ 85.00/hour
Clifford Schrock
$ 75.00/hour
Randy VanDalsen
$ 65.00/hour
Joe Van Eaton
$180.00/hour
3.3 Records of Expenses. CONSULTANT shall keep accurate records of payroll,
travel, and expenses. These records will be made available to CITY.
3.4 Termination. CITY and CONSULTANT shall have the right to terminate this
Agreement, without cause, by giving thirty (30) days written notice. In the event of
such termination, CONSULTANT shall (1) promptly discontinue all services affected
(unless the notice directs otherwise); and (2) upon payment in full by CITY for all
services completed up to and including the termination date, deliver all data, reports,
estimates, summaries, and such other information and materials as may have been
accumulated by CONSULTANT in performing the Agreement, whether completed or
in progress.
4. Insurance Requirements.
4.1 Commencement of Work. CONSULTANT shall not commence work under this
Agreement until it has obtained CITY approved insurance. All insurance required by
this Agreement shall be carried only by responsible insurance companies licensed to do
business in California and shall name as additional insured CITY, its elected officials,
officers, employees, agents and representatives. All policies shall contain language to
the effect that: (1) the insurer waives the right of subrogation against CITY and
CITY'S elected officials, officers, employees, agents, and representatives; (2) insurance
shall be primary noncontributing and any other insurance carried by the CITY shall be
excess over such insurance, and (3) policies shall provide that it shall not be cancelled
or materially changed except after thirty (30) days' notice by the insurer to CITY by
certified mail. CONSULTANT shall furnish CITY with copies of all such policies or
certificates promptly upon receipt.
4.2 Workers Compensation Insurance. CONSULTANT and all subcontractors shall
maintain Worker's Compensation Insurance, if applicable.
2
4.3 Insurance Amounts. CONSULTANT shall maintain comprehensive, broad form.
general public liability and automobile insurance against claims and liabilities for
personal injury, death, or property damage, providing protection of at least $1,000,000
for bodily injury or death to any one person for any one accident or occurrence and at
least $1,000,000 for property damage. CONSULTANT shall also maintain professional
liability insurance in an amount of $250,000 per occurrence.
5. Non Liability of Officials and Employees of the CITY. No official or employee of
CITY shall be personally liable for any default or liability under this Agreement.
6. Non - Discrimination. CONSULTANT covenants there a shall handicap, no discrimination based
or
upon race, color, creed, religion, sex, marital status, age, p, g
ancestry, in any activity pursuant to this Agreement.
7, Independent Contractor. it is agreed ent or that CONSULTANT
of CIT shall act and be an
independent contractor and no g employee
8. Compliance with Law. CONSULTANT shall comply with all applicable laws,
ordinances, codes, and regulations of the federal, state, and local government.
9. Ownership of Work Product. All documents or other information developed or
received by CONSULTANT shall be property CITY. upon CONSULTANT
of this
provide CITY with copies of thes e ms upon demand o
Agreement.
10. Conflict of Interest and Reporting. CONSULTANT shall at all times avoid conflict
of interest or appearance of conflict of interest in performance of this Agreement.
11. Notices. All notices shall be personally delivered or mailed, via first class mail to the
below listed addresses. These addresses shall be used for delivery of service of process.
a. Address of CONSULTANT is as follows:
The Buske Group
3001 J Street. Suite 201
Sacramento. CA 95816
b. Address of CITY is as follows:
(with a copy to):
City of Morgan Hill Morgan Hill City Attorney
17555 Peak Avenue 17555 Peak Avenue
Morgan Hill, CA 95037 Morgan Hill, CA 95037
12. CONSULTANT'S Proposal. This Agreement shall include CONSULTANT'S
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proposal or bid which is incorporated herein. In the event of any inconsistency between
the terms of the proposal and this Agreement, this Agreement shall govern.
13. Licenses. Permits and Fees. CONSULTANT shall obtain a City of Morgan Hill
Business License, all permits, and licenses as may be required by this Agreement.
14. Familiarity with Work. By executing this Agreement, CONSULTANT warrants that:
(1) it has investigated the work to be performed; and (2) it understands the difficulties,
and restrictions of the work under this Agreement. Should CONSULTANT discover
any conditions materially differing from those inherent in the work or as represented
by CITY, it shall immediately inform CITY and shall not proceed, except at
CONSULTANT'S risk, until written instructions are received from CITY.
15. Time of Essence. Time is of the essence in the performance of this Agreement.
16. Limitations Upon Subcontracting and Assignment. Neither this Agreement or any
portion shall be assigned by CONSULTANT without prior written consent of CITY.
If CONSULTANT is permitted to subcontract any part of this Agreement,
CONSULTANT shall be responsible to CITY for the acts and omission of its
subcontractors as it is for persons directly employed. Nothing contained in this
Agreement shall create any contractual relationship between any subcontractor and
CITY.
1'. Authority to Execute. The persons executing this Agreement on behalf of the parties
warrant that they are duly authorized to execute this Agreement.
18. Indemnification. CONSULTANT agrees to protect, and hold harmless CITY and its
elective or appointive boards, officers, agents, and employees from any and all claims,
liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or
death of any person, or damage to property, or interference with use of property, arising
out of, or in any way connected with performance of the Agreement by
CONSULTANT. CONSULTANT'S agents, officers, employees, subcontractors, or
independent contractors hired by CONSULTANT. The only exception to
CONSULTANT'S responsibility to protect, defend, and hold harmless CITY, is due to
the sole negligence of CITY. This hold harmless agreement shall apply to all liability
regardless of whether any insurance policies are applicable. The policy limits do not
act as a limitation upon the amount of indemnification to be provided by
CONSULTANT.
19. Modification. This Agreement constitutes the entire agreement between the parties and
supersedes any previous agreements, oral or written. This Agreement may be modified
or provisions waived only by subsequent mutual written agreement executed by CITY
and CONSULTANT.
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20. California Law. This Agreement shall be construed in accordance with the laws of the
State of California. Any action commenced about this Agreement shall be filed in the
central branch of the Santa Clara County Superior Court.
21. Interaretation. This Agreement shall be interpreted as though prepared by both
parties.
22. Preservation of Agreement. Should any provision of this Agreement be found invalid
or unenforceable, the decision shall affect only the provision interpreted, and -all
remaining provisions shall remain enforceable.
23. Effective Date of Contract. This contract shall only be effective contingent upon
approval by all participating jurisdictions to the cable television refranchising
Memorandum of Understanding between the City of Morgan Hill, the City of Gilroy.
the City of Hollister, the City of San Juan Bautista, the County of Santa Clara and the
County of San Benito
IN WITNESS THEREOF, these parties have executed this Agreement on the day and
year shown below.
Date: CITY OF MORGAN HILL
By: &w C '
City Manager
ST:
ity Clerk
Date: "CONSULTANT"
THE BUSKS GROUP �—
By: � -
Date:
APPROVED AS TO FORM:
Morg ill City Attorney
Dat 12 9' `7
a VED AS TO FORM:
Morgan Hill Risk Manager
Date: 1:)-7 -7
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11/30/94
E
Exhibit A
A PROPOSAL TO THE CITIES OF MORGAN HILL,
HOLLISTER, GILROY AND SAN JUAN BAUTISTA
AND THE COUNTIES OF SANTA CLARA
AND SAN BENITO, CALIFORNIA
TO PROVIDE
CONSULTING SERVICES FOR
CABLE TELEVISION FRANCHISE RENEWAL
Prepared by
The Buske Group
3001 J Street, Suite 201
Sacramento, CA 95816
(916) 441 -6277
1. SCOPE OF WORK
Morgan Hill Group Phase 1
We will conduct a detailed review and evaluation of the existing Falcon
franchises and other documents which affect franchise obligations or the
franchising process. The Buske Group team will then work with Morgan Hill Group
staff as well as a designated staff person from each jurisdiction and the
City /County Attorney to:
Devise reasonable and cost - effective renewal procedures consistent with
federal, state and local law.
As the Morgan Hill Group jurisdictions are aware, the Cable Act sets out
formal franchise procedures which must be followed if activated by the
local government or cable operator (47 U.S.C. Section 546). Most local
governments never complete the formal renewal process. The operator
and local government resolve renewal issues through negotiation.
However, to protect its interests against challenges to the franchising
process, the Morgan Hill Group cannot ignore the formal procedures. We
therefore believe a reasonable franchise procedure should provide
adequate time for negotiation, and at the same time ensure that the
Morgan Hill Group can comply with all requirements of the Cable Act
before the franchises expires. This can be accomplished by scheduling
the initial public proceedings contemplated by 47 U.S.C. Section 546(a)
over a period of several months, during which time the jurisdictions can
also complete a needs assessment and customer survey, conduct a
technical audit, examine other franchises from comparable cities, review
customer service issues, develop a negotiating position, and meet and
negotiate informally with Falcon. If Falcon and the Group can reach
agreement, the formal process can be terminated. If the Morgan Hill
Group and Falcon cannot reach agreement, 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.
N.
Work with the City /County Ab orney
is
satany ordinance amendments
entify requirements of state and
local laws which also must
required to enable the franchise process to move forward smoothly.
Work with designated Morgan Hill Group staff person to establish a list
of official staff contact persons for each jurisdiction. Establish Cable
Franchise Renewal Task Force (including representatives of each
jurisdiction). Agree upon meeting schedules and role and responsibilities
of the Task Force. Conduct training session for staff contact persons
and the Cable Franchise Renewal Task Force.
Explore the difference under State law between a Memorandum of
Understanding (MOU) and a Joint Powers Authority (JPA) and determine
which structure is most appropriate to bind the various jurisdictions
together during the renewal process. Review and /or develop draft MOU
or JPA.
Assist the jurisdictions by preparing a response to any request from
Falcon Cable to initiate the franchise renewal process pursuant to the
Cable Act.
Prepare initial request for information from Falcon.
As the Morgan Hill Group moves forward in the franchising process, The
Buske Group team will identify areas in the existing ordinances which 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.
The consulting team will review franchises from comparable cities and draw
upon our extensive files of franchise documents in preparation for the drafting of
various sections of any new franchise agreement.
D .liv _rables_: The initial review will be completed with development of a
renewal plan and timeline, establishment and training of
Franchise Renewal Task Force, establishment of an
appropriate legal entity (i.e., MOU or JPA) under which the
Morgan Hill Group will operate during the franchise renewal
process, and the preparation of responses to any request
from Falcon to proceed with franchise renewal.
7
Morgan Hill Group Phase 2.
The Buske Group team proposes to perform a technical review of the
existing system which will involve an inspection of the physical construction of the
plant. Additionally, a basic engineering test will be made at selected points within
the system to verify that it meets minimum performance standards on all channels.
The audit will be of great assistance in identifying whether and to what
degree problems such as radiation and signal leakage, variable audio levels, and
variable picture quality between channels exist on the system. It will also permit
the Morgan Hill Group to judge the extent and nature of any system upgrade or
rebuild which will be necessary and to assess any proposal from Falcon with
regard to upgrade or rebuild of the system.
MU •. : ...
The Buske Group's engineer will review certain technical reports which
will be requested of Falcon as a precursor to the testing. Specifically, we propose
to obtain the following documents from Falcon for our review:
A system profile describing the age, construction, architecture,
capacity, technology of headend and cable plant, maps of areas
built and areas activated.
A channel chart.
• The results of recent sweeps on the end points of major trunks.
Results of the most recent proof -of- performance tests.
Results of the most recent signal leakage tests.
The review of these documents will alert the engineer to problems which
may be noted in the reports. It will also provide preliminary information on what
program of system maintenance is utilized by Falcon.
This task will involve a review of cable plant design maps and portions of
the distribution system selected for detailed inspection. The cable distribution
plant will be examined to determine: (a) whether it adheres to the design maps;
(b) compliance with industry standards; and (c) the general quality of construction.
Certain points on the system in each community represented by the
Morgan Hill Group will be inspected and documented regarding criteria such as:
Condition of the plant.
Adequate clearance between telephone and power utilities.
• Proper grounding.
Compliance with the National Electric Code (NEC).
Evidence of corrosion.
Defective mechanical connection.
Conformity to design documentation.
All field inspections will be documented in both written and photographic
form. At least six of the inspections will be made at points where active power
supplies are installed.
[CIIIIIIIIIIIAMAII(W-INU M-0 ,.
Clifford Schrock, The Buske Group's consulting engineer, proposes to
perform certain tests which are in compliance with generally accepted test
procedures. Tests will be made at the system headend and at points throughout
the distribution network including points in each City /County represented in the
Morgan Hill Group.
We recommend that the tests be conducted jointly with technical
representatives from the cable company, using test equipment provided by the
company. Our past experience indicates that this is a very desirable procedure
since it affords us an opportunity not only to
perform regular test, t sts.t also
the ability of the cable system st aff to p
verifies that adequate test equipment is available to perform regular system tests
and support maintenance procedures. At minimum, this process will include tests
for the following performance parameters:
E
. Video and audio carrier levels.
. Peak -to- valley frequency response.
. Carrier -to -noise measurements.
. Hum modulation.
. Composite triple beat distortion.
. Intermediate distortion.
. System radiation.
. Subjective TASO viewing tests.
•
The electrical plant testing will include tests of the headend. Tests will
be performed to verify the quality of individual signals from broadcast and satellite
sources.
Deliverables: The Buske Group will prepare a report documenting the
results of the inspection and testing. The report will provide
complete details on the results of all phases of our analysis.
Included in the documentation will be photographs and an
overall evaluation of the system performance.
10
180 R-OTI-Ken; fit—
We propose to assist the Morgan t tasks which follow Hwr llow are suggested:
evaluating past
performance of the cable operator. T
Review the operator's compliance with the existing franchise.
Conduct a financial review of the system to determine whether Falcon
has paid the proper franchise fees and to ascertain the general financial
condition of the system.
Review customer service standards and consumer complaints and assist
the City in conducting a customer satisfaction survey.
Review current PEG access channels, equipment, facilities and services.
The Morgan Hill Group has an inte'nehave received ral� benefits
performance to assure that it and members o f the public
of the existing franchise. In addition, the jurisdictions are entitled to deny renewal
under formal Cable Act procedures if they determine that the operator has failed to
comply substantially with a material term of a franchise, or if they determine that
the operator's performance has been unreasonable in light of community needs.
Review may also result in immediate improvements in service in some areas.
We recommend that the Morgan Hill Group's past performance review
focus on a few areas which are of particular public, financial or legal significance.
The areas selected for review will be identified through preliminary discussions
with staff, but based on our previous experience with other franchise renewals,
we believe that certain areas may warrant a detailed examination. In some cases,
if it is determined that Falcon has failed to comply with a franchise provision, the
Morgan Hill Group may be I required to give Falcon notice and an opportunity to
cure the defect in its performance.
We frequently find that cable companies have underpaid franchise fees.
Underpayments are often the result of a combination of bookkeeping errors and
intentional exclusion of certain types of revenues. We propose to submit
information requests to Falcon and, if necessary, to examine public documents on
file with the US Copyright office to determine whether Falcon has excluded
revenues which ought to be included in the calculation of the franchise fee for
each member jurisdiction of the Morgan Hill Group.
11
• /1 1./ i • 0 173- 1 1• -11
Typically, it is not necessary to perform a detailed financial review to
determine whether the cable operation is financially capable of providing service.
Instead, the purpose of our review would be primarily to assist the City in
evaluating the reasonableness of its own position and the validity of any financial
claims made by Falcon. In preparation for negotiations with the operator, The
Buske Group team will review public documents describing Falcon's financial
status and will attempt to obtain specific financial information concerning the
Falcon system. The financial information reviewed will also help us determine
whether any special conditions need to be placed on Falcon to assure
performance. We intend to submit an- initial request for financial information to
Falcon early in the renewal process. Additional information may be sought when
needed, including during any negotiations as the renewal process moves forward.
In addition, if the Morgan Hill Group wishes to have a detailed review of
Falcon's financial records conducted, we could perform that review. However, we
believe the Group should only decide to audit Falcon's records if the initial review
suggests the cost will justify the benefits.
Deliverables: The Buske Group team will prepare written data requests and
a short summary of the results of the financial analysis, as
required for negotiations. During the process, if it is
discovered that Falcon has underpaid franchise fees to the
jurisdictions, the consultant will assist the jurisdiction in
recovering those funds.
12
•u• .
We propose to review customer service standards and s
complaints in order to ascertain the level o f consumer satisfaction with Falcon
The following six tasks are proposed:
• First, we will examine all available complaint files held by members of
the Morgan Hill Group and, to the extent possible, from Falcon.
• Second, we will review any current t customer erothe service in
effect and compare those standards
• Third, we will solicit and review information from Falcon nts and specific to
standards, procedures for handling customer comp
and "tracking" of customer complaints.
Fourth, we will ask all individuals who are invited to participate in the
needs assessment workshops (which will be discussed later in this
proposal) to respond to a customer satisfaction
s questionnaire.
relations, such
questionnaire will cover all critical are a of consume
as cable company telephone response, frequency of outages, billing
practices, response time, and quality of repair service. The results
will be non - scientific, but will provide a valuable sampling.
Fifth, prepare a survey instrument and conduct a customer
satisfaction survey to assess satisfaction with current levels of
service provided by Falcon. The questionnaire will also include
questions which identify subscriber interest in community based PEG
access, new technology based services, and additional programming
services.
Sixth, we will ask persons attending the public hearings held during
the renewal proceedings to fill out a questionnaire like the one
presented during the workshops.
Task Five, described above, involves a telephone survey. We offer two
options with regard to this survey process.
notion 1:
Lesher Wilson Communications, our survey firm, proposes to
draw a sample from the current Falcon subscriber base in the Morgan Hill Group.
The sample size for the three cities with the largest subscriber base (Morgan Hill,
Hollister, and Gilroy) would be sufficient to allow analysis for each community
confidence. The
independently with a sampling error of ±8% at be too small to make stet sti a iy
sample sizes for the smaller communities would
significant conclusions about the findings for each of the smaller communities.
13
The total sample size for all jurisdictions involved would be approximately 470.
The sampling error for the total sample (properly weighted to reflect actual
subscription levels) would be i4 %, again at the 95% level of confidence.
These measures will give a broad and useful picture of consumer
satisfaction and possible problem areas which need to be addressed in the future.
Franchising authorities have the right to enforce customer service
standards which are in the franchise. Many communities have had good success
in negotiating enforceable standards in concert with cable companies, who have a
strong economic interest in maintaining both a good image and responsible
practice in the customer service area. Therefore, we will review comprehensive
standards now being used by other cities in light of the specific problems identified
as an outcome of our research for the Morgan Hill Group. These standards will be
modified as necessary to address unique local concerns, and the modified
standards will provide the basis for negotiations with Falcon.
Deliverables: An oral report and memo documenting the outcome of the
review of complaint files and customer service standards and
level of consumer satisfaction. Examples of quality customer
standards from other cities will be provided. We will prepare
a draft of customer service standards shaped to meet the
Morgan Hill Group needs.
A survey instrument and process for the conduct of a
customer service /community needs and interests survey. The
report will include a summary document keyed to the full
report and highlighting the significant findings of the survey.
These recommendations will be integrated into the overall
compilation of needs and interests (see Section D of proposal)
which will form the basis of proposed franchise provisions.
14
The Buske Group proposes to conduct a review of any current access
resources and services. The review process will include the following tasks:
First, prepare and distribute to any PEG management entities a set of
forms relating to: (1) the level of equipment and facilities available;
(2) the degree to which those resources are utilized; (3) the types of
service provided, such as training, outreach, program promotion, etc.;
(4) programming hours for each channel, both locally- produced and
imported; (5) users of each channel; (6) funding levels and funding
sources; (7) operating policies and procedures; (S) contracts between
access management entity(s) and the City or cable company.
Second, conduct an on -site review of facilities and conduct interviews
with access staff and users.
The Buske Group has extensive files containing information from other
communities regarding the level of resources, equipment and facilities that are
available for access. We will compare that material to the data gathered regarding
the Morgan Hill Group.
This information, in combination with the input received during the
workshops described in the next section and information gathered during public
hearings, will be utilized to determine specific future needs in the access area.
Deliverables: An oral and written report documenting work performed and
the outcomes of the review.
Specific recommendations regarding future access needs and
interests will be included. These recommendations will be
integrated into the overall compilation of needs and interests
(see next section of proposal) which will form the basis of
proposed franchise provisions.
15
M*rT6MJkVJWi�R4K4 111111111,
We propose to assist the Morgan Hill Group in the conduct of a needs
assessment which will identify future cable - related community needs, interests and
concerns relative to the franchise renewal process.
The principal method we propose to use to implement our approach in
identifying community needs is a series of ten structured workshops designed to
reach primary cable user groups. Participants in the workshops will be asked to
answer questions which will allow the Morgan Hill Group to identify future cable -
related needs and interests, as well as identify concerns regarding the operator's
performance. Our experience is that these structured workshops are very
successful in assuring that user's expression of needs, interests and concerns is
well- informed. These workshops are also successful in developing significant
involvement in the franchising process by a wide variety of vitally interested
groups. The method is efficient, because it permits the Morgan Hill Group 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. For this reason we believe the workshop
method is preferable to telephone or written surveys as the primary instrument of
needs assessment.
We also recommend that the Morgan Hill Group schedule a series of
hearings to provide an opportunity for the public to address issues being explored
through the assessment process and review of past performance. This will not
only permit the jurisdictions to comply with any formal Cable Act renewal
requirements, it will maximize public participation and support for the renewal
process.
The needs assessment will conclude with a compilation of the results of
all needs assessment activities (including the telephone survey data), and the
formulation of specific recommendations which will be the basis of proposed
franchise provisions. The reports prepared can be presented as part of any
renewal proceedings conducted by Morgan Hill Group member jurisdictions
consistent with the Cable Act.
16
- • _ 1.1WA.IRTAWS �••
The workshops will be closely targeted to permit tailoring presentations
that speak to the specific interests of critical cable user groups within the various
jurisdictions served by the Morgan Hill Group. Our current intention, subject to
review, is to conduct ten workshops designed for the following five groupings and
to select locations for the meetings which encompass all of the member
jurisdictions of the Morgan Hill Group:
• Government departments and agencies.
• Non - profit organizations in areas such as community service, social
service, health care, and youth /senior citizen service.
• Arts, cultural, and heritage groups and organizations.
• Educational institutions including local school districts and any post-
secondary educational institutions located in the community.
Interested public and citizens at large.
Each workshop will include an intensive introduction explaining the
nature of modern cable service in critical areas (i.e., programming, consumer
service, system design and technology, PEG access, and non - entertainment uses
of the system, including video, voice and data services). Special emphasis will be
placed on presenting the industry developments most pertinent to each targeted
workshop, and reviewing the experiences of similar organizations in the Morgan
Hill Group and other jurisdictions. Current and developing federal regulatory
policies will be summarized as needed. Ample opportunity for questions and
clarifications will be provided.
Following the introductory 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 or made possible
through the franchising process. Each participant will complete the workshop by
filling out a questionnaire designed to clearly express user needs to be fulfilled in
the renewal process. Workshop participants will also be asked to identify existing
problems with delivery of cable services.
The Buske Group team will ascertain community needs and interests in
the areas of public, educational and government (PEG) access uses of a cable
communications system. PEG access represents a rich opportunity for community
uses of the cable communications medium. The Cable Act permits franchising
authorities to require certain support for PEG access, and any future amendments
to that legislation are likely to preserve this right. In addition, many cable
17
companies have found it in their own larger interest to agree through negotiation
to provide a broad range of support in the areas of capital equipment and facilities,
dedicated access channels, organizational support, and other services.
Through the workshop process, we will document the kind and degree of
future community uses likely in the Morgan Hill Group, taking into account
experiences in comparable communities. Our workshops will complement
information gathered specific to current access channels, equipment, facilities and
services and information gathered through the telephone survey.
The Buske Group team will determine the kind of cable system required
to meet future community needs in the Morgan Hill Group. Part of this task will be
accomplished through the workshop process. Workshop participants will not be
expected to become technical experts. However, introductory presentations in
these forums will include a review of the current and developing "state -of- the -art"
for new cable systems, as well as those being rebuilt or upgraded today.
In addition, the technical audit of the cable system suggested earlier in
this proposal can provide valuable information regarding the condition of the
existing system. By considering the current system and its condition and
capabilities in light of the identified community needs and interests, the consultant
will be able to determine what technical changes must be made to the existing
cable system (i.e., upgrade or rebuild) in order to meet those community needs
and interests. (See discussion of technical audit above.) Finally, the consulting
team will consider community demographics and new developments by the cable
industry in other locales. Based on this information, the team will assess:
a. Rebuild or Upprade ri annel Ga a ity Remirements. An assessment
will be made as to the degree of upgrade or rebuild which would be necessary to
provide services at a level indicated by the needs assessment results.
b. Two wak Interactive Service Requirements, Voice Video. Data.
Many modern urban cable systems today have the activated capacity to provide
two -way services such as data and voice transmission, and video transmission
from remote locations. Some requirements are related to institutional uses.
However, others are required for effective delivery of services to individual
subscribers. The needs assessment process will include introductory information
regarding two -way and advanced cable service, and, through the workshop
process, should result in the initial identification of two -way and advanced video
services that might be significantly used on the cable system by ordinary
subscribers.
18
Many cable systems
C.
are being designed to enable subscribers to choose the package o cabl doevices
desired, and to ensure that those services are delivered in a way not
interfere with the use of VCR's, home video game terminals and the like. For
example, most new or upgraded systems today include an up-to -date technology
for pay - per -view programming. There are many ways of accomplishing pay -per-
view. Some cable systems utilize two -way addressable converter technology for
instant, push -button program choice. Others require a subscriber to call the cable
company on the phone for an individual program. Still others offer a package of
programs over a period of time which are activated through a decoder mailed to
the subscriber by the company, or through switching equipment manipulated by
cable company personnel in a box outside the subscriber's home. We believe it is
reasonable to request that appropriate technology be provided in a franchise which
will optimize the ability of subscribers
technical ev ew of the information
the�esult
choice of packages. Following the
of the needs assessment, we propose to formulate the substance of proposed
franchise provisions regarding technology to maximize consumer choice.
d. Iechnical Standards. The Federal Communication Commission has
provisions that control technical standards fora standards ds appropr cities and
cable companies to agree to some technic
design and community needs and to place them, with provision for review and
revision, in the cable franchise agreement. Franchise provisions requiring periodic
technical tests by the companies and good reporting to the franchising authorities
are also advisable. We propose to develop appropriate technical standards and
supporting franchise provisions as part of the renewal project.
D liv .rabies: Questionnaire results, along with other information provided
by the process, will be compiled and translated by the
consultants into reports and recommendations to serve as the
basis for formulating the substance of proposed provisions for
new franchise documents to be used in negotiations with the
- cable company.
W
• • • • • • • / 1 • • / all1111111 01 M6,111111 ►I rare MM / / - / •
• T To 1 1
The Buske Group team will work with the City to identify the specific
elements which ought to be included in any future franchise and assist in
establishing the City's negotiating position. More specifically, we will:
/- / ••1• ••• • / / Mww= MR • •• 1
Based upon the results of the needs assessment process, The Buske
Group, in conjunction with other members of the consulting team, will prepare a
document for City approval containing recommendations regarding the elements
deemed suitable for inclusion in a new franchise and model franchise documents.
This document may include proposed positions regarding:
System upgrade, rebuild and extension.
• Construction and design.
Technical standards.
• Programming.
Management and staffing.
• Customer service.
Local origination programming.
• PEG access support.
• Other services.
We will work closely with the designated City /County legal staff to
translate these recommendations into franchise ordinance language. The Buske
Group proposes to develop the initial draft ordinances (i.e., Cable Communications
Ordinance and Franchise Ordinance) and provide them to the designated
City /County legal staff for review. This approach has proven to be very cost
efficient for many local governments in that (1) it requires attorneys to spend less
time on the project and (2) the jurisdictions benefit from access to our extensive
file of franchise agreements from other cities.
20
b.
In addition to franchise provisions establishing general service
requirements, the jurisdictions must develop ordinance provisions to enable them
to monitor and enforce the franchise. These provisions may be subject to
franchise negotiations, and thus would be developed before negotiations begin.
The Buske Group team has wide experience in developing provisions
and procedures for monitoring the compliance of cable operators within the
requirements of franchises. Ms. Buske has been involved in monitoring
compliance and drafting ordinance language in cities such as Salina, Kansas;
Oakland County, Michigan; West Sacramento, California and Wadsworth, Ohio.
Mr. Jolin has been directly involved in developing compliance models for
Multnomah County, Oregon. The consulting team will assist the Morgan Hill
Group as required in recommending ordinance provisions
Which •�` ^ - -* *�1° C�.etom Will
h• .. D.nvicinne Fn�';rc ■a -yam-- -
C.
hP Ungraded in the FutlitE.
Since franchises are typically renewed for long periods of time --
often 10 -15 years -- community needs and available technology are certain to
change during the term of franchises. A review ds period revisit
every five adequacy years �s
system technology and performance stand
appropriate, and will likely be proposed 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. We propose to
develop appropriate re- openers in preparation for any franchise negotiations.
When the above tasks are completed, the Morgan Hill Group would
be ready to proceed with informal negotiations. The procedures and process for
such negotiations are described later in this proposal. If informal negotiations are
not successful, it will be necessary for the Morgan Hill Group to proceed with the
formal renewal process (see later section of this proposal).
d. Dra ft Model Franchise and Ordinance
Based upon the input gathered and analysis undertaken, The Buske
Group's legal experts will prepare draft franchise agreement and ordinance
language for the member jurisdictions of the Morgan Hill Group. We are assuming
in this proposal that the substance and form of franchise agreements and
ordinance will be identical for all member jurisdictions of the Morgan Hill Group.
D .liv _rables: Model franchise agreement and ordinance containing goals
and recommendations developed through tasks conducted
throughout this process.
21
E.
The Buske Group will assist the Morgan Hill Group by analyzing the
structure and organization of a cross - section of intergovernmental authorities
which deal with cable communications administration on behalf of their member
jurisdictions. This analysis will result in a suggested nnnoina intergovernmental
structure for joint oversight of cable communications systems serving member
jurisdictions of the Morgan Hill Group. The recommendations will identify funding
sources, staffing levels, and legal relationships which will consider the special
needs of the Morgan Hill Group. It should be noted that some of the work which
IDLY be done under Phase I of this project in order to determine the appropriate
structure for uniting the jurisdictions during the process of renewing the franchise
agreements with Falcon, will be utilized during this task.
r) iverablea: A model administrative structure for ongoing joint cable
administration.
All of the interim reports and information gathered during the preceding
tasks will be joined into one major report. The report will contain an executive
summary as well as the complete reports, as appropriate, for each of the interim
tasks undertaken.
The report will be prepared in draft form and provided to representatives of
the member jurisdictions of the Morgan Hill Group and the Cable Television
Franchise Renewal Task Force.
Based upon input received, the report will be prepared in final form and a
presentation provided to the City Council or County Board of each jurisdiction. In
order to control costs, the consultant suggests that two oral presentations be
provided since the various member jurisdiction seem to cluster into two groups:
(1) Morgan Hill, Gilroy, and Santa Clara County, and (2) San Juan Bautista,
Hollister, and San Benito County.
Deliverables: Final report and presentation
22
Morgan Hill Group Phase III
I •2 • • • - i
The Buske Group team members have led many successful negotiations
for original franchises, franchise renewals, and transfers. They have also worked
ects
together in various combinations embers have'aed otion
nlewhich they Franchise ha veobeen
which The Buske Group team m
important participants include negotiations in Salina, Kansas; West Sacramento,
California; Santa Rosa, California; Kansas City, Kansas; Gillette, Wyoming;
Thurston County, Washington; and companies (e.g., e.g., TCInPost- Newsweek9 Viacom,
have involved several major cable p an es
and many others). We propose to bring the lessons of these experiences to the
Morgan Hill Group's process, to assist in planning, organizing, conducting and
facilitating negotiation sessions with Falcon.
Subject to review by the Morgan Hill Group, we recommend a process
consisting of the following elements:
Form the negotiating team, including selected representative (s)
organ Hill Group staff and legal counsel (optional), Principal
consultant, and possibly others. Under this task we have included
two budget options. Budget Option 1 includes the costs associated
with having The Buske Group lead consultant Sue Buske and attorney
Joe Van Eaton present at all negotiating sessions. Budget Option 2
includes costs associated with having Ms. Buske serve as lead
consultant and having Mr. Van Eaton advise but not be present during
negotiating sessions.
Have preparatory meetings with cable company team to identify major
areas needing discussion in negotiations, agree upon a general
timetable for completion of major areas of discussion, settle on
meeting logistics and format, and specifically schedule future
meetings. We tentatively suggest that the Morgan Hill Group attempt
to complete negotiations in five two -day sessions or ten one -day
sessions.
23
• Request written proposals from Falcon on the various elements of the
services, equipment, and facilities which it proposes to provide during
and term of any new franchise agreement. Evaluate those proposals
as part of the negotiating process. The key elements typically
include: (1) system rebuild or upgrade; (2) PEG access and
community uses; (3) customer service. standards; (4) reporting; (5) re-
openers; (6) penalties, bonding, insurance, and (7) comments on draft
model franchise.
Hold meetings to reach agreement on any necessary modifications to
the Morgan Hill Group's proposed franchise elements, which will have
been prepared following the needs. assessment process. Wherever
possible, the Group's team would take the initiative to provide drafts
of recommended language changes. Every effort should be made to
prepare agendas and drafts of proposed revisions far enough in
advance of meetings to be able to circulate them to the Group's team
members for comment and approval, and then to the cable company
team for review.
• Use the forum of the_ negotiating meetings to request, review,
evaluate, discuss, and, if possible, approve information from the cable
company regarding its technical, legal and financial qualifications.
• Hold a public hearing to afford the public the opportunity to comment
on the substance of the agreements, and the drafts of documents
produced. This would occur when the Morgan Hill Group determines
that the negotiations have served their purpose, and favorable
agreement has been reached. Such a hearing would be designed to
satisfy federal Cable Act requirements.
A major strength of The Buske Group team is the participation of
exceptionally knowledgeable and experienced specialists who will lend expertise to
the team and assist the Morgan Hill Group in developing appropriate responses to
legal, financial and technical claims made by Falcon. The qualifications of the
consulting team are described in detail in Part II of this proposal. Briefly:
Sue Buske has over twenty years of experience in the cable television
field and has spent the last thirteen years advising cities regarding cable television
matters. She has served as a franchise consultant with the Cable Television
Information Center; as Executive Director of the National Federation of Local Cable
Programmers, and (for the past six years) as President of The Buske Group. Ms.
Buske will serve as lead consultant to the Morgan Hill Group and will assist the
24
City in devising a specific renewal procedure, ass assessments and a'll work related to
other meetings as appropriate, conduct needs
PEG access, and coordinate all activities of the franchise renewal team.
Stephen Jolin, Ph.D., has been involved in cable franchise renewal
negotiations in many communities throughout the Northwest. He has been
significantly involved in the development he institutional �f Portland,
Multnomah County and Washington County, Hseved as
consultant to the Multnomah Cable Regulatory oa subsidiary of Houston Industries. He
Commission transfer
of ownership of Rogers Cablesyste
recently completed an analysis of
concable
s financial position, /exam ne complaint and ' files
Wyoming. Dr. Jolin will assess
and customer service standards and provide advice during negotiations.
Joseph Van Eaton, specializes in representing local governments and non-
profit groups on a broad range of communications and anti - trust- related matters.
His work has involved representation of communities in cases involving First
Amendment and antitrust challenges to local franchising authority. He filed one of
the first post 1984 Cable Act petitions which i I service lea the chief egaltadvise9 to the
basic cable service rates. Mr Van Eaton
franchise renewal process.
The Buske Group's consulting engineer, Clifford Schrock, specializes in
providing telecommunications engineering support to local government and public
agencies. The firm has assisted many municipal governments, including Seattle
and Thurston County, Washington, in refranchising cable television systems, proof
of performance testing and design review. Mr. Schrock is also an expert in
institutional network applications in the video, voice, data and telemetry areas.
The Buske Group's opinion polling experts, Jan Lesher and Tom Wilson,
have a unique blend of expertise in polling, governmental affairs and public policy.
Ms. Lesher has been involved in cable communications since 1979, having worked
as a cable regulatory officer for the City of Tucson, Arizona; as Vice President of a
major MSO, and the Executive Director of a nonprofit public access management
organization. She served as a member of the International City Management
Association Telecommunications Task Force and the US Conference of Mayors
Cable Task Force. Mr. Wilson has many years of experience in the field of public
opinion polling. He was an Aide to the Mayor of Tucson, with responsibilities such
as research, analysis and formulation of appropriate policy recommendations on all
aspects of city government. Prior to his work with the City, Mr. Wilson served as
Research Director for the largest full service advertising agency in Arizona.
25
If informal negotiations fail, it will be necessary to prepare an RFRP in
order to solicit a proposal from Falcon Cable under the formal renewal provisions
of the Cable Act. Based upon work done during the renewal process, The Buske
Group will draft an RFRP, advising Falcon Cable . of the services and technical
requirements that the jurisdictions are seeking. The RFRP will require the cable
operator to provide specific information regarding its customer services, technical
standards, proposed upgrade or rebuild of the cable system, programming
category options, public, educational, and government access, and its other cable -
related offerings. As part of the RFRP document, cities frequently include a copy
of the proposed franchise agreement with a request that the cable operator
indicate any comments it may have regarding the proposed franchise agreement.
We propose to follow this procedure.
• • . : . --
The Buske Group team will analyze the renewal proposal received to
determine whether the proposed cable service would:
• Satisfy local needs and interests, including PEG access.
• Provide maximum benefits available under local, state, and federal
law.
• Provide user - friendly equipment.
• Provide state -of -the art technical equipment and resources.
• Ensure good service and provide for enhanced services and
technological improvements.
• Be feasible in light of Falcon's technical, legal, and financial
capabilities.
• In all other respects provide satisfactory cable service to Morgan Hill
citizens.
The team would then consult with the City, explaining the strengths and
weaknesses of the renewal proposal.
26
Deliverables.. The Buske Group team will provide written recommendations
on all essential elements of the franchise and prepare initial
drafts of the Cable Communications ordinance and franchise
agreement. If it becomeere necessary to issue an RFRP, the
that document and evaluate the
consulting team will prep
proposal submitted by the cable operator. The consultant will
assist the Morgan Hill Group in the conduct of its negotiations
with Falcon Cable. The negotiating budget which has been
prepared anticipates either ten one -day or five two -day
negotiating sessions with Falcon, and preparation of
necessary documents summarizing the results of the
negotiation meetings.
27
Ill. BUDGET AND FINANCIAL TERMS AND CONDITIONS
Cost projections for the franchise renewal process are based upon a "menu"
approach. This permits the Morgan Hill Group to determine which tasks it wants
to be provided by The Buske Group. We have prepared projections for doing the
work outlined in this proposal and estimate that the work can be completed for a
fee ranging from $129,259 to 8145,046, depending upon the amount of attorney
time utilized. However, if Falcon Cable is uncooperative and /or the Morgan Hill
Group must complete the formal renewal process as outlined in the Cable Act, we
estimate the cost to be somewhat higher.
The proposal described herein anticipates that the jurisdictions represented
in the Morgan Hill Group will formalize their relationship as a Joint Powers
Authority or agree to some type of Memorandum of Understanding shortly after
selecting a consultant. This is a very important assumption. If this does not
happen, the number of meetings that the consultant must attend during certain
phases of this project may increase significantly. In that event, it will be
necessary for us to revise the cost estimates on this project.
The Morgan Hill Group may discover during the franchise renewal process
that they would like work performed that was not anticipated in the RFP. We
would be happy to provide such assistance. It would be billed at the hourly rates
described below. The high level of skill and experience of team members will
ensure that the hours we spend on this project will be effective. The costs
associated with the project may be lower if the City should decide to limit its
review of certain areas, or to perform the review itself. Some or all of these costs
may be recoverable from Falcon Cable if the City devotes sufficient resources to
preparation at the beginning of the renewal process.
We have prepared a budget which contemplates participation by designated
City /County staff and Attorney(s). We would be pleased to assume a greater or
lesser role if the Morgan Hill Group wishes.
The estimated hours and costs for each task of the project are set forth in
the proposed project budget on the next page. The cost projections assume that
we will be working closely with City /County staff and Attorney(s). Please see the
notes following the budget which explain certain assumptions used in our
estimates.
46
In order to provide the Morgan Hill Group some assistance in planning the
renewal process based upon our understanding of the current cable environment,
the expiration date of the Morgan Hill franchise, and a sensitivity to cost, we
suggest the following schedule (based upon our assumption that the City /County
works on a July 1 - June 30 fiscal year basis):
Fiscal Year 94/95
Phase 1
Phase 2 (Tasks A, B, C)
Fiscal Year 95/96
Phase 2 (Tasks D, E, F)
Phase 3
The RFP indicated a desire on the part of the Morgan Hill Group to have a
estimate of the amount of staff time necessary to assist the consultants in this
process. We would estimate that over the term of the project, a total of 25% of a
full time person would be required. This would and include C' combination Attorney(s) etime.
intermediate level management, City Manager, City/County
This time would have "peaks and valley" with very small amount of time required
at certain times during the process and more significant amounts of time required
at other points. We estimate that during the process of conducting community
focus groups and again during negotiations, the staff time consumption would be
at its highest levels.
47
PROPOSED PROJECT BUDGETI
Task
Consultant12)
Prof.
Hours
Fees
Costs
Total
PHASE 1
A. Review Franchise,
Buske
55
$4,125
$600131
$4,725
Develop Renewal Plan,
Van Eaton
27
$4,860
585
$9,585
, $9
Prepare Responses
Explore JPA
PHASE 2
A. Technical Audit
Schrock
120
$9,000
$1,125(3)
$10,125
Buske
30
$2,250
$2.250
$ 12,375
B. Review Past Performance
1. Franchise Compliance
Buske
100
$7,500
$500(3)
$8,000
$3,600
Van Eaton .
20
$3,600
2. Franchise Fees
Buske
10
120
$750
$10,200
$100(4)
$200
$850
$10,400
Jolin
3. Financial Review
Buske
5
40
$375
$3,400
$ 1,125(5)
$375
$4,525
Jolin
4. Customer Service and
Buske
50
$3,750
$450131
$4,200
Complaints & Customer
VanDalsen
30
$1,950
$1,950
Service Standards
Option 1: Customer
Satisfaction Survey
Wilson /Lesher
(470 interviews @ $16.00)
$7,520
$80016)
$8,320
5. Review PEG Access
Buske
50
$3,750
$250(4)
$4,000
C. Identify Community Needs
and Interests(6)
1. Organize and
Buske
80
$6,000
$750131
$6,750
Conduct Workshops
2. Identify System
Buske
30
$2,250
S300(4)
S2,550
Design Needs
Schrock
5
$375
D. Develop Franchise
Van Eaton
84
$15,120
$400(4)
$100(3)
$15,520
$2,350
and Ordinance181
Buske
30
$2,250
48
PROPOSED PROJECT BUDGET (continued)
PHASE 3 (10)
A. Prepare for and Conduct Negotiations
O i
(an Faton in all
1. Negotiate and Advise
During Negotiations
Consultant12)
�Of'
Hours
Fees
Costs
Total
Task
5. Evaluate Proposal
Price Quote Provided Upon Request
E. Evaluate Structures
Buske
50
$3,750
$3,600
$400(4)
$300141
$4,150
$3,900
for Ongoing Reg.
Van Eaton
20
F. Prepare Final Report
Buske
50
$3,750
$300
$4,050
and Presentations
PHASE 3 (10)
A. Prepare for and Conduct Negotiations
O i
(an Faton in all
1. Negotiate and Advise
During Negotiations
negotiations)
Buske 145 $ 10,875
Van Eaton 111 $19,980
$ 1,000(3) $ 11,875
$6,000(31 AM 855
• r ten adykas
2. Negotiate and Advise
During Negotiations
but not at all negotiations 1
Buske 180 $13,500(10)
Van Eaton 40 $7,200
$1,000(3)$14,500
$2,000(3) S9.2
$23,700 0
(Optional) If Informal Negotiations Fail:
4. Prepare RFRP Price Quote Provided Upon Request
5. Evaluate Proposal
Price Quote Provided Upon Request
FOOTNOTES:
1. The project budget anticipates the consultants using telephone conference calls to participate in
routine meetings of the meetings cities.
he project costs would have tt the consultant
to ac omodate travel
present for routine meet g
time and travel expense reimbursement.
2. Fees are estimated 65 /hour; hourly basis:
n $180/hour. $75/hour; John
may Sbe performedrbyk
Van Dalsen $ lower cost
personnel working under supervision of principal team members.
3. Includes travel, lodging, meals, and associated costs such as clerical, telephone, postage.
4. Clerical, phone, and postage.
5. Footnote-4 applies except that if Falcon Cable is cooperative, no travel land associated costs)
will be necessary for Mr. Jolin.
6. Additional long distance charges. Jurisdictions to notify Buske Group as to preferred approach
to surveying.
7. Does not anticipate Buske in attendance at public hearings in each jurisdiction during early
phases of renewal process.
49
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