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R23C ITY �Y�„ H OFFICIAL FILE COPY CITY OF KENNEDALE RESOLUTION NO. 23 A RESOLUTION TOLLING THE 30 DAY DEADLINE FOR REVIEWING THE CABLE TELEVISION RATES OF THE CITY OF KENNEDALE. WHEREAS, the City of Kennedale has prescribed in Ordinance No. 43 the process for local regulation of the basic tier of cable television service provided by Sammons Cable Services, which includes established deadlines for submissions and decisions; and WHEREAS, additional time is required for determining if the rates submitted are within the Federal Communication Commission's permitted basic service tier charges; and WHEREAS, Ordinance No. 43 and the Federal Communications Commission's regulations allow for tolling the 30 day deadline for review of the FCC Form 393 rate submission for an additional 90 days beginning 4/15/94: NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS: SECTION 1. The City Council orders that the 30 day deadline to review the Form 393 rate submission by Sammons Cable Services is tolled for an additional 90 days beginning April 15, 1994. SECTION 2. The city attorney shall notify the company of this order by sending a copy of this resolution to the company be certified mail, return receipt requested. SECTION 3. This resolution shall take effect from and after its adoption, and it is accordingly so resolved. PASSED AND APPROVED this 14th day of April, 1994. APPROVED: }, .(�,/y�y'q�- /��) 4wo Mayor Bill Abbott ATTEST: Kathy Tu er, City Secretary CITY OF KENNEDALE t f P Y' 'U. C HA F'. T A R Y CUN I S` I AG'i 140 .._ — STATE OF TEXAS § COUNTY OF TARRANT § INTERLOCAL AGREEMENT FOR CABLE TELEVISION RATE REVIEW SERVICES This Agreement is made and entered into this day of , 199_ by and between the City of Fort Worth, hereinafter called "Fort Worth ", and the City of Kennedale, hereinafter called the "Contracting City ", both municipal corporations duly incorporated under the constitution and laws of the State of Texas, W I I H E S E T H WHEREAS, Chapter 791 of the Texas Government Code, the Interlocal Cooperation Act (the "Act "), authorizes political subdivisions of the State of Texas to enter interlocal cooperation agreements with each other regarding governmental functions and services as set forth in the Act; and WHEREAS, in May of 1993 the Federal Communications Commission . issued a report and order which authorized cities to become certified to regulate the basic tier of cable television rates; and WHEREAS, the Cities of Fort Worth, North Richland Hills, Hurst, Benbrook, Keller, Burleson, Mansfield, Lake Worth, Edgecliff Village, Haltom City and Kennedale (the "Cities ") have been working cooperatively to reduce the fiscal impact of regulating such rates; and WHEREAS, Sammons Communications will soon be making a cable rate filing with each of the Cities; and WHEREAS, the Cities desire to engage a consultant to review such cable rate filing and desire to share the cost of the consultant's services; NOW THEREFORE, for and in consideration of the promises and mutual covenants herein contained, and subject to the conditions herein set forth, Fort Worth and the Contracting City hereby agree as follows: 1 . Purpose The purpose of this Interlocal Agreement is to enter an agreement whereby Fort Worth will engage R.W. Beck and Associates ( "Consultant ") to provide professional services in reviewing Sammons Communications' cable rate filing and the Contracting City will reimburse Fort Worth for the Contracting City's share of the cost of the Consultant's services and will receive a copy of Consultant's report. 2 . T er This Agreement will be in effect from the date of execution hereof until September 30, 1994. 3. Services by Fort Worth Fort Worth agrees to provide the following services: a. Enter a professional services agreement with Consultant, a copy of which is attached hereto, marked Exhibit "A" and made a part hereof by reference. b. Review Consultant's monthly invoices and make monthly payments for Consultant's services and expenses as required by the professional services agreement. C. Advise representatives of the Contracting City when Consultant requests that Fort Worth provide legal assistance, additional information, data or documents to Consultant regarding the Contracting City. d. Monitor Consultant's performance to ensure that the work is completed in a timely manner. e. Provide the Contracting City with periodic status reports concerning the status of Consultant's work. f. Provide one copy of Consultant's written report and findings to the Contracting City. 4. Contracting City's Duties If requested by Consultant, the Contracting City agrees to provide any legal assistance, additional information, data or documents which are reasonably required by Consultant with respect to the Contracting City. 5 . Consideration A. The Contracting City agrees to pay Fort Worth the Contracting City's share of the actual compensation paid by Fort Worth to Consultant under the professional services agreement. The Contracting City's share shall be 0.584 percent of the compensation actually paid by Fort Worth to Consultant. This percentage represents the number of Sammons Communications subscribers in the Contracting City divided by the total number of Sammons Communications subscribers in all of the Cities listed on Page 1 -2- hereof. Attached hereto marked Exhibit "B" and made a party hereof by reference is a chart which lists each of the Cities, the number of Sammons Communications subscribers in each City and each City's share of Consultant's compensation. B. The Contracting City shall pay Fort Worth the Contracting City's share of Consultant's compensation as follows: (1) When the Cities receive a rate filing from Sammons Communications, the Contracting City shall, within ten business days thereafter, pay Fort Worth the following amount as the Contracting City's estimated share of Consultant's compensation: (a) $44..20 if Sammons Communications makes a benchmark rate filing; or (b) $169.43 if Sammons Communications makes a cost of service rate filing. These amounts are based on Con'sultant's estimate of $7,570 as Consultant's total compensation for review of a benchmark rate filing and $29,012 as Consultant's total compensation for review of a cost of service rate filing. Under the professional services agreement, the actual compensation required to be paid Consultant may ultimately be either more or less than Consultant's estimates. (2) Upon completion of Consultant's rate filing review and receipt of Consultant's final invoice, if it is found that the estimated share paid by the Contracting City to Fort Worth is insufficient to pay the Contracting City's actual share, then the Contracting City upon notice from Fort Worth will forthwith supplement such amount by an amount equal to the Contracting City's actual share of the cost of Consultant's compensation less the estimated share previously paid-by the Contracting City to Fort Worth. If the estimated share previously paid is more than the Contracting City's actual share of Consultant's compensation, as herein established, the excess amount will forthwith be returned by Fort Worth to the Contracting City. C. Payment hereunder shall be made from current revenues available to the Contracting City and to Fort Worth. 6 . Additional Parties Each of the Cities referred to on Page 1 hereof shall become a party to this Agreement by approving the terms and conditions of this Agreement and by fixing hereto the signature of its authorized representative indicating the date of approval by said City. This -3- representative indicating the date of approval by said City. This Agreement shall be executed in multiple counterparts which shall be signed by each of the Cities and Fort Worth. 7 . Severability Clause If any provision of this Agreement, or any application hereof, shall be invalid, illegal or unenforceable, the validity, legality and unenforceability of the remaining provisions and applications shall not in any way be affected or impaired thereby. 8 . Governing Law This Agreement shall be construed in accordance with and governed by the laws of the State of Texas. 9. Miscellaneous A. It is expressly understood and agreed that in the execution of this Agreement no party to this Agreement waives, nor shall be deemed to waive, any immunity or defense that would_ otherwise be available to it against claims arising in the exercise of governmental powers and functions. B. The undersigned officers and /or agents are properly authorized to execute this Agreement on behalf of the parties hereto, and each hereby certifies to the other that any necessary resolutions extending such authority have been duly passed and are now in full force and effect. C. By entering into this Agreement, the parties do not create any obligations, express or implied, other than those set forth herein, and this Agreement shall not create any rights in parties not signatory hereto. D. This Agreement contains all commitments and agreements of the parties hereto, and no other oral or written commitments shall have any force or effect if not contained herein. This Agreement may only be amended by a written document approved by all Cities which are parties hereto. -4- Witness the following Signatures and Seals: ATTEST: ,-Z, City Seqeetary CITY OF KENNEDALE By: (Signature) (T tle) APPROVED AS TO FORM AND LEGALITY: Lk cast City Attorney Gon'w�exct, 11�.:thori.zz:cion` Date: ATTEST: CITY OF FORT WORTH �tt the By: Z�\ City Manager APPROVED AS TO FORM AND LEGALITY: City Attorney -5- :RWB 201R R.W. Beck and Associates Engineers and Consutww PROFESSIONAL SERVICES AGREEMENT Date: &vember 9. 1 93 P.S.A. No. CLIENT: City of Fort Worth Cable Office Attention: Ms. Sue Winter ADDRESS: 1000 T'hrockmorton Fort Worth, TX 76102 PROJECT. Review of The Cable Rate Filing of Sammons Communications, PART I . Scope of Services R, W. Beck and Associates (the "Consultant") shall provide consulting services to the City of Ft. Worth, Texas (the "Client" or the "City') in connection with a review of the cable rate filing of Sammons Communications in accordance with the Scope of Services described in Attachment 1, atta ched hereto and made part hereof. PART II • Schedule To be mutually ag reed upon by the Client and the Consultant. PART III • Compensation (see Attachment 2 dated November 9, 1993). PART IV - Standard Provisions (see attached RWB Form 203R). PART V -- Special Provisions (none). Approved for CLIENT By: Title: By: Title: Approved for CONSULTANT By: Title: By: Title: Exhibit "A" ; .Scope of SWAM Attachment 1 November 9, 1993 SCOPE OF SERVICES FOR CITY OF FORT WORTH, TEXAS or The Cable Rat�Flllna Ot Sautmons Communica v , .TI ., , ne Scope of Services addresses both a benchmark filing and a cost of service filing by Samatons Communications since it is unknown which type of rate filing will be made. This project will provide the review of the benchmark or the cost of service, whichever filing is made by Sammons Communications. This scope includes only one trip to the City for the purpose of delivering and presenting the report Consultant will perform the following tasks in reviewing the benchmark rate filing. 1, Define minimum filing requirements ("]v1FRs ") for the cable operator to file in conjunction with the FCC Form 393. 2. Review the Form 393 filing for completeness, support, and compliance. with the 1viFRs. 3. Examine and verify support for rates in effect as of the filing and at 9/30/92. ¢, Examine support for channels provided in each tier as of the filing and at 9/30/92. 5, Examine support for the number of subscribers in each tier as of the filing and at 9/30/92. 6, Examine support for the franchise fee expense as of the filing and at 9/30/92. 7, Examine support for the GINT -PI. 8. Examine support for capital costs of equipment and costs of leased customer equipment. 9. Examine support for annual operating expenses associated with service installation and maintenance R. W. Beck and Associates Orlando, Florida 63 0:000W. W.. WOW COPE- r1 W ces for November 9, 1993 Seope of Servi Page The City of Fort Worth, Texas 2 equipment, 10. Recompute the Form 393 utilizing any changed or corrected inputs. 11. Prepare and file a written report (one copy) of the findings with the franchise authority. Consultant will perform the following tasks in reviewing the cost of service filing. 1, Define minimum filing requirements ( "MFRs") for the cable operator to file in conjunction with the FCC Form 393 and the cost of service support. 2. Review the cost of service filing for completeness, support, and compliance with the MFRS. 3, Examine and verify support for rates in effect as of the filing. 5. Examine support for number of subscribers in each tier as of the filing. 6. Examine support for franchise fee expense. 7. Examine support for rate base and recompute any differences. g. Examine support for the capital structure, return on equity, and overall rate of return. 9, Examine support for annual operating revenues. 10. Examine support for operating expenses and taxes other than income taxes. 11, Examine support for income taxes. 12. Examine support for the allocation of costs. R. W. Beck and Assoclares Orlando, Florida 63.D. Pr WORSCO.M.FrW "Scope of Services for 'The City of Fort Worth, Texas November 9, 1993 Ps ;e 3 13. Prepare the co py) of the findings report (one with the franchise copy) authority. 2, - -r d to be Provided by the City The City will provide for, and make available in a timely manner, all legal assistance necessary for completion of this project. Additionally, the City will make available or cause Sammons documents necessary to to co glee this project in a timely manner. �ailon, data and other 3. 9d itional Services Ile services detailed in Section 1 above identify the work to be performed as presently contemplated. Any additional services beyond the above defined Scope including any services identified in Section 2 that the City is unable to provide will be billed at our hourly rate plus employee related expenses and benefits times the multiplier of 2.4 plus expenses and travel costs. Orlando, Florida R W. Beck and Associates 6pD�0W,vr.W0RtSC0?LF W Compensation pAR'T III • Compensation Attachment 2 November 9, 1993 Upon submission of monthly invoices, the Client shall pay Consultant an amount equal to the actual hours of services furnished multiplied by the Consultant's established hourly salary costs, which include an allowance for personnel benofits, and a factor of 2.4. Additionally, the Client shall reimburse Consultant monthly (1) at cost plus 10 for services of any Special Consultant or Subcontractor and (2) at cost or then current rates for all expenses incurred by Consultant directly chargeable to services furnished under this Agreement. Such expenses shall include but are not limited to the following: (a) Long distance telephone expenses. (b) Services furnished by Consultant's computer center, other computer centers and Consultant's automated drafting systems, ap at the applicable rates as of the date of invoice. (c) Printing, reproduction and word processing, at the applicable rates as of the date of invoice. (d) Reasonable travel and living expenses for personnel. (e) Rentals, communications, furnishings and utilities for field offices. (f) Other direct expenses related to services furnished. Consultant's "Salary Costs" allow for basic salary and employee benefits, such as: life, accident, disability and medical insurance, sick leave, holiday and vacation pay, social security, workers compensation, unemployment compensation and pension retirement contributions. Basic salary per hour shall be twelve times current monthly salary for employees or current monthly drawings in lieu of salary for partners (exclusive of overtime, bonus or other profit participation payments), divided by 2,080. RWB-20R RM, BECK AND ASSOCIATES PART IV COMMEPCIAI. TERMS AND CQjY ITp_IONS r• x In the performance of savioes hereunder, Consultant is an independent contractor and shall not be considered an employee a gent or r eea specifically nta iv the Gient for Any Pu po Iderd'died Otherwise In the Scope Of Services, ills services psrfotmed by Consultant under this Agreement are solely for the benefit of Client, Nothing the a part of the Poison party to this Agraemartt• 2. Standard of Core The standard of care applicable to Consultant's services will be the degree o idle dilig O slonai an normally practiced by p g consultants performing the same or similar services. No other warranty or guarantee, expressed or implied, is made with respect to the services furnished under this Agreement and all Implied warranties are hereby disclaimed. 3. Scope and Laphedule Chances The proposed fees constitute Consultant's estimate of the effort and charges required to complete ths Scope of Services as Consultant understands it to be defined. services not expressly set forth in any Agreement are excluded from the scope• change alters the Scope of Services or affects the schedule or Consultant' s of he this s ,Cation l and shall promptly ratify Client Consultant's schedule and compensation shall be equitably adjusted. If the Consultant is delayed in performing its services hereunder by any act of war, force majeure or other circumstance beyond its control, then the schedule of performance shall be extended for the number of days as the occurrence delays performance and the compens adjuste lmts under the Agreement shall be equitably necessary, to compensate Consultant for any additional costs due to the delay. a. Financing har a for rate Pa meets It the Client fails to pay undisputed invoiced amounts within 3o days after delivery Of invoice, additional charges shall become due and payable at a rate e of ,.,A percent per month (or the maximum percentag allowed by law, whichever is lower) on " unpaid amounts. Any financing charges due from the Client on past due imglCes are outside Any maximum billing amounts established for this Agreement end shall not be Included In calculating the maximum. An paymw tt shall first be credited against any accrued Worsal. K the Client fitly to pay undisputed Irnelced amounts within so days after delivery of invoice Consultant, at as sole discretion, may suspend work hereunder without incurring any liability or we" airy right established hereunder or by law. LW 1 09M 7uiiT !RL'd7 Consultant shall maintain workers' compensation Insurance and employer's liability, plofstslonal liabaky commercial general IlablIRY (bodily injury and property damage) and comprehensive automobile liability (bodily Injury and property damage) insurance with each policy having maximum limits of not lees than st,000,om upon request, Consultant will provide Insurance cartilicatee to the Client 6. Ind mnirx:at' n F operation of applicable rights of contribution, Consultant agrees to Indemnity and hold harmless Merit and its officers, employees and partners from and against any and all loss, damage, claim or liability (including without limitation, reasonable attorneys' fees) by any third party to the extent arising oN of Consultant's negligent acts, effort or omissions, including claims made by employees of Consuftarit, Consultant explicitly and expressly waives any right it has to immunity under applicable industrial insurance laws with respect to any action against Client and agrees to assume liability for actions brought by its own employees against Client as provided above, Following operation of applicable rights of contribution, Client agrees to indemnity and hold harmless Consultant and Its partners. OftOfs, employees and subcontractors from and against any and all loss, damage, claim or liability (kaluding, without limitation, reasonable attorney's fees) by any third party to the extent arising out of Oient's negligent acts, errors or omissions, including claims made by employees of Client. Client explicitly and expressly waives any right It has to immunity under applicable industrial insurance laws with respect to any action against Consultant ant agrees to assuMw liability for actions brought by its own employees against ConsukaM as provided above. R.W. Beck and Associates t RWB -203M e The total aggregate IAbilky of the Consultant to the Client for any and all clekns, whether caused by negligence, errors, omissions, strict liability, breach of contract or contributlon or indemnity claims based on third party claims, shall not exceed proceeds of insurance required to be maintained under this Agreement 0 L• = Consultant shall not be liable to Client for any Interest, loss of anticipated revenues, earnings, profits, Increased expense of operations, loss by reason of shutdown or nort.operatlon due to late completion or otherwise or for any consequential damages, 0, rminat n nor does It control pricing factor$ used by other* to accommodate kndatron, oompell&6 bidding or market condition. Consvhant estimates of operation expenses and construction costs represent Its best judgment as an experienced and qualdloo professional engineer and are not a guarantee of cost. 02 61 MMMM -0 - 17 4 Any dispute or action under this Agreement valued at less than 5200.000 (exclusive of interest and cons) shall be mediated by a professional mediator, M mediation dons not settle the dispute, it shall be subject to arbitration under the rules governing commercial srbtration u promulgated by the American Arbitration Association. In any action to enforce or interpret this Agreement, the prevailing party shall be entitled to recover, as pan of its Judgment, reasonable attorneys' fees and essoclated necessary cost$, 5'li her party may terminate this Agreement at any time by giving seven (n days' written notice to the other party. In the evem of termination, Client shall pay Consultant for all services rendered to the date of termination plus reasonable expenses for winding down the servk>es. 10. Reuse of Work Products All documents, Including original drawings, estimates, spectfcations, field notes and other data prepared by Consultant under this Agreement (Work ProduCt*' are instruments of service and are and shall remain the property of Consultant. Consultant may, at its sole discretion, copyright any of the Work Products; provided that copyrighting will not restrict Client's right to use the Work Products as provided in this Agreement The Work Products shall not be used for purposes other than those set forth in this Agreement without the prior written approval of Consultant. if software is intended or expected to be developed under this Agreement, 8 software license agreement acceptable to Consultant shall be executed by Client. 11. ( nformation Provided by others Client shall provide to Consultant in a timely manner any information Consultant indicates is needed to perform the services hereunder. Consultant may rely on the accuracy of information provided by Client and its representatives. 12, Opinions of Cost 0onsultarA does not control the cost of labor, materials, equipment or services furnished by others, 14. Misceila us (a) This Agreement is binding upon and will Inure to the benefit of the Cliert and the Consultant and their respective successors and assigns, Neither party may assign its rights or obligations hereunder without the prior written consent of the other parry. (b) If any provision of this Agreement is invalid or unenforceable, the remainder of this Agreement S h a ll continue in full force and enact and the provision declared invalid or unenforceable shall continue as to other circumstances. (c) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas. (d) This Agreement may not be amended except by written amendment signed by both parties. 2 R.W. Beck and Associates °oLM.15e Sharing of Compensation for Services of R.W. Beck and Associates for l:aAle Rate KlllnQ Review Name of City Number of Sammons Subscribers Percentage of Share of Consultant's Compensation Estimated Share for Benchmark Rate Filing Estimated Share for Cost for Service Rate Filing Fort Worth 58,635 65.741 $4,976.60 $19,072.80 North Richland Hills 8 9.122 690.53 2 Hurst 5,908 6.623 501.36 1,921.46 Benbrook 4 4.564 345.50 1,324.10 Keller 2,500 2.802 212.11 812.92 Burleson 2 2.373 179.64 688.45 Mansfield 2,067 2.317 175.40 672.21 Lake Worth 700 0.784 59.35 227.45 Edgecliff Village 448 0.502 38.00 145.64 Halton City 4,093 4.588 347.31 1,331.07 Kennedale 521 0.584 44.20 169.43 Totals 89,197 100.00 $7,570.00 $29,012.00 EXHIBIT "B"