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RESOLUTION NO.
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH OMNICOM, INC. TO PERFORM CONSUL-
TING SBRVICES RELATING TO THE PROVISION OF SPECIFIC ENGINEERING
COMMUNICATIONS SERVICES IN SUPPORT OF THE PROJECT TITLED "WORK
PLAN FOR THE CITY'S 800 MHZ RADIO COMMUNICATION SYSTEM AND
MOBILE DATA TERMINAL SYSTEM".
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino is
hereby authorized and directed to execute on behalf of said City
an agreement with Omnicom, Inc. to perform consulting services
relating to the provision of specific engineering communications
services in support of the project titled "Work Plan For The
City'S 800 MHZ Radio Communication system and Mobile Data Term-
inal System", a copy of which is attached hereto marked Exhibit
"A" and incorporated herein by reference as fully as though set
forth at length.
SECTION 2. The authorization to execute the above
referenced agreement is rescinded if the parties to the agree-
ment fail to execute it within sixty (60) days of the passage of
this resolution.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at an
meeting thereof, held on the
, 1990, by the following vote,
day of
to wit:
IIIII
IIIII
September 10, 1990
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RESOLUTION AUTHORIZiNG AN AGRJ:;J::MJ::N'l' W.l.'l'tl UMN.l.CUM,.l.NC. 'I'U k'J:;KtU~
PERFORM CONSULTING SERVI<":ES. ",
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27 Sept. 10, 1990
COUNCIL MEMBERS
ESTRADA
REILLY
FLORES
MAUDSLEY
MINOR
POPE-LUDLAM
MILLER
. "
AYES
NAYS
ABSTAIN
CITY CLERK
The foregoing resolution is hereby approved this
day of
, 1990.
W.R. HOLCOMB, MAYOR
city of San Bernardino
Approved as to form and legal content:
JAMES F. PENMAN
City ~torney
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by: ~ J.r~
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AOR E EO N T
THIS AGREEMENT is made and entered into this
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day
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of
, 1990, by and between the CITY OF SAN BERNARDINO,
2 a municipal corporation, 300 North "0" Street, San Bernardino,
3 California 92418, (herein referred to as "City"), and OMNICOM,
4 INC., 325 John Knox Road, suite E-204, Tallahassee, FL
32303
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(herein referred to as "Consultant).
city and consultant agree as follows:
1. General OescriDtion of Work to be Done.
City hereby engages Consultant, and Consultant hereby
accepts such engagement,
to perform
the services herein
described for the compensation herein provided.
Consultant
11 hereby assures and covenants to City that they have the
12 qualifications, experience and facilities to properly perform
13 said services, and hereby agrees to undertake and complete the
14 performance thereof for the compensation herein provided.
15 2. Term.
16 The term of this agreement shall commence on execution of
17 this agreement by both parties. The anticipated term of the
18 agreement is 2 years and end September 17, 1992. However, this
19 agreement may be extended on a month-to-month basis for a
20 maximum of six (6) additional months upon the express written
21 consent of Consultant to such extension and the approval thereof
22 by the Mayor. However, if the term of the agreement is
23 increased, there will be no change in the maximum total
24 compensation.
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3. Payment and provision for Payment
A. Maximum Compensation
27 (1) Maximum total compensation to be paid under this
28 agreement shall be $8,863 for the development of the long range
09/11/90
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() radio communication Pl<=) and ~,724 for the development o:>the
Mobile Data systems plan as outlined in Consultant's cost
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proposal, attached hereto, marked Exhibit "B".
Payment to Consultant for services provided under this
3 agreement shall be on a monthly basis with project costs iden-
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tified by Consultant in four expense categories:
direct en-
gineering expense;
perdiem ,expense;
travel;
general
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Administrative expense; and profit/fee expense.
B. Manner of Compensation
(1) The Consultant shall submit an invoice for pay-
ment to the City Administrator's office in such manner that Con-
sultant shall be paid monthly.
(2) Consultant shall assume and pay all out-of-pocket
12 expenses and costs of performing services under this agreement
13 except as otherwise specifically provided herein, and city shall
14 not be liable for any such costs and expenses.
15 4. General DescriDtion of Work to be Done.
16 city hereby retains Consultant to perform appropriate
17 communications surveys; needs assessments, analyses, design &
18 comprehensive planning necessary to meet the requirements of the
19 City of San Bernardino as it relates to the development of a
20 comprehensive Radio Communication Plan.
21 Included, will be the development of a comprehensive plan
22 for Mobile data terminals involving needs assessments, inter-
23 views, design, resolving all FCC licensing issues and preparing
24 a statement of work. The optimum system configuration(s) that
25 will meet the existing and long term communications requirements
26 of the City of San Bernardino will be identified.
27 The result will be the provision of both short and long
28 term comprehensive solutions to the City of San Bernardino
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communication system n~s. c:> ~
5. Amendments.
This agreement may be amended or modified only by written
agreement executed by both parties.
6. Assianment.
Consultant's rights under this agreement shall not be
assigned by Consultant to any other person, firm or corporation
without the prior written consent of the city.
7. RelationshiD of Parties.
Consultant is acting as an independent contractor, and
not as an employee of the city. In the performance of personal
services pursuant to the provisions of this agreement, Consul-
tant shall not be supervised, directed, or under the control or
authority of any city officer or employee, except and to the
extent as may be expressly or implicitly required by the terms
and provisions of this agreement. Any direction or control so
required under this agreement shall be limited to broad objec-
tives or goals of the project or program to be accomplished and
not to the details and procedures to accomplish such objectives
or goals. Consultant shall not be obligated to conform to the
supervision or direction of City officers or employees which are
not authorized herein. changes or modifications of said objec-
tives and goals may be made by written recommendation of either
party subject to the concurrence of the other party in writing.
8. Hold Harmless.
Consultant shall indemnify and hold harmless, the city,
its elective and appointive boards, commissions, officers,
agents and employees from any liability for damage, personal
injury or death arising out of any willful or neg1ig~nt act,
error or omission of the Consultant incidental to the
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<:) performance of the con<:1tantl~rofessional services unde~his
agreement. Neither Consultant nor any of its subconsultants
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will be liable under this section for damage, personal injury or
death directly caused or resulting from the sole negligence of
the City or any of its elective and
appointive boards,
commissions, officers, agents and employees.
The Consultant shall not commence any work pursuant to this
agreement until all insurance required under this Section has
been obtained and such insurance has been approved by the city.
The Consultant shall maintain during the term of this Agreement
the following insurance:
A. Automobile Liability Insurance covering all owned,
non-owned and hired vehicles used in connection with the work in
an amount not less than $300,000 combined single limit per
occurrence for bodily injury and property damage.
B. Professional Liability Insurance in the amount of
$250,000 with deductible per claim, if any, not to exceed ten
percent (10%) of the limit of liability providing for all sums
which the Consultant shall become legally obligated to pay as
damages for claims arising out of the services performed by the
Consultant or any person employed by the Consultant in connec-
tion with this Agreement.
C. Public Liability Insurance, on a comprehensive basis,
in an amount not less than $1,000,000 combined single limit per
occurrence for bodily injury and property damage.
The policy
24 must be endorsed to
25 additional insured.
26 The Consultant
27 the city prior to the
show the city of San Bernardino as
shall furnish certificates of insurance to
commencement of operations, which ~ertifi-
,
28 cates shall be effective without thirty (30) days prior written
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notice to the city. 0 0 J
9. Attornev's Fees.
In the event an action is filed by either party to
enforce rights under this agreement, the prevailing party shall
be entitled to recover reasonable attorney's fee in addition to
any other relief granted by the court.
10. Terminated bv citv.
Notwithstanding any other provision of this Agreement,
the city, by notifying Consultant in writing, may terminate all
or a portion of the services agreed to be performed under this
Agreement with or without cause. Consultant shall be given five
(5) days written notice for failure of Consultant to perform
obligations under the contract in a satisfactory manner, and
thirty (30) days written notice if termination is for other
reasons. Notice shall be mailed posted to the address set forth
herein for the receipt of notices. In the event of any
termination, Consultant shall have the right and obligation to
immediately assemble work in progess and forward same to the
city. All charges outstanding at the time of termination shall
be payable by the city to Consultant within thirty-five days
following submission of final statement by the Consultant.
11. AcceDtance of Final pavment Constitutes Release.
The acceptance by Consultant of the final payment made
according to the terms of this Agreement shall operate and be a
release to the city, and every employee and agent thereof, from
all claims and liabilities to Consultant for anything done or
furnished for or relating to the work or services, or for any
act or failure to act of the City relating to or arising out of
work and this agreement.
12. Acknowledqement.
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<:) (a) Consultant ~owle~s and agrees that city iS~he
sole and exclusive owner of all rights and remedies in and to
1 certain confidential ideas and secrets concerning the operations
2 of city, any products or information resulting, in whole or in
3 part, from the work performed under this agreement, and all
4 products or information derived or to be derived from said work,
5 regardless of whether city's or Consultant's work is subject to
6 patent, copyright, or either protection.
7 (b) In the event that any work performed under this
8 agreement is or becomes the subject of a patent application,
9 patent, copyright, or other rights under the laws of the united
10 states or any other country, Consultant agrees and understands
11 that city shall have all rights and remedies available to city
12 under the law as a result of such patent applications, patents,
13 copyrights, or either rights.
14 13. Confidentialitv and Non-Disclosure.
15 (a) Consultant acknowledges that during the Consulta-
16 tion, Consultant has had and/or shall have access to and has
17 become and/or shall or may become aware of secret information.
18 Consultant agrees to hold in confidence all such secret infor-
19 mation disclosed to Consultant or developed by Consultant in
20 connection with the work performed under this agreement, either
21 in writing, verbally, or as a result of the Consultant except:
22 (1) Information which, at the time of disclosure,
23 is in the public domain or which, after disclosure, becomes part
24 of the public domain by publication or otherwise through no
25 action or fault of Consultant; or
26 (2) Information which Consultant can show is in its
27 possession at the time of disclosure and was not acquired,
28 directly or indirectly, from city;
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(3) Info~tion <:lch was received by consJ:)ant
from a third party having the legal right to transmit that in-
formation. Nothing in this paragraph is intended to nor shall
make confidential records or information which is otherwise made
open to public inspection by law.
(b) Consultant shall not, without the written permission
of the City Administrator, use the secret information, which
Consultant is obligated hereunder to maintain in confidence, for
any reason other than to enable Consultant to properly and com-
pletely perform under this agreement.
(c) Consultant shall not reproduce or make copies of
the secret information or Consultant's output, except as re-
quired in the performance of this agreement.
Upon termination
of the agreement for any reason whatsoever, Consultant shall
promptly deliver to city all correspondence, drawings, blueprint
manuals, letters,
notes, notebooks,
reports, flow-charts,
programs, proposals, or documents concerning city.
(d) Except as may be required for performance of this
agreement, Consultant shall not, during or at any time subse-
quent to this agreement, unless city has given prior written
consent, disclose or use the secret information or engage in or
refrain from any action, where such action or inaction may
result (1) in the unauthorized disclosure of any or all such
secrets to any person or entity; or (2) in the infringement of
any or all such rights.
(e) Consultant shall immediately notify city of any
information which comes to Consultant's attention which does or
might indicate that there has been any loss of confidentiality
of such secrets or breach of such rights.
(f) Consultant shall limit the disclosure of the secret
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information to those p~ns in<:)nsultant.s organization oc:lhe
city, who have a need to know all or part of the secret informa-
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tion. Consultant shall make such disclosure to each such person
limited to that portion of the secret information that that
person needs to know. Consultant shall inform each such person
of the provisions of this agreement regarding secret information
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person shall abide by those provisions.
14. Notices
Any notice required to be given hereunder shall be deemed
to have been given by depositing said notice in the United state
mail, postage prepaid, and addressed as follows:
city:
Consultant:
Shauna Edwins, City Administrator
City of San Bernardino
OMNICOM, INC.
325 John Knox Road
300 North "0" Street
suite E-204
San Bernardino, CA 92418
Tallahassee, FL 32303
Nothing in this paragraph shall be construed to prohibit the
giving of such notice by personnel service.
15. Entire Aareement.
This contract constitutes the entire Agreement between
city and Consultant and may be modified only by further written
agreement between the parties.
IN WITNESS WHEREOF, this Agreement has been executed by
the parties effective as of the date and year first above
27 written.
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AGREEMENT WITH OMNICOM, INC. TO PERFORM
FOR THE CITY OF SAN BEt)RDINO. (':
CONSULTING SERVICES
;)
1 ATTEST:
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4 Rachel Krasney
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CITY OF SAN BERNARDINO, a
MuniCipal Corporation of
the state of California
By:
W.R. Holcomb, Mayor
CONSULTANT;
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9 Approved as to form
and legal content:
10 JAMES F. PENMAN
CITY ATTORNEY
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12 BY: ,.L 1 /~
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09/11/90 -9-
By:
OMNICOM, INC.