HomeMy WebLinkAbout1989-444
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RESOLUTION NO.
89-444
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH MUNICON, INC. TO PROVIDE LEGAL
ADVICE AND ANALYSIS WITH REGARD TO THE REVISION OF THE SAN
BERNARDINO MUNICIPAL CODE RELATED TO CABLE TELEVISION REGULATION
AND FRANCHISING CONSISTENT WITH THE CABLE COMMUNICATIONS ACT OF
1984 AND SUBSEQUENT COURT DECISIONS.
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 Municon, Inc. to provide legal advice and
analysis with regard to the revision of the San Bernardino
Municipal Code related to cable television regulation and
franchising consistent with the Cable Communications Act of 1984
and subsequent court decisions, a copy of which is attached
hereto marked Exhibit nAn 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referenced agreement is rescinded if the parties to the agree-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
regular
20th day of
1989, by the following vote,
November
to wit:
27 / / / / /
28 / / / / /
10/30/89
/
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RESOLUTION AUTHORIZING AGREEMENT WITH MUNICON, INC: RELATIVE TO
REVISION OF THE MUNICIPAL CODE RELATED TO CABLE TELEVISION
REGULATION.
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AYES:
Council Member Estrada, Reilly, Flores, Maudlsley,
Minor, Pope-Ludlam, Miller
NAYS: None
ABSENT: None
~ /If
. .. /~ 'i"'Zf:2d:t2?W
/city Clerk
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11 The foregoing
day of November
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Approved as to form
and legal content:
JAMES E. PENMAN
City Attorney
BY:
10/30/89
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A G R E E MEN T
THIS AGREEMENT is made and entered into this ..::::r6~ day
of f!~ by and between the
Ie ,/'~t. 'aJ , 1989, CITY OF SAN
5 BERNARDINO, a municipal corporation, 300 North "0" street, San
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Bernardino, California 92418,
(herein referred to as "City"),
7 and MUNICON, INC., 8466 N. Lockwood Ridge Road, suite 240,
8 Sarasota, Florida 34243, (herein referred to as "Consultant).
9 City and Consultant agree as follows:
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1. General Description of Work to be Done.
city hereby engages Consultant, and Consultant hereby
accepts such
engagement, to
perform the services herein
13 described for the compensation herein provided. Consultant
14 hereby assures and covenants to City that they have the qualifi-
15 cations, experience and facilities to properly perform said
16 services, and hereby agrees to undertake and complete the
17 performance thereof for the compensation herein provided.
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2. Term.
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The term of this agreement shall commence on execution of
20 this agreement by both parties. The anticipated term of the
21 agreement is 120 days. The consultant and City recognize that
22 time is of the essence in the performance of the agreement.
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3. Payment and provision for Payment.
A. Maximum Compensation.
1. Maximum total compensation to be paid under this
26 agreement shall be a minimum of seven thousand dollars ($7,000)
27 not to exceed a maximum of ten thousand dollars ($10,000).
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Payment to Consultant for services provided under this
agreement shall be on a monthly basis with estimates provided in
10/30/89
advance for phases of work.
1 B. Manner of Compensation.
2 1. The Consultant shall submit an invoice for
3 payment to the city Administrator's Office in such manner that
4 Consultant shall be paid monthly.
5 2. Consultant shall assume and pay all out-of-pocket
6 expenses and costs of performing services under this agreement
7 except as otherwise specifically provided herein and will bill
8 the City for reimbursement. Should the City request
9 Consultant's presence at any meeting, conference, hearing or
10 other proceeding related to cable, the City shall pay for all
11 associated costs including, but not limited to, travel, lodging
12 and meals.
13 4. General Description of Work to be Done.
14 City hereby retains Consultant to provide legal advice
15 and analysis with regard to the revision of San Bernardino
16 Municipal Codes related to cable television regulation and
17 franchising consistent with the Cable Communications Act of 1984
18 and subsequent court decisions.
19 5. Amendments
20 This agreement may be amended or modified only by written
21 agreement executed by both parties.
22 6. Assiqnment.
23 Consultant's rights under this agreement shall not be
24 assigned by Consultant to any other person, firm or corporation
25 without the prior written consent of the City.
26 7. Relationship of Parties.
27 Consultant is acting as an independent contractor, and
28 not as an employee of the City. In the performance of personal
services pursuant to the provisions of this agreement,
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Consultant shall not be supervised, directed, or under the cont-
I rol or authority of any City officer or employee, except and to
2 the extent as may be expressly or implicitly required by the
3 terms and provisions of this agreement. Issues of compatibility
4 and consistency with the City's Charter and ordinances shall be
5 discussed with the City Attorney. Any direction or control so
6 required under this agreement shall be limited to broad
7 objectives or goals of the project or program to be accomplished
8 and not to the details and procedures to accomplish such
9 objectives or goals. Consultant shall not be obligated to
10 conform to the supervision or direction of City officers or
11 employees which are not authorized herein. Changes or
12 modifications of said objectives and goals may be made by
13 written recommendations of either party subject to the
14 concurrence of the other party in writing.
15 8. Hold Harmless.
16 Consultant hereby agrees to, and shall hold City, its
17 elective and appointive boards, commissions, officers, agents
18 and employees, harmless from any liability for damage or claim
19 for personal injury, including death, as well as from
20 Consultant's operations under this agreement. Consultant agrees
21 to, and shall defend City and its elective and appointive
22 boards, commissions, officers, agents and employees from any
23 suit or actions at law or in equity for damages caused or
24 alleged to have been caused by reason of Consultant's
25 performance hereunder including any claims that may arise
26 against City by reason of Consultant's legal relationship with
27 City being categorized as other than that of an independent
28 contractor.
10/30/89
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9. Attorney'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 fees in addition to
any other relief granted by the court.
10. Terminated by city.
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 progress 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 Consultant.
11. Acceptance of Final Payment 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.
10/30/89
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12. Acknowledqment.
a. Consultant acknowledges and agrees that City is
the sole and exclusive owner of all rights and remedies in and
to certain confidential ideas and secrets concerning the
operations of City, any products or information resulting, in
whole or in part, from the work performed under this agreement,
and all products or information derived or to be derived from
said work, regardless of whether City'S or Consultant's work is
subject to patent, copyright, or other protection.
b. In the event that any work performed under this
agreement is or becomes the subject of a patent application,
patent, copyright, or other rights under the laws of the united
states or any other country, Consultant agrees and understands
that city shall have all the rights and remedies available to
City under the law as a result of such patent applications,
patents, copyrights, or other rights.
13. Confidentiality and Non-Disclosure.
a. Consultant acknowledges that during the
consultation, Consultant has had and/or shall have access to and
has become and/or shall or may become aware of secret
information. Consultant agrees to hold in confidence all such
secret information disclosed to Consultant or developed by
Consultant in connection with the work performed under this
agreement, either in writing, verbally, or as a result of the
Consultant except:
1. Information which, at the time of
disclosure, is in the public domain or which, after disclosure,
becomes part of the public domain by publication or otherwise
through no action or fault of consultant; or
10/30/89
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2. Information which Consultant can show is in
its possession at the time of disclosure and was not acquired,
directly or indirectly, from City;
3. Information which was received by Consultant
from a third party having the legal right to transmit that
information. 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.
shall not, without the written
Consultant
permission of the
Administrator,
City
the
secret
use
information, which Consultant is obligated hereunder to maintain
in confidence, for any reason other than to enable Consultant to
properly and completely perform under this agreement.
c. Consultant shall not reproduce or make copies of
the secret information or Consultant's
output, except as
required in the performance of this agreement. Upon termination
of the agreement for any reason whatsoever, Consultant shall
promptly
deliver
drawings,
to City all
correspondence,
blueprints, 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
subsequent 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
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10/30/89
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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 information to those persons in Consultant's organization
or the City, who have a need to know all or part of the secret
information. 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 and shall make reasonable efforts to insure that
each such person shall abide by those provisions.
g. To the extent not prohibited by state or federal
law, the City acknowledges that the work product provided by
Consultant shall be treated as proprietary, and not released or
given to another City or entity without the permission of the
Consultant. Moreover, under any circumstance, should any work
product be provided to another City or entity, it shall contain
a disclaimer that such work product may have no applicability or
enforceability in another City or entity.
14. Notices.
Any notices required to be given hereunder shall be
deemed to have been given by depositing said notice in the
united states mail, postage prepaid, and addressed as follows:
City
Consultant
Shauna Clark, City Clerk
City of San Bernardino
300 North "D" street
San Bernardino, Ca 92418
MUNICON, INC.
8466 N. Lockwood Ridge Rd
suite 240
Sarasota, Fla 34243
Nothing in this paragraph shall be construed to prohibit
the giving of such notice by personnel service.
10/30/89
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AGREEMENT WITH MUNICON, INC. RELATIVE TO REVISION.OF T~E
MUNICIPAL C09E RELATED TO CABLE TELEVISION REGULATION.
15. Entire Aqreement.
This contract constitutes the entire Agreement between
City and consultant and may be modified only by further written
agreement between the parties.
IN WITNESS THEREOF, this Agreement has been executed by
the parties effective as of the date and year first above
written.
ATTEST:
.#~tPJ!Z:~~? _-.--
~~~lark
City Clnl'k
Approved as to form
and legal content:
JAMES F. PENMAN
City Attorney
BY:~~
10/30/89
CITY OF SAN BERNARDINO
Municipal corporatio of
the state of calif~a
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BY: I/~~ /::;o:;:~~r
City of San Bernardino
CONSULTANT:
BY:
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P.O. Box 976
Albany, New York 12201
(518) 419-4495
.
8466 North Lockwood Ridge Road
Suite 1240
Sarasota, FL 34243
(813) 957-5012
-.............-
MUNICON
Cable Television Consultanttb c: rEI V 1= n "..!': r1.. ERr' .
exclusively serving the public s8CIor' . '.e .
'90 JAN 30 A10 :31
January 26, 1990
Marshall W. Julian
City Administrator
300 North "0" street
San Bernardino, California 92418-0001
Dear Mr. Julian:
Pursuant to Municon's Consulting Agreement with the City, I
am enclosing Municon's invoice for billable hours for the
period December 14, 1990, through January 25, 1990.
Hours of Michael D. Hunt
l2/l4/89-review of City's present cable ordinarl(:c dnd
franchise agreements
Billable hours=2.7
l2/15/89-review of City's present
franchise agreements; drafting rough
amended cable ordinance
Billable hours=4.4
cable ordinance and
draft of proposed
l2/l7/89-drafting rough draft of proposed amended cable
ordinance
Billable hours=4.9 hours
1/2/90-drafting rough draft of proposed amended cable
ordinance
Billable hours=2.4
1/3/90-drafting rough draft of proposed amended cable
ordinance
Biliable hours=3.0
1/4/90-drafting rough draft of proposed amended cable
ordinance
Billable hours=4.2
1/5/90-drafting rough draft of proposed amended cable
ordinance
Billable hours=4.7
1/9/g0-revising rough draft of proposed amended cable
ordinance
Billable hours=1.2
l/ll/gO-revising rough draft of proposed amended cable
ordinance
Billable hours=4.0
l/l8/90-telephone conference with Assistant City Attorney
Diane Roth on various c.oncerns of City Cable Commission
*Complimentary hours=1.1
1/l9/90-revising rough draft of proposed amended cable
ordinance; review of certain other City Code sections
Billable hours=3.8
1/22/90-rev!sing rough draft of proposed amended cable
ordinance
Billable hours=1.0
1/23/90-revising rough draft of proposed amended cable
ordinance
Billable hours=l.l
The cumulative billable hours are as follows:
M. D. Hunt 37.4 hours x $100/hr=
$3,740.00-Due
The $3,740.00 is due and payable within twenty (20) days.
Please take whatever steps are necessary in order to process
the invoice. For reference, Municon's FEIN is 59-2727876.
Please make the check payable to Municon Corporation. Please
send the check to:
Michael D. Hunt
Municon Corporation
8466 North Lockwood Ridge Road
Suite 1240
Sarasota, Florida 34243
Also, please note that pursuant to Section 3 (a) (1) of the
Consulting Agreement, I am notifying the City that Munieon's
intends to submit its second invoice to the City on or
before March 1, 1990. The estimated amount of the invoice is
$3,500.00.
If the City requires further information please contact me
at (813) 957-5012.
Sincerely,
~:v~A~
Mic'bael D. Hunt
cc: S. Clark
D. Gray
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