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HomeMy WebLinkAbout20-City Administrator , CITY OF SAN BERNQRDINO - REQUEST .oR COUNCIL ACTION ." From: JAMES E. ROBBINS Deputy City Administrator/ Administrative Services Su~ect: Agreement with MUNICON Oept: Date: October 30, 1989 Synopsis of Pnvious Council ection: None Recommended motion: Adopt resolution. /.' ')j# ' .)l...": ,.:....c.'L._t.....:j Signature ,-., C} -"l"""'-'-'" .-, v Contect person: Supporti"ll data .ttachecl: James E. Robbins Phone: 5123 yes W.rd: FUNDING REQUIREMENTS: Amount: $10,000 Source: (Acct. No.) 107-105-53150 (Acct. Oescriotionl Professional/Contractual Services Finenc:e: 0J....r lJ '"'- Council Notes: 75.0262 Agenda Item No .:La . Q 0 CITY OF SAN BERNaRDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT In 1984 the Congress of the United States adopted the Cable Communications Act to "establish an orderly process for franchise renewal. " After adoption, a number of court actions have been filed and adjudicated. In order to be fully aware and knowledgeable, an attorney must devote full time to a special practice dealing with cable issues. Local control today is in consumer protection and renewals and transfers of franchises. Because San Bernardino has four cable operators serving its citizens, the need for uniform municipal codes that maximize the City's position with all operators is of paramount importance. In most Cities with antiquated franchises, the franchise was entered into 15 to 20 years ago when cable TV was just a few network channels serving remote areas. Unfortunately, San Bernardino has several of these type franchises, and the only way to effectively manage the franchise in today's environment is to have "up to date" municipal codes that reflect changes in State and Federal law. Within the next year we In order to insure we all of the citizens, it consistent with federal will be looking at possible renewals. are in the position which best serves is essential our municipal codes are law and court decisions. In reviewing the time and expert knowledge required, staff and the City Attorney's Office agree that outside counsel would best serve the City. Several firms have been contacted and have provided information concerning their services. Because of the time needed and the expert knowledge of Cable Law required, we are recommending a qualified Cable TV consultant to re-write our City'S Cable TV municipal codes. We are recommending Municon because of their experience and track records in these matters. The MUNICON Group has indicated that completed Municipal Codes governing our four local operators could be completed as early as February 1990 if we moved quickly. It is recommended that a resolution authorizing the signing of an agreement with MUNICON be approved. %~ 2..f-f~ (tAMES E. ROBBINS Deputy City Administrator/ Administrative Services JER/md 75-0264 C I T9 0 F o SAN BERNAR INTEROFFICE MEMORANDUM 8909-702 DIN 0 --~.... 1.~t~ t..' -A~.~,,~,fU ~~.... . ...... .... ~'f r ~ TO: ;83.9 S;:,P / Q James RObbins, Deputy City Administrator- -~ ,1" 1/: I..~r: ... - ..f) FROM: Dean Gray, Director of Telecommunications SUBJECT: Municipal Code Revision DATE: September 28, 1989 ------------------------------------------------------------. As you are aware, the Cable considerably since the 1984 Congress. Certain actions strengthened by the Act, and still not certain where their Television industry has changed Cable Policy Act was passed by were deregulated and others most Cities across America are strengths as regulators lie. The real power to regulate today is in consumer protection and renewals and transfers of franchises. Because San Bernardino has four cable operators serving its citizens, the need for uniform municipal codes that maximize the City's position with all operators is of paramount importance. In most Cities with antiquated franchises, the franchise was entered into 15 to 20 years ago when cable TV was just a few network channels serving remote areas. unfortunately, San Bernardino has several of these type franchises, and the only way to effectively manage the franchise in today's environ- ment is to have "up to date" municipal codes that reflect changes in state and Federal law. An example would be the recent Cablevision stock transfer. If our municipal codes had indicated that a stock transfer of over 5% constitutes grounds for franchise renewal, our City could have required a system interconnect with Comcast, carriage of our Channel 3, financial support for PEG access, and a 60 channel upgrade, just to name a few benefits. Within 14 months, the City will enter into franchise renewals with Chambers Cable. Our municipal codes will be the infrastructure of all future franchises and as written, will again leave our City helpless during critical negotiations. Such items as who will pay for all studies and system analy- sis leading to a franchise, ongoing engineering evaluations, and annual audits can easily be settled in the City's favor with proper codes in place. Any cable operator can request a franchise renewal at any time during their existing franchise. The City would not be prepared to effectively negotiate given the weak initial franchises and absence of updated municipal codes. 30-36 months prior to the end of a franchise, both the City and the cable operator ~ open negotiations. Although this window provides approximately 14 months before mandatory meetings with Chambers Cable, Chambers can request renewal at any INTEROFFICE'MEMO~DUM: Municipal Code Revision September 28, 1989 Page 2 o 8909-702 time. In the event of stock transfers or system sales, the muniCipality rarely finds out about the action until after the deals have been concluded. Again, because the City cannot predict these events, immediate attention to Municipal Code updates is recommended. During the past 36 months, 35% of all cable franchises in America have changed hands, including Group Wand Cablevision locally. Because of the time needed and the expert knowledge of Cable Law required, I request your approval and assistance in obtaining a qualified Cable TV consultant to re-write our city's Cable TV municipal codes. I would prefer using MUNICON or Miller & Holbrooke because of their experience and track records in these matters, but would gladly review alternate consulting groups if you so suggest. The Municon Group has indicated that completed Municipal Codes governing our four local operators could be completed as early as December 1989 if we moved quickly. Enclosed please find information about Municon and Miller and Holbrooke, two quality firms serving municipalities. Basic prices and references are included for your assistance. I appreciate your time and concern in this critical issue, and look forward to moving ahead as quickly as possible. ~ ~ 1 2 3 4 5 6 7 8 9 10 11 12 I 13 , 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o o RESOLUTION NO. 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 "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 day of 1989, by the following vote, to wit: / / / / / / / / / / 10/30/89 , RESOLUTION ~HORIZING AGREEMENT WITH J:)ICON, INC. RELATIVE TO REVISION OF THE MUNICIPAL CODE RELATED TO CABLE TELEVISION REGULATION. 1 2 3 4 5 6 7 8 9 10 AYES: NAYS: ABSENT: city Clerk 11 The foregoing resolution is hereby approved this day of , 1989. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 W. R. Holcomb, Mayor city of San Bernardino Approved as to form and legal content: JAMES E. PENMAN city Attorney BY'~ / 10/30/89 -2- o o EXHIBIT "A- 1 A G R E E MEN T 2 3 THIS AGREEMENT is made and entered into this day 4 of , 1989, by and between the CITY OF SAN 5 BERNARDINO, a municipal corporation, 300 North "D" Street, San 6 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: 10 1. General DescriDtion of Work to be Done. 11 City hereby engages Consultant, and Consultant hereby 12 accepts such engagement, to perform the services' herein 13 described for the compensation herein provide~. 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. 18 2. Term. 19 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 tbe essence in the performance of the agreement. 23 3. Pavrnent and provision for Pavrnent. 24 A. Maximum Compensation. 25 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). 28 Payment to Consultant for services provided under this agreement shall be on a monthly basis with estimates provided in 10/30/89 . o o 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 DescriDtion 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 23 24 25 26 27 28 6. . Ai:sianment. 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, 1n/1n/RQ -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ~ 23 24 25 26 27 28 o o Consultant shall not be supervised, directed, or under the cont- rol 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 aqreement. Issues of compatibility and consistency with the city's Charter and ordinances shall be discussed with the City Attorney. Any direction or control so required under this agreement shall be limited to broad objectives or qoa1s of the project or proqram to be accomplished and not to the details and procedures to accomplish such objectives or goals. Consultant shall not be obliqated to conform to the supervision or direction of City officers or employees which are not authorized herein. Chanqes or modifications of said objectives and qoa1s may be made by written recommendations of either party subject to the concurrence of the other party in writinq. 8. Hold Harmless. Consultant hereby a9rees to, and shall hold city, its elective and appointive boards, commissions, officers, agents , and employees, harmless from any liability for damage or claim for personal injury, includinq death, as well as from Consultant's operations under this agreement. Consultant agrees to, and shall defend City and its elective and appointive boards, commissions, officers, agents and employees from any suit or actions at law or in equity for damages caused or alleged to have been caused by reason of Consultant's performance hereunder includinq any claims that may arise against City by reason of Consultant's legal relationship with City being categorized as other than that of an independent contractor. 10/30/89 -3- , 19 20 21 22 23 24 25 26 27 28 o o 1 9. Attornev's Fees. ,-;i .. In to the action event an is filed .'r<. by either party 2 :,enfo;ce rights under this agreement, the prevailing party 3 4 5 shall .' " ~eentitled to recover reasonable attorney's fees in addition to any other relief granted by the court. 6 7 8 9 10 11 12 13 14 15 16 17 '8 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,q1ven five .~. . ~ , ..:~ 0;:., (5) days written notice for failure of consultant:" tQ ~fOZ'lll obligations under the contract in a satisfactory '.manner, and , '. '~ written notice if termination is for', other thirty (30) days reasons. Notice shall be mailed posted to the addre,. 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. AcceDtance 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 -4- , o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ~ 23 24 25 26 27 28 12. Acknow1edament. 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 theZUnited ~ States or any other country, Consultant agrees and understands that City sha~l 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. Confidentialitv 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 -5- { 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2] 22 23 24 25 26 27 28 - o Information which ~su1tant can show is in 2. 1 2 its possession at the time of disclosure and was not acquired, directly or indirectly, from City; ).<... ,', .... 3. Information which was received by Consultant 3 ", , ,",,~'. :., fro.". ,third party having the legal right to transmit that 4 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. Consultant shall not, without the written permission of the City Administrator, use the secret information, which Consultant is obligated hereunder to maintain to," :9:- . 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 to City all correspondence, drawings, 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 ~o 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 10/30/89 -6- " . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mightind.Qte o 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 Shauna Clark, City Clerk City of San Bernardino 300 North "D" Street San Bernardino, Ca 92418 Consultant 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 -7- .. . . 17 18 19 20 21 22 23 24 25 26 27 28 AGREEMENT ~H MUNICON, INC. RELATIVE r-\REVISION OF THE MUNICIPAL ~E RELATED TO CABLE TELEVI~N REGULATION. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 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 THEREOF, this Agreement has been executed by the parties effective as of the date and year first above written. ATTEST: Shauna Clark 16 City Clerk Approved as to form and legal content: JAMES F. PENMAN city Attorney BY,~~J 10/30/89 -8- .,., CITY OF SAN BERNARDINO Municipal Corporation of the State of California .~ ':I; :" BY: W. R. Holcomb, Mayor City of San Bernardino CONSULTANT: BY: MUNICOM, INC.