The URL can be used to link to this page

Home My WebLink About05- Tel-Mart Engagement Agreement . ENGAGEMENT AGREEMENT This Engagement Agreement sets forth the agreement between the City of Bozeman, Montana ("City") and Tel-Mart Inc. ("TMI") concerning representation in the cable communications franchising process pertaining to regulation of the cahle communication company usage of public rights-of-ways and provision of customer service and other services to the City. It also sets forth the agreement between the City and TMI concerning administration and management of the cable communications iranchise agreement f{)r six months afler the effective date of the franchise agreement. 1. TMI will represent the City with Douglas Johnson as the primary company representative. 2. 'I'M] will as a first step meet with Staff and the City Commission to determine what types of considerations are preferred to be included and or not included in a franchise agreement. 3. TMI will negotiate with the cable communications company operating in City for a long-term, non-exclusive cahle television franchise agreement or other agreement designated by City. TMI will assist the city to develop priorities of provisions to be included in the negotiation process. Some, though not all, of the provisions that could be included are: a. Cable service provided to defined areas of the city. b. Technical standards. c. Customer service standards d. Puhlic, Educational and Government (PEG) TV channel requirements and funding. e. An Institutional Network providing two way service for puhlic huildings. f. Payment of fees g. Cahle service to schools and public buildings h. City access to Emergency Alert System 1. Financial and insurance requirements 4. 'I'MI assures that its services will he accomplished in a timely manner. The City agrees to designate a contact or a committee whom TMI will contact and who wi II regularly review, discuss and meet with TMI regarding the services provided, the time f()r performance of the services, and to assist in arranging meetings, conferences, and other arrangements with the City personnel to facilitate the performance of services by TMI and to ensure that all information and issues required for review by the City are made available to TMI. 5. The City wiJl assist TMI with reasonable and necessary costs and expenses that TMI incurs on the City's behalf. These costs and expenses inelude charges for photocopying, long-distance telephone calls, delivery and messenger services, and telecopying. All expenses will be approved hy the city hefore they are incurred. Travel, food and lodging will not be included as expenses to he provided or . reimbursed by the City. Any costs approvcd under this paragraph are in addition to paragraph 7 below. 6. TMI will monitor and administer the franchisc agrccmcnt for a period of six months from the etTectivc datc of the franchise. Administration of the franchise will include: a. Work with the cable company to resolve customer complaints. b. Inform the city of changes in thc law and customer rights. c. Monitor cable company compliance with the franchise agreement and city, state and federal law. d. Verification of fee payments to the city. e. Provide assistance rcgarding the start up of city PEG channel. 7. 'I'MI will invoice the city for a total amount not to excced $25,000 f()r the services described above. Payments to TMI will be made as follows: Payment I in thc amount 01'$5,000 is due after TMl's first meeting with City Commission and submittal of invoice for payment I to City; Payment 2 in the amount of $5,000 is due aftcr the submission of the City's proposal to Bresnan Communications and submittal of invoice for payment 2 to City; Subsequent paymcnts will be made as invoiced (not more than one per month) with the final $5,000 payment due aH:er final execution of the cable franchise agreement and submittal of invoice for final payment by TMI. All payments will be made within (15) fifteen calendar days after City receives invoicc. City has the right to terminate this agreement at anytime for any reason. Iftermination occurs midmonth, then TMI will be paid only for work up to date of termination. Payments for services performed by TMI described above shall not exceed $25,000. 8. The TMI shall not sublet or assign any of the work covered herein without prior written approval of the CITY. 9. In providing services under this agreement, the TMI will perform in a manner consistent with the degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances. If any service should be f(mnd to be not in conformance with this standard, the TMI shall, at the CITY's request, re-perform the service at its own expense. 'I'MI shall also, at its own expensc, make such changes, modifications or additions to the project which are made necessary as a result of the initial non-performance or the re-performance of services. The CITY's rights herein are in addition to any other remedies the CITY may have under the law. 10. 'rhe TMI shall comply with all Federal, State, and I ,ocallaws and ordinances applicable to the work to be done. 11. The TMI agrees to indemnity, hold harmless, and defend the CITY, its oflicers, directors, agents, and employees from and against any suits, causes of action, . claims, demands, damages, costs, expenses, obligations, and liability of any character, including attorney's fees, arising out of or resulting from or in connection with the TMI's negligent performance of the services specified in this agreement. In the event the Crry is fbund proportionately responsible, the TMI will be held responsible only for those damages, costs, attorney's fees, and liabilities as are attributable to the TMI's percent offauIt as compared with 100% of the fault giving rise to the damages. 12. The TMI agrees to indemnifY, hold harmless and defend the CITY, its officers, directors, agents, and employees from and against any suits, causes of action, claims, demands, damages, costs, expenses, obligations, and liability of any character, including attorney's fees, arising out of or resulting from or in connection with the TMI's non-negligent performance of the services specified in this agreement. In the event the CITY is found proportionately responsible, the TMI will be held responsible only for those damages, costs, attorney's fees, and liabilities as are attributable to the TMI's percent of fault as compared with 100% of the fault giving rise to the damages. 13. In an appropriate case in which attorney's fees are awarded to the CITY f()llowing a wrongful refusal of a tender of defense, said fees may include fees and salary paid by the CITY to the City Attorney or other in-house counsel. 14. 'rhc indemnity required herein shall not he limited by reason of the specification of any particular insurance coverage in this agreement. 15. The TMI shall perfonn this agreement as an independent contractor, and as such, is responsible to the CITY only as to the results to be obtained in the work herein specified, and to the extent that the work shall be done in accordance with the terms, plans and specifications. The TMI shall have and maintain complete control over all of its employees, subcontractors, agents and operations, being responsible for any required payroll deductions and providing required benefits, such as, but not limited to, worker's compensation with statutory limits, and unemployment insurance. 16. The parties admit and agree the documents produced under this agreement are not intended or represented to be suitable for reuse by CITY or any other individual on any other project. Any reuse without written verification or adaptation by TMI will be at CITY's sole risk and without liability or legal exposure to 'I'Ml, or to TMI's independent professional associates or consultants. 1''iles in electronic media format of text, data, graphics, or of other types that arc furnished by I'MI to CITY are only for convenience of City. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. ----------------------------------- ----------- -------------- 17. That in the event it becomes necessary for either Party of this Contract to retain an attorney to enforce any of the terms or conditions of this Contract or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including tees, salary, and costs of in-house counsel to include City Attorney. 18. This Agreement will be construed under and governed by thc laws of the State of Montana. In the event of litigation concerning it, venue is in the 18th.T udicial District in and for the County of Gallatin, State of Montana. 19. That any amendment or modification of this Contract or any provisions herein shall be madc in writing or executed in the same manner as this original documcnt and shall after execution bccome a part of this Contract. 20. The undersigned acknowledges that he has full authority to cntcr into and bind TMI to this agreement. IN WITN~ WHEREOF, this Agreement has been executed by each of the parties hereto the day of October 2005. CITY OF BOZEMAN B.~A~ y. "................-..----., . Chris A. Kukulski, City Manager ATTES'l'; ~/~ Ro in L. Sullivan Clerk of Commission