The URL can be used to link to this page

Home My WebLink About05- Tel-Mart Inc. (TMI); Administration & Management of Cable Communications Franchise Agreement - 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 cable 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 franchise agreement for six months after the effective date of the franchise agreement. 1. TMI will represent the City with Douglas Johnson as the primary company representative. 2. TMI will as a ftrst 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 cable 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 deftned areas of the city. b. Technical standards. c. Customer service standards d. Public, Educational and Government (PEG) TV channel requirements and funding. e. An Institutional Network providing two way service for public buildings. f. Payment of fees g. Cable service to schools and public buildings h. City access to Emergency Alert System 1. Financial and insurance requirements 4. TMI assures that its services will be accomplished in a timely manner. The City agrees to designate a contact or a committee whom TMI will contact and who will regularly review, discuss and meet with TMI regarding the services provided, the time for 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 TM!. 5. The City will assist TM! with reasonable and necessary costs and expenses that TMI incurs on the City's behalf. These costs and expenses include charges for photocopying, long-distance telephone calls, delivery and messenger services, and telecopying. All expenses will be approved by the city before they are incurred. Travel, food and lodging will not be included as expenses to be provided or reimbursed by the City. Any costs approved under this paragraph are in addition to paragraph 7 below. 6. TMI will monitor and administer the franchise agreement for a period of six months from the effective date 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 the 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 regarding the start up of city PEG channel. 7. TMI will invoice the city for a total amount not to exceed $25,000 for the services described above. Payments to TMI will be made as follows: Payment 1 in the amount of $5,000 is due after TMI's first meeting with City Commission and submittal of invoice for payment 1 to City; Payment 2 in the amount of $5,000 is due after the submission ofthe City's proposal to Bresnan Communications and submittal of invoice for payment 2 to City; Subsequent payments will be made as invoiced (not more than one per month) with the final $5,000 payment due after 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 invoice. City has the right to terminate this agreement at anytime for any reason. If termination 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 found to be not in conformance with this standard, the TMI shall, at the CITY's request, re-perform the service at its own expense. TMI shall also, at its own expense, 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. The TMI shall comply with all Federal, State, and Local laws and ordinances applicable to the work to be done. 11. The TMI agrees to indemnify, hold hannless, 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 TMl's 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. 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 lMI'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 TMl'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 following 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. The indemnity required herein shall not be limited by reason of the specification of any particular insurance coverage in this agreement. 15. The TMI shall perform 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 TMI, or to TMl's independent professional associates or consultants. Files in electronic media format of text, data, graphics, or of other types that are furnished by TMI 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 fees, salary, and costs of in-house counsel to include City Attorney. 18. This Agreement will be construed under and governed by the laws of the State of Montana. In the event of litigation concerning it, venue is in the 18th Judicial 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 made in writing or executed in the same manner as this original document and shall after execution become a part of this Contract. 20. The undersigned acknowledges that he has full authority to enter into and bind TMI to this agreement. IN WI~WHEREOF. this Agreement has been executed by each of the parties hereto the day of Octo her 2005. CITY OF BOZEMAN BY:~/.. ~ Chris A. Kukulski, City Manager ATTEST: ~s~an~ Clerk of Commission