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Resolution 1994-88 . . RESOLUTION NO. 94 - 88 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GILROY APPROVING PARTICIPATION IN THE JOINT CABLE TELEVISION REFRANCHISING PROJECT WITH THE CITIES OF GILROY, HOLLISTER, AND SAN JUAN BAUTISTA AND THE COUNTIES OF SAN BENITO AND SANTA CLARA WHEREAS, the Cities of Morgan Hill, Gilroy, Hollister, and San Juan Bautista (CITIES) and the Counties of San Benito and Santa Clara (COUNTIES) all currently have cable television (CATV) franchise agreements with Falcon Cable TV of Northern California (FALCON); and WHEREAS, the CITIES and COUNTIES wish to work together to conduct a joint CATV refranchising effort in order to facilitate a more concerted and cohesive approach to the CATV refranchising process and ensure that CATV customers within the CITIES and COUNTIES are receiving the appropriate level of service from FALCON; and WHEREAS, CITIES and COUNTIES intend to retain the professional services of a qualified consultant, selected with approval of each CITY and COUNTY, to assist in developing a refranchising strategy, identifying common and unique jurisdictional CATV issues and goals, and developing a program for the actual negotiation of a new CATV franchise; and WHEREAS, CITIES and COUNTIES desire to secure the commitment of each CITY and COUNTY to participate in the CATV refranchising project through the adoption by each CITY and COUNTY of a Memorandum of Understanding; and WHEREAS, the attached memorandum of Understanding was developed to define the terms and conditions under which the joint CATV refranchising project will be conducted. -1- RESOLUTION NO. 94 - 88 . . NOW, THEREFORE, THE GILROY CITY COUNCIL DOES RESOLVE AS FOLLOWS: 1) To approve the City of Gilroy'S participation in the joint CATV refranchising project; and 2) To authorize the City Administrator to execute the Memorandum of Understanding with the Cities of Hollister, Morgan Hill, San Juan Bautista and the Counties of San Benito and Santa Clara to conduct a joint CATV refranchising project. PASSED AND ADOPTED this 19th day of December, 1994, at a regular meeting of the City Council by the following vote: AYES: COUNCILMEMBERS: GILROY, KLOECKER, MORALES, ROGERS, ROWLISON, VALDEZ and GAGE. NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None APPROVED: &~o!' ~ ATTEST: ~~-- City Clerk ~ . . I, SUSANNE E. STEINMETZ, City Clerk of the City of Gilroy, do hereby certify that the attached Resolution No. 94-88 is an original resolution, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 19th day of at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the December , 19~, Official Seal of the City of Gilroy this 21st day of December ,1994. 4~~i~~ (Seal) .. .< . EXHIBIT . MEMORANDUM OF UNDERSTANDING CABLE TV REFRANCmSING EFFORT THIS MEMORANDUM OF UNDERSTANDING is made this _ day of , 1994, between the CITY OF MORGAN HILL; a municipal corporation ("MORGAN HILL"); the CITY OF GILROY; a municipal corporation, ("GILROY"); the CITY OF HOLLISTER; a municipal corporation ("HOLLISTER"); the CITY OF SAN JUAN BAUTISTA; a municipal corporation ("SAN JUAN BAUTISTA"); the COUNTY OF SANTA CLARA, a political subdivision of the State of California, ("SANTA CLARA"); and the COUNTY OF SAN BENITO; a political subdivision of the State of California, ("SAN BENITO") RECITALS The following recitals are a substantive part of this MEMORANDUM OF UNDERSTANDING: 1. This MEMORANDUM OF UNDERSTANDING is entered into pursuant to Morgan Hill City Council approval on , 1994; Gilroy City Council approval on _, 1994; Hollister City Council approval on , 1994; San Juan Bautista City Council approval on , 1994; Santa Clara County Board of Supervisors approval on _ _, 1994; and San Benito County Board of Supervisors approval on , 1994. 2. MORGAN HILL, GILROY, HOLLISTER, AND SAN JUAN BAUTISTA ("CITIES"), along with SANTA CLARA and SAN BENITO ("COUNTIES"), all currently have cable television ("CATV") franchise agreements with Falcon Cable TV of Northern California ("FALCON"). 3. CITIES and COUNTIES wish to work together to conduct a joint CATV refranchising effort in order to facilitate a more concerted and cohesive approach to the CATV refranchising process and ensure that CATV customers within CITIES and COUNTIES are receiving the appropriate level of service from FALCON. 4. CITIES and COUNTIES intend to retain the professional services of a qualified consultant, selected with the approval of each CITY and COUNTY, to assist in developing a refranchising strategy, identifying common and unique jurisdictional CATV issues and goals. and developing a program for the actual negotiation of a new CATV franchise. 5. The purpose of this Agreement is to secure the commitment of each CITY and COUNTY to participate in the CATV refranchising process. 1 . . MEMORANDUM OF UNDERSTANDING THE PARTIES MUTUALLY AGREE AS FOLLOWS: 1. Termi of Memorandum ofUnderstandin2:. This Memorandum of Understanding shall coverlthe period of , 1994 through June 30 , 1996. It may be renewed upon mutual written agreement for an! additional period not to exceed one year. 2. Scope of Work. CITIES and COUNTIES will conduct a joint CATV refranchising process that will include: development of a refranchising strategy, development of CATV franchise goals and objectives~ and negotiation of a new CATV franchise. 3. Proiect Coordination. MORGAN HILL will serve as the project leader and contract admitustrator for this CA TV refranchising process. Work tasks relating to the CATV refr~chising process shaH be shared !equitably between the CITIES and COUNTIES. The CITIES and COUNTIES shall meet regularly to decide upon the work needed. to condilct the CATV refranchising process and to review its progress. All decisions relating to the conduct of the CATV refranchising process shall be done through consensus of the CITIES and COUNTIES. In the event consensus can not be reached, a majority vote shall resolve the issue. Utilizing a formula whereby each jurisdiction has one vote plus its percentage of CATV subscribers, CITIES and COUNTIES will be eligible to cast votes accordingly: City of Gilroy City of Hollister City of Morgan Hill City of San Juan Bautista County of San Benito County of Santa Clara 26 votes 21 votes 24 votes 9 votes 11 votes 9 votes 4. Cost Apportionment. CITIES and COUNTIES shall provide financial support in an amount not to exceed ($145.680.00) for the CATV refranchising effort and shall pay their proportional share for the costs of undertaking and maintaining the refranchising process as follows: City of Gilroy City of Hollister . City of Morgan Hill City of San Juan Bautista County of San Benito County of Santa Clara $47,045 (36% of remaining total) $39,204 (30% of remaining total) $44,431 (34% of remaining total) $ 5,000 $ 5,000 $ 5,000 Any financial support in excess of the above specified amount sharf be approved in 2 . . writing by the CITIES and COUNTIES in advance, and shall be allocated among the jurisdictions based on the voting formula identified in Section 3. 5. Consultant. On behalf of the CITIES and COUNTIES, the services of The Buske Group will be secured to conduct the CATV refranchising. process. Attachment A, the Consultant Agreement, describes the contract services to be performed by the Consultant, and the cost and anticipated schedule for the project. The project will be initiated following execution of this Memorandum of Understanding by the CITIES AND COUNTIES, and the subsequent execution of the j Consultant Contract and issuance of a notice to proceed. /CITIES and COUNTIES? approvals of the project scope of : work, cost and schedule j is indicated by execution of this Memorandum of Understanding. 6. Contract Administration. MORGAN HILL will administ~r the Consultant Contract on beh31f cf the CITIES and lCOL'NTIES. The Con~ultant Contract will be administered according to the general requirements and .standards which apply to other similar projects administered by MORGAN HILL. MORGAN HILL staff will award the contract, manage the project, including payment of the Consultant and serve as the liaison with the Consultant. MORGAN HILL staff will coordinate project review and decision-making with CITIES and COUNTIES. The project manager for MORGAN HILL shall be the Consultant's primary contact and will assist the Consultant in functions involving coordination with CITIES and COUNTIES and FALCON. Assistance from staff of participating jurisdictions will be provided upon request of the project manager. CITIES and COUNTIES shall be copied with any and all correspondence or documentation of any type between Consultant and MORGAN HILL. Consent shall be obtained from CITIES and COUNTIES by MORGAN HILL for any proposed deviations from the contract by the Consultant. 7. Payment. MORGAN HILL shall bill the CITIES and COUNTIES monthly. Invoices shall reflect the CONSULTANTs monthly invoices, and CITIES and COUNTIES shall be billed based on their proportional share of their financial support of the project. CITIES and COUNTIES shall endeavor to pay their respective amounts due within thirty (30) days from receipt of billing. As agreed by MORGAN HILL, GILROY and HOLLISTER, HOLLISTER'S share of the program costs will be paid by GILROY and MORGAN HILL through June 30, 1995. GILROY and MORGAN HILL will each pay fifty percent (50%) of HOLLISTER's bills under this Memorandum of Understanding through June 30, 1995. HOLLISTER will reimburse GILROY and MORGAN HILL for the bills paid by each of them on its behalf byJuly 31, 1995. HOLLISTER shall be respons.i~le for directly 3 . . paying its own bills as of July 1, 1995, through the remainder of the term of this Memorandum of Understanding. 8. Non-Liabilitv of Officials and Emnlovees. No official or employee of any CITY or COUNTY under this Memorandum of Understanding shall be personally liable to any other entity or person in the event of any default or breach by CITIES or COUNTIES. 9. Non-Discrimination. CITIES and COUNTIES covenant that there shall be no discrimination against any person or group due to race, color, creed~ religion, sex, marital status, age, handicap, national origin, or ancestry, in any activity pursuant to this Memorandum of Understanding. 10. Compliance with Law. CITIES and COUNTIES shall comply with all applicable laws, ordinances, codes, and regulations of the federal, state, and local government in any dctivity pursuant to this Memorandum of Understanding. 11. Conflict of Interest and Reporting. CITIES and COUNTIES shall at all times avoid conflict of interest or appearances of conflict of interest in performance of this Memorandum of Understanding. No CITY or COUNTY shall act independently outside the scope of this Memorandum of Understanding with FALCON or the CONSULTANT. 12. Notices. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process. a. Address of MORGAN HILL is as follows: City Manager 17555 Peak Avenue Morgan Hill, CA 95037 b. Address of GILROY' is as follows: City Administrator 7351 Rosanna Street Gilroy~ CA 95020 c. Address of HOLLISTER is as follows: City Manager 375 Fifth Street Hollister, CA 95023 4 . . I. o. d. Address of SAN JUAN BAUTISTA is as follows: City Manager P.O. Box 1086 San Juan Bautista, CA 95045 e. Address of SANTA CLARA COUNTY is as follows: County Executive 70 West Hedding Street San Jose, CA 95110 f. Address of SAN BENITO COUNTY is as follows: County Administrator 481 Fourth Street Hollister, CA 95023 13. Termination. This Memorandum of Understanding may be terminated upon providing a thirty (30) day written notice from one CITY or COUNTY to other CITIES or COUNTIES. In the event of termination, the party terminating shall be responsible for its share of any and all costs incurred for work done up to the time in which the agreement is terminated, to the extent that costs can be attributed. 14. Time of Essence. Time is of the essence in the performance of this Memorandum of Understanding. 15. Authoritv to Execute. The persons executing this Memorandum of Understanding on behalf of the parties warrant that they are duly authorized to execute this Memorandum of Understanding and that by executing this Memorandum of Understanding, the parties are formally bound. 16. Indemnification. In contemplation of the prOViSions of Section 895.2 of the Government Code of the State of California imposing certain tort liability jointly upon public entities solely by reason of such entities being parties to an agreement as defined by Section 895 of said Code, the parties hereto, as between themselves, pursuant to the authorization contained in Section 895.4 and 895.6 of said Code, will each assume the full liability imposed upon it, or any of its officers, agents or employees by law for injury caused by negligent or wrongful act or omission occurring in the performance of this Memorandum of Understanding to the same extent that such liability would be imposed in the absence of Section 895.2 of said Code. To achieve the above stated purpose, each party indemnifies and holds harmless the other parties for any loss, cost or expense that may be imposed upon such other party solely by virtue of Section 895.2 17. Modification. This Memorandum of Understanding constitutes the entire agreement between the parties and supersedes any previous agreements, oral or written. This 5 . Memorandum of Understanding may be modified only by subsequent mutual written agreement executed by all of the parties. . 18. Waiver. All waivers of the provisions of this Memorandum of Understanding must be in writing by the appropriate authorities of each of the CITIES and COUNTIES. 19. California Law. This Memorandum of Understanding shall be construed in accordance with the laws of the State of California. Any action commenced about this Memorandum of Understanding shall be filed in the central branch of the Santa Clara Superior Court. 20. Interpretation. This Memorandum of Understanding shall be interpreted as though prepared by all of the parties. 21. Preservation of Agreement. Should any prO'/lSlon of this Memorandum of Understanding be found invalid or unenforceable, the decision shall affect only the provision interpreted, and all remaining provisions shall remain enforceable. IN WITNESS THEREOF, these parties have executed this Memorandum of Understanding on the day and year shown below. CITY OF MORGAN HILL CITY OF GILROY City Manager Date: City Administrator Date: Attest: City Clerk Date: City Clerk Date: Approved as to form: Approved as to form: City Attorney Date: City Attorney Date: 6 . CITY OF HOLLISTER City Manager Date: Attest: City Clerk Date: Approved as to form: City Attorney Date: COUNTY OF SANTA CLARA Date: Attest: Date: Approved as to form: Date: c :wp5I \94ad\cabletv\mou4.dft 11/30/94 -. . . . CITY OF SAN JUAN BAUTISTA City Manager Date: Attest: City Clerk Date: Approved as to form: City Attorney Date: COUNTY OF SAN BENITO Date: Date: Date: 7