HomeMy WebLinkAboutResolution 2010-201 N.C.S. 11/15/2010Resolution No. 2010 -201 N.C.S.
of the City of Petaluma, California
APPROVING THE SECOND FIVE -YEAR EXTENSION OF AGREEMENT WITH
PETALUMA COMMUNITY ACCESS (PCA) FOR VIDEOTAPING AND
CABLECASTING OF THE PUBLIC, EDUCATION, AND GOVERNMENT CHANNELS
WHEREAS, Petaluma Community Access (PCA) is a nonprofit corporation that was
formed for the purpose of coordinating and overseeing the Public, Education and Government
(PEG) cable access channels, including the development and operation of an access center; and,
WHEREAS, the City entered into an agreement with PCA on May 17, 2001, which
included a provision permitting extension of the agreement for two (2) additional five year
periods; and,
WHEREAS, the first five year extension was entered into on January 12, 2006 and will
expire December 19, 2010; and,
WHEREAS, PCA has provided the City with satisfactory service in coordinating and
overseeing the PEG channels and in development of an access center, and has demonstrated the
ability to provide all required documentation for FY 2009 -2010 per the contract terms on a
schedule acceptable to the City; and,
WHEREAS, the City desires to continue to have PCA coordinate and oversee PEG
access channels, including the development of an access center, for the second five year
extension period provided for in the existing agreement between the City and PCA.
NOW, THEREFORE, BE IT RESOLVED that the Petaluma City Council approves
the Professional Services Agreement, Extension #2, between the City of Petaluma and Petaluma
Community Access, Inc. (PCA) for Videotaping and Cablecasting of the Public, education and
Government channels set forth as Exhibit A hereto and incorporated herein by reference (the
"Agreement "). The Agreement as extended shall terminate on December 19, 2015, unless earlier
terminated pursuant to its terms.
Under the power and authority conferred upon this Council by the Charter of said City.
REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Aoyas to
Council of the City of Petaluma at a Regular meeting on the 15` day of November, for
2010, by the following vote:
AYES:
Vice Mayor Glass, Healy, Renee, Mayor Torliatt
NOES:
None
ABSENT:
Barrett, Harris, Rabbitt
ABSTAIN:
None
ATTEST:
/
Deputy City Clerk
City
Resolution No. 2010 -201 N.C.S. Page 1
EXHIBIT A
PROFESSIONAL SERVICES AGREEMENT, EXTENSION #2, BETWEEN THE
CITY OF PETALUMA AND PETALUMA COMMUNITY ACCESS, INC. (PCA) FOR
VIDEOTAPING AND CABLECASTING OF THE
PUBLIC, EDUCATION, AND GOVERNMENT CHANNELS
This agreement is made this day of , 2010 by and between the City of
Petaluma, a municipal corporation ( "City "), and Petaluma Community Access, Inc., a California
nonprofit corporation ( "PCA "), sometimes referred to collectively as the "parties" who agree as
follows:
RECITALS
The City desires to provide support for the use of cable access channels provided
pursuant to 47 USC Section 531 of the Cable Communication Policy Act of 1984, as
amended,, the Digital Infrastructure and Video Competition Act of 2006 ( "DIVCA "),
and California Public Utilities Code Section 5870.
2. In 2006, the State of California passed DIVCA, which assigns franchise authority to the
State Public Utilities Commission (CPUC), and which preempts local franchise authority
and sets certain time frames for expiration of previously granted local franchise
agreements. The local franchise agreement between City and Comcast Cable
Communications, Inc. expired on August 19, 2010.
DIVCA sets franchise fees at a maximum of 5% and allows the City to set fees to 1% or
more, to be used for operating the Public, Education, and Government (PEG) access
channels, based upon the equivalent of 2006 PEG revenue to the City.
4. PCA is the nonprofit public access entity currently under contract with the City to
provide public, educational, and government access programming and services.
5. The City entered into a five year agreement with PCA on May 17, 2001. Per Section 18
of the agreement, it could be extended, by mutual written agreement of the City and PCA,
for two additional periods of five (5) years each in accordance with Section 20 of the
Agreement. The Professional Services Agreement, Extension #2, attached to this
Resolution as Exhibit A and incorporated herein by reference serves as the second five -
year extension of the 2001 agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein,
the parties agree as follows:
Resolution No. 2010 -201 N.C.S. Page 2
Section 1. Scope of Services. In exchange for the funding provided by the City to PCA,
pursuant to this Agreement, PCA shall provide the following services.
A. Operate Public Access Cable Channel(s) Operate the public access cable channel(s) for
public /community access programming with the primary purpose being to administer,
coordinate, and assist those requesting access on a non - discriminatory basis.
B. Operate the Educational Access Channels. Operate the educational access channel(s) for
community access programming purposes with the primary purpose being to administer,
coordinate and assist the educational institutions (educational access) requesting access
on a non - discriminatory basis. Provide for the cablecast of the School Board meetings,
and other public meetings as may be requested by the District.
C. Operate the Government Access Channels. Operate the government access channel(s) for
community access programming purposes with the primary purpose being to administer,
coordinate and assist the City of Petaluma access on a non - discriminatory basis. Provide
for the cablecast of the City Council meetings and other public meetings as may be
requested by the City. The fee for taping of City required meetings shall be agreed to
annually between the City and PCA no later than April 1 st of each year. Payment shall be
made within thirty (30) days of receipt of invoice, which is to be submitted on a quarterly
basis. PCA may charge a one -hour minimum fee for all videotaping of government
meetings. Meetings in excess of one hour will be charged to the nearest quarter -hour.
PCA may charge up to 15 minutes of prep time at the beginning of each government
meeting being filmed.
D. Operate a Community Access Center Manage a video production facility and equipment
which shall be available for public use at such hours and times as are reasonable to insure
user access. Access to equipment and facilities shall be open to all those who
satisfactorily complete training class(es) provided by PCA or who receive a certification
from PCA, identifying said user(s) as having satisfied training requirements through
means other than PCA training classes.
E. Provide Equal Access. Provide access to the use of the equipment, facilities, channels,
and services provided hereunder on a non - discriminatory basis to all members of the
community for non - commercial programming purposes, whether individuals, groups, or
organizations, on a first -come, first- served non - discriminatory basis, pursuant to
operating rules promulgated by PCA -and consistent with federal and State law and
Petaluma Municipal Code Chapter 14.48.
Resolution No. 2010 -201 N.C.S. Page 3
F. Develop operating Policies and Procedures Develop policies and guidelines for use and
operation of the access equipment, facilities, and channel(s) and file such rules and
guidelines with the City.
G. Compliance With Laws, Rules, and Regulations Administer the public, educational, and
government access channel(s) and facilities in compliance with applicable laws, rules,
regulations, and this Agreement.
H. Training. Train City residents, and when requested, City and school employees in the
techniques of video production, and provide technical advice in the execution of
productions.
Playback/Cablecast Provide for the playback/cablecasting of programs on the public,
educational and government access channel(s). Within twelve months of the completion
and opening of the access center, PCA shall cablecast a minimum of 20 hours of local
original, replayed, and outside programming per week on each activated channel. PCA
will also be responsible for the operation of the Community Bulletin Board when the
Access Center is completed.
J. Maintenance of Equipment Provide regular maintenance and repair of all video
equipment purchased with monies received pursuant to this Agreement and /or donated,
loaned, or leased to PCA by the City.
K. Special Needs Groups Support special needs groups, including, but not limited to the
hearing impaired, in program production through training and other means.
L. Promotion Actively promote the use and benefit of the public, educational and
government access channel(s) and facilities to cable subscribers, the public, access users,
and franchise providers.
M. Performance Review. PCA shall annually conduct a performance review. After four
years of operation under this Agreement, PCA shall contract with an entity expert in
access from outside the Petaluma community for a performance review which shall
include an opportunity for access users and cable subscribers to provide input. Upon
completion, a copy of each performance review shall be submitted to the City by
November I" of each year. The performance review shall include, but not be limited to:
® A web survey, with survey data compiled in a report, including a summary of the data
® Email survey invitations to all PCA members, in addition to posting invitation on
message board and web site for two weeks.
Resolution No. 2010 -201 N.C.S. Page 4
® Data gathered on total number of viewers, number of original shows, hours of
original member - produced content, total number of viewers, total number of shows
viewed
® Ratings by viewers of service quality for training, equipment, editing assistance, use
of facilities
• Access channels watched by viewers; convenience of programs and rebroadcasts
• Requests for additional information, types of programming, etc.
N. Other Activities Undertake other public, educational, and government access
programming activities and services as deemed appropriate by PCA and consistent with
the obligation to facilitate and promote access programming and provide non-
discriminatory access.
Section 2. Channels Open to Public PCA agrees to keep the access channel(s) open to all
potential users, regardless of their viewpoint, subject to FCC regulations, the Cable
Communication Policy Act of 1984, as amended, and other relevant laws. Neither the City, nor
the franchisees, nor PCA shall have the authority to control the content of programming placed
on the public access channel(s) so long as such programming is lawful. Nothing herein shall
prevent PCA, the City, or the franchisees from producing or sponsoring programming, prevent
the City or the franchisees from underwriting programming, or prevent the City, franchisees, or
PCA from engaging in activities designed to promote production of certain types of
programming or use by targeted groups as consistent with applicable law and rules for use of
channels. PCA may promulgate and enforce policies and procedures which are designed to
promote local use of the channel(s) and make the programming accessible to the viewing public,
consistent with such time, manner, and place regulations as are appropriate to provide for and
promote use of access channels, equipment and facilities.
Section 3. Indemnification PCA shall indemnify, defend with counsel acceptable to City, and
hold harmless City and its officers, officials, agents, employees and volunteers from and against
any and all liability, loss, damage, claims, expenses, and or costs (including, without limitation,
attorney's fees and costs and fees of litigation) (collectively, "Liability ") of every nature arising
out of or in connect with (a) PCA's performance of the Services or its failure to comply with
any of its obligations contained in this Agreement (except such Liability caused by the sole
negligence or willful misconduct of City) and also (b) arising from or in connection with claims
or loss or damage to person or property arising out of the failure to comply with any applicable
laws, rules, regulations or other requirements of local, state or federal authorities, for claims of
libel, slander, invasions of privacy, or infringement of common law or statutory copyright, for
breach of contract, or other injury or damage in law or at equity which claims, directly or
indirectly, result from PCA use of channels, funds, equipment, facilities or staff granted under
this Agreement or franchise agreement. Notwithstanding the foregoing, to the extent that this
Agreement is a "construction contract" within the definition of Civil Code Section 2783, as may
Resolution No. 2010 -201 N.C.S. Page 5
be amended from time to time, such indemnity shall not include Liability for the active
negligence of City.
Section 4. Copyright Clearance Before cablecasting video transmissions, PCA shall require all
users to agree in writing that they shall make all appropriate arrangements to obtain all rights to
all material cablecast and clearances from broadcast stations, networks, sponsors, music
licensing organizations' representatives, and without limitation from the foregoing, any and all
other persons as may be necessary to transmit its or their program material over PCA authorized
channels. PCA shall maintain for the applicable statute of limitations for City's inspection, upon
reasonable notice by City and for the term of the applicable statute of limitations, copies of all
such user agreements.
Section 5. Copyright and Ownership PCA shall own the copyright of any programs which it
may choose from time to time to produce. Copyright of programming produced by the public
shall be held by such person(s) who produces said programming.
Section 6. Distribution Rights
A. PCA shall require that all programs produced with funds, equipment, facilities, or staff
granted under this Agreement shall be distributed on the channels whose use is
authorized by this Agreement. This subparagraph shall not be interpreted to restrict other
distribution (beyond distribution on channels authorized by this Agreement), so long as
such other distribution is consistent with the rules and procedures governing such which
shall be promulgated by the PCA and filed with the City.
B. At least at the beginning and end of each day that video programming is cablecast on the
channel(s) whose use is authorized by this Agreement, PCA shall display a credit stating
"Partial funding for the operation of this channel is provided by the City of Petaluma."
Such credit shall also state that opinions expressed in programming on the channel(s) are
the sole responsibility of the program producers.
Section 7. Equipment and Facilities.
A. PCA shall be responsible for maintenance of all equipment and facilities owned, leased or
loaned to it under this Agreement or purchased with funds provided pursuant to this
Agreement.
B. PCA shall own all equipment and facilities acquired by it and purchased with funds
received pursuant to this Agreement, except that upon termination or non - renewal of this
Agreement, all such equipment or facilities purchased with funds received pursuant to
this Agreement shall become the property of the City. To secure all of its obligations
under this Agreement, PCA hereby grants to City a security interest in all of the assets
Resolution No. 2010 -201 N.C.S. Page 6
and interests owned or hereafter acquired by PCA with funds provided by the City, and
the proceeds thereof, including but not limited to, PCA deposit accounts and inventory,
and all equipment and fixtures, that are or were acquired with funds provided by the City.
PCA agrees to take all steps reasonably requested by City to perfect and enforce the
City's security interest, including the execution and processing of financing statements
and continuation statements under the California Uniform Commercial Code. PCA will
also notify any institution with whom it now or hereafter maintains any deposit account
of the existence of the City's security interest in the account.
C. Upon the dissolution of the PCA, it shall, subject to the approval of the City, transfer all
assets of PCA representing City funded equipment and facilities and /or proceeds of either
to the City, or at the City's option, to such organization, or organizations designated by
the City to manage access which shall at the time qualify as a tax exempt organization(s)
under Section 501( c) ( 3 ) of the Internal Revenue Code of 1986 (or the corresponding
provisions of any future United States Internal Revenue law).
Section 8. Insurance PCA shall maintain in full force and effect at all times during the term of
this Agreement insurance as required by this Section. The cost of such insurance shall be borne
by PCA and may be included in PCA's annual budget.
PCA and any subcontractor shall not commence work under this Agreement until PCA has
obtained all insurance required under this paragraph and such insurance shall have been
approved by the City Attorney as to form and carrier and the City Manager as to sufficiency, nor
shall PCA allow any contractor or subcontractor to commence work on this contract or
subcontract until all similar insurance required of PCA and /or subcontractor shall have been so
obtained and approved. All requirements herein provided shall appear either in the body of the
insurance policies or as endorsements and shall specifically bind the insurance carrier.
PCA shall procure and maintain for the duration of the contract all necessary insurance against
claims for injuries to persons or damages to property, which may arise from or in connection
with the performance of the work hereunder by PCA, PCA's agents, representatives, employees
or subcontractors.
A. Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage
a. Personal injury
b. Contractual liability
2. Insurance Services Office form covering Automobile Liability, code 1 (any auto)
3. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance
Resolution No. 2010 -201 N.C.S. Page 7
4. Professional Liability insurance
5. Directors and Officers Errors and Omissions Liability Insurance
6. All Risk Multi -Peril Property, Equipment and Contents Insurance
7. Such other insurance coverage and limits as may be required by the City.
B. Minimum Limits of Insurance
PCA shall maintain limits no less than:
1. General Liability: $2,000,000 per occurrence for bodily injury, personal injury
and property damage. If Commercial General Liability Insurance or other form
with a general aggregate liability is used, either the general aggregate limit shall
apply separately to this project /location or the general aggregate limit shall be
twice the required occurrence limit.
2. Automobile Liability: $1,000,000 per accident for bodily injury and property
damage.
3. Employer's Liability: Bodily Injury by Accident - $1,000,000 each accident:
Bodily Injury by Disease - $1,000,000 policy limit
Bodily Injury by Disease - $1,000,000 each employee
4. Professional Liability insurance: $1,000,000.
5. Directors and Officers Errors and Omissions Liability Insurance: $1,000,000
6. All Risk Multi -Peril Property Insurance - Full Replacement Cost
7. Such other insurance coverages and limits as may be required by the City.
C. Deductibles and Self- Insured Retentions
Any deductibles or self - insured retentions must be declared to and approved by the City.
At the option of the City, either: the insurer shall reduce or eliminate such deductibles or
self- insured retention as respects the City, its officers, officials, employees, and
volunteers; or PCA shall procure a bond guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
D. Other Insurance Provisions
The required general liability and automobile policies are to contain, or be endorsed to
contain the following provisions:
1. The City, its officers, officials, employees, agents and volunteers are to be
covered as insureds as respects: liability arising out of activities performed by or
on behalf of PCA; products and completed operations of PCA; premises owned,
occupied or used by PCA; or automobiles owned, leased, hired or borrowed by
PCA. In addition the City shall be named as an additional Loss Payee under any
policy of Property Insurance. The coverage shall contain no special limitations on
the scope of protection afforded to the City, its officers, officials, employees,
agents or volunteers.
Resolution No. 2010 -201 N.C.S. Page 8
2. For any claims related to this project, PCA's insurance coverage shall be primary
insurance as respects the City, its officers, officials, employees, agents and
volunteers. Any insurance or self - insurance maintained by the City, its officers,
officials, employees, agents or volunteers shall be excess of PCA's insurance, and
shall not contribute with it.
3. Any failure to comply with reporting or other provisions of the policies including
breaches of warranties shall not affect coverage provided to the City, its officers,
officials, employees, agents or volunteers.
4. PCA's insurance shall apply separately to each insured against whom claim is
made or suit is brought except, with respect to the limits of the insurer's liability.
Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled by either party, reduced in
coverage or in limits except after thirty (30) days' prior written notice by certified
mail, return receipt requested, has been given to the City.
E. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than
A:VII.
F. Verification of Coverage
PCA shall furnish the City with original endorsements effecting coverage required by this
clause. The endorsements are to be signed by a person authorized by that insurer to bind
coverage on its behalf. The endorsements are to be on forms approved by the City. All
endorsements are to be received and approved by the City before work commences. As
an alternative to the City's forms, PCA's insurer may provide complete, certified copies
of all required insurance policies, including endorsements affecting the coverage required
by the City.
Section 9. Non - discrimination in Employment and Service.
A. PCA shall not discriminate against any person, employee or applicant for employment or
subcontractor on the basis of race, color, creed, religion, sex, sexual preference, marital
status, ancestry, national origin or physical or mental handicap.
B. PCA shall not discriminate in the delivery of services on the basis of race, color, creed,
religion, sex, sexual preference, marital status, ancestry, national origin or physical or
mental handicap.
Resolution No. 2010 -201 N.C.S. Page 9
Section 10. Independent Contractor It is understood and agreed that PCA is an independent
contractor and that no relationship of principal /agent or employer /employee exists between the
City and PCA. If in the performance of this Agreement any third persons are employed by PCA,
such persons shall be entirely and exclusively under the control, direction and supervision of
PCA. All terms of employment, including hours, wages, working conditions, discipline, hiring
and discharging or any other term of employment shall be determined by PCA and the City shall
have no right or authority over such persons or terms of employment.
Section 11. Assignment and subletting Neither this Agreement nor any interest herein shall be
assigned or transferred by PCA, except as expressly authorized in writing by City.
Section 12. Annual Reports Prior to November 1 of each year, PCA shall submit to the City
Manager's Office an annual report for the preceding fiscal year (July 1 — June 30). This report
shall contain, at a minimum, the following information:
A. Review of programming and services provided per Section 1.M;
B. Current and complete listing of Grantee's Board of Directors;
C. Year -end financial statements audited by an independent certified public accountant.
Section 13. Records and Financial Statement Audit
A. PCA shall maintain all necessary books and records in accordance with generally
accepted accounting principles.
B. Upon reasonable request from City, PCA shall, at any time during normal business hours,
make available all of its records with respect to all matters covered by this Agreement.
C. PCA shall annually prepare or have prepared financial statements that are audited by a
certified public accountant in accordance with generally accepted auditing standards and
submit the audit report to the City.
Section 14. Funding.
A. The City agrees to make funds and resources available to PCA as follows:
Franchisees have dedicated certain channel capacity for public, educational and
government access use. The City, by this agreement, permits PCA to manage that
channel capacity for public, educational and government access programming
purposes.
Resolution No. 2010 -201 N.C.S. Page 10
2. The City agrees to reserve for PCA all funds the City has previously received
pursuant to prior franchise agreements for access equipment purposes, including
interest on deposited sums. PCA is to use such funds for the purposes delineated
in this section. Transfer of said funds to be upon thirty (30) days written notice by
PCA to the City requesting the funds and providing documentation of the
purchase. A statement of the fund balance will be provided to PCA by the City
upon request.
The City has, pursuant to Petaluma Municipal Code Chapter 14.48, directed video
service franchisees to collect certain funding from cable subscribers, a community
access fee. The City shall direct franchisees to provide all such funds to PCA on
a quarterly basis.
4. Notwithstanding any provision herein, PCA shall not be paid any compensation
until such time as PCA provides the City's Finance Department information
requested on the "Vendor information" form available from the City and has
obtained a currently valid Petaluma business license pursuant to the Petaluma
Municipal Code.
Section 15. Annual Plan and Budget
A. As used herein, the fiscal year begins on July 1 and ends on June 30.
B. On or before May 15 of each year in which this Agreement is in effect, PCA shall
provide to the City an Access Activities Plan and Budget outlining activities and
programs planned for the following fiscal year with funds and channel(s) received from
the City. Such plan shall contain: (1) a statement of anticipated number of hours of local
original programming; (2) training classes to be offered and frequency of classes; (3)
other access activities planned by PCA; (4) an operating and capital equipment facilities
budget.
Section 16. Expenditure of Funds PCA shall spend funds received from City for the purposes
listed in Section 1, Scope of Services of the Agreement. Funds not expended in the year must be
carried over into succeeding years. Upon termination of this Agreement, all funds of any kind
received from the City and not expended by PCA shall be returned to City. PCA shall provide
for such fiscal control and accounting procedures as are necessary to assure proper disbursement
and accounting for funds received from the City.
Section 17. Funding from Other Sources PCA may, during the course of this Agreement,
receive supplemental funds from other sources, including, but not limited to, fundraising
activities.
Resolution No. 2010 -201 N.C.S. Page 11
Section 18. Term of Agreement. This Agreement shall be for a period of five (5) years
commencing on December 20, 2010 and ending on December 19, 2015, unless terminated
earlier, as provided in this Agreement.
Section 19. Termination of Agreement: Transfer of Assets.
A. The City shall have the right upon one hundred twenty (120) days written notice to PCA
to terminate this agreement for: (1) breach of any material provision of this Agreement by
PCA; (2) malfeasance, misfeasance, misappropriation of funds; (3) or if PCA loses its
501 (e) (3) status. Provided that with regard to time A.(1) above, PCA may avoid
termination by curing any such breach within sixty (60) days of notification or within a
time frame agreed to by the City and PCA.
B. Upon termination of this Agreement, PCA shall immediately transfer to the City all
equipment, real property, fixtures, contracts, leases, deposit accounts or other assets
received by or purchased by PCA with funds received pursuant to this Agreement.
Section 20. Time. Time is of the essence in this Agreement and for the performance of all
covenants and conditions of this Agreement.
Section 21. Cooperation. Each party agrees to execute all documents and do all things necessary
and appropriate to carry out the provisions of this Agreement.
Section 22. Applicable Law. This Agreement shall be interpreted and enforced under the laws
of the State of California.
Secti 23. Notices All notices and other communications to be given by either party may be
given in writing, depositing the same in the United States mail, postage prepaid and addressed to
the appropriate party as follows:
To PCA: Chairperson,
Petaluma Community Access, Inc.
Post Office Box 2806
Petaluma, CA 94953
To City: City Clerk
City of Petaluma
Post Office Box 61
Petaluma, CA 94953
Any party may change its address for notice by written notice to the other party at any time.
Section 24. Entire Agreement This Agreement is the entire agreement of the parties and
supersedes all prior negotiations and agreements whether written or oral. This Agreement may be
Resolution No. 2010 -201 N.C.S. Page 12
amended only by written agreement and no purported oral amendment to this Agreement shall be
valid.
IN WITNESS WHEREOF, the parties have executed the day, month and year first above
written.
CITY OF PETALUMA
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
APPROVED:
Risk Manager
PETALUMA COMMUNITY ACCESS
IM
Title
Address
City State Zip
Taxpayer I.D. Number
Petaluma Business Tax Certificate Number
APPROVED:
Finance Director
Resolution No. 2010 -201 N.C.S. Page 13