HomeMy WebLinkAboutStaff Report 3.J 12/07/2015Agenda Item #3.J
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DATE: December 7, 2015
TO: Honorable Mayor and Members of the City Council through City Manager
FROM: Scott Brodhun, Assistant City Manager
Tim Williamsen, Information Technology ager
SUBJECT: Resolution Approving a Professional Services Agreement Between the City of
Petaluma and Petaluma Community Access, Inc. for Videotaping and
Cablecasting of the Public, Education, and Government Channels
RECOMMENDATION
It is recommended that the City Council adopt the attached Resolution Approving a Professional
Services Agreement between the City of Petaluma and Petaluma Community Access, Inc. (PCA)
for Videotaping and Cablecasting of the Public, Education, and Government Channels.
BACKGROUND
The initial contract between the City and PCA was signed January 17, 1996 for a five year term.
On May 17, 2001, a new contract was executed for a new five year contract period including a
provision permitting two additional five year extensions. The Agreement expires on December
19, 2015.
PCA is contractually obligated to provide public, educational, and government access
programming and services, including operating the public access chamiels, operating a
community access center, providing equal access and training to residents, providing for
playback/cablecast of programming, maintain equipment, and actively promote the use and
benefit of the above to the public.
DISCUSSION
In accordance with the current agreement, PCA has operated and managed the Public, Education,
Government (PEG) channels, performed broadcasts and re- broadcasts, operated an access center
and provided training services. PCA has been located at 205 Keller Street since 2008, and the
access center includes camera equipment and editing stations to film and edit original shows,
digital cameras, digital editing stations with up to date software and hardware, training and
technical support for all equipment and media software, and basic and advanced classes in field
production, interviewing skills, editing, etc. A small studio with a green screen was recently
added.
PCA is in the process of building a radio station, to be operated from the Keller St. offices. This
station is being built in a partnership between PCA and Santa Rosa Junior College, and will
benefit the public with announcements and the opportunity for people to learn about radio
broadcasting (similar to the opportunities for learning video and TV). It will also function in the
event of a disaster to provide public service emergency alerts and information. The radio station
is expected to be online in 2016.
Per the terms of the current agreement, PCA submitted a letter requesting the renewal of its
agreement with the City. Staff has met with PCA to review contract provisions and the attached
draft agreement includes minor adjustments in language. Key features of the agreement are as
follows;
• Language was added to reflect PCA's commitment to operate a community radio station.
• PCA can increase their hourly fee for recording City meetings from $12.50 per hour to $16
per hour in year one, and can increase the fee one dollar per year thereafter, up to $20 per
hour.
• PCA will reimburse the City for the cost of utilities for the control room at City Hall. PCA
has provided this reimbursement on an informal basis, however the new agreement
formalizes a utilities payment of $100 per month.
• PCA will pay for their exclusive use of the control booth at a rate of $55 per month in year
one, increasing thereafter by $15 per month in each year of the agreement.
• The current agreement requires the submittal of various documents throughout the year. The
proposed agreement allows for the budget and amlual report to be presented together at the
same date; allows financial reviews, instead of full financial audits, in years 1, 3, and 4; and,
requires full financial audits in years 2 and 5.
• The recommended term of the agreement is 5 years, with 2 allowable extensions of 5 years
each.
It should be noted that the 2006 passage of the Digital Infrastructure and Video Competition Act
( DIVCA) assigned franchise authority to the State Public Utilities Commission, preempting local
franchise authority. However, DIVCA does allow for the collection of PEG access fees, paid by
cable subscribers, to be used to support community access channels such as what PCA manages
for the City.
The proposed agreement is included as Attachment 2 and has been agreed to by PCA.
FINANCIAL IMPACTS
There is no direct financial impact to the City as a result of the agreement since PEG fees are
passed through to PCA. The increase in the hourly rate charged by PCA to the City for filming
and meeting support will result in an estimated annual increase in expense of $630 in year 1, and
$180 each year thereafter. The new monthly charge to PCA for exclusive use of the booth,
including annual increases, will offset the increased hourly rate.
ATTACHMENTS
1. Resolution
2. Professional Services Agreement
2
ATTACHMENT I
RESOLUTION APPROVING A PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF PETALUMA AND PETALUMA COMMUNITY
ACCESS, INC. 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 December, 2010, which
included a provision permitting extension of the agreement for two (2) additional five year
periods; and
WHEREAS, the second five year extension was entered into in, 2010 and will expire
December 19, 2015; 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 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 for a five year term and two optional 5 -year extension periods.
NOW, THEREFORE, BE IT RESOLVED that the Petaluma City Council approves
the Professional Services Agreement between the City of Petaluma and Petaluma Community
Access, Inc. for videotaping and cablecasting of the Public, Education and Government channels
set forth as Exhibit A hereto and incorporated herein by reference.
ATTACHMENT 2
EXHIBIT A
PROFESSIONAL SERVICES AGREEMENT, BETWEEN THE CITY OF
PETALUMA AND PETALUMA COMMUNITY ACCESS, INC. (PCA) FOR
VIDEOTAPING AND CABLECASTING OF THE PUBLIC, EDUCATION,
AND GOVERNMENT CHANNELS
Effective Jan. 1, 2016: Fund # 1100 Cost Center 11330 Object Code 42110 Room Rental Amount: $55.00 monthly
Effective Jan. 1, 2017: Fund # 1100 Cost Center 11330 Object Code 42110 Room Rental Amount: $70.00 monthly
Effective Jan. 1, 2018: Fund # 1100 Cost Center 11330 Object Code 42110 Room Rental Amount: $85.00 monthly
Effective Jan. 1, 2019: Fund # 1100 Cost Center 11330 Object Code 42110 Room Rental Amount: $100.00 monthly
Effective Jan. 1, 2020: Fund # 1100 Cost Center 11330 Object Code 42110 Room Rental Amount: $115.00 monthly
This agreement is made this day of , 2015 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 I% 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 and PCA entered into an initial five year agreement on May 17, 2001, and also
executed two, additional five year extensions. The current agreement expires on
December 19, 2015. The City and PCA mutually wish to enter into another five year
agreement with the option of two additional extension periods of five (5) years each.
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NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein,
the parties agree as follows:
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 Charmel(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 chamlel(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 propose 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.
D. Operate a Community Radio Station. Operate an FCC licensed, low- powered FM
community radio station with the primary purpose being to administer, coordinate and
assist those requesting access on a non - discriminatory basis. Provide, as much as is
possible within the developing framework of this radio broadcasting capacity, to serve
the communication needs of the City of Petaluma, the Petaluma Emergency Operations
Center, the Petaluma School District and the Santa Rosa Junior College.
E. 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.
F. 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.
G. 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.
H. 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.
I. 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 playbacklcablecasting 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.
K. 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.
L. Special Needs Groups. Support special needs groups, including, but not limited to the
hearing impaired, in program production through training and other means.
M. 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.
N. Performance Review. PCA shall conduct a performance review in year three (3) of the
contract. 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". The performance review shall
include, but not be limited to:
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• 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.
• 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
O. 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. Fees and Charges.
A. Service Charges. The PCA per hour service fee for broadcasting and /or taping of City
required meetings shall be sixteen dollars ($16.00) per hour beginning on January 1,
2016, and increasing one - dollar per hour on January 1 each year of the Agreement. The
hourly rate on January 1, 2020 will therefore be twenty dollars ($20.00) per hour.
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 govermment meetings. Meetings in excess of one hour will be charged to
the nearest quarter -hour. PCA may charge up to 30 minutes of prep time for each
meeting being filmed.
B. Utility Costs. PCA shall pay the City one hundred dollars ($100.00) per month as
reimbursement for electricity costs incurred by the City for the continuous use of air
conditioning in the control booth at City Hall. Payment by PCA shall be made on a
quarterly basis.
C. Room Rental. Beginning on January 1, 2016, PCA shall pay the City fifty five dollars
($55.00) per month for the exclusive use of the control booth space in City Hall.
Thereafter, effective January 1 of each year of the agreement, the room rental charge
shall increase by fifteen dollars ($15.00) per month. Payment by PCA shall be made on
a quarterly basis.
Section 3. 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
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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 4. 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 alleged or actual 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, related to or in connection 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 be amended from time to time, such indemnity shall not include
Liability for the active negligence of City. PCA's responsibility of such defense and indemnity
obligations shall survive the termination or completion of this Agreement for the full period of
time allowed by law. The defense and indemnification obligations of this Agreement are
undertaken to, and shall not in any way be limited by, the insurance obligations contained in this
Agreement.
Section 5. 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 6. 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 7. Distribution Rights.
its.
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 begiiming 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 8. 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
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 9. Insurance. PCA shall maintain in full force and effect at all times during the term of
this Agreement insurance as required by the City, which is attached hereto and incorporated by
reference as Exhibit A. The cost of such insurance shall be borne by PCA and may be included
in PCA's annual budget.
Section 10. 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.
Section 11. 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 12. 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 13. Amival Reports. On or before August 15 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.
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Section 14. 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 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 for the 1", 3rd and 4"' years of the Agreement, and two Rill
audits in the 2" d and 5t" years.
Section 15. 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.
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 field balance will be provided to PCA by the City
upon request.
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 16. Access Activities Plan/Annual Report and Budget.
A. As used herein, the fiscal year begins on July 1 and ends on June 30.
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B. On or before August 15 of each year in which this Agreement is in effect, PCA shall
provide to the City an Access Activities Plan/Amnial Report 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. The Plan and the Annual Report may be combined into one
document.
Section 17. 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 18. 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.
Section 19. Term of Agreement. This Agreement shall be for a period of five (5) years
commencing on December 20, 2015 and ending on December 19, 2020, unless terminated
earlier, as provided in this Agreement. In the City's sole and exclusive discretion, the City may
extend the term of this Agreement by amendment, for up to two (2), additional five (5) -year
terms.
Section 20. 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 fiends; (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 fiords received pursuant to this Agreement.
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Section 21. Time. Time is of the essence in this Agreement and for the performance of all
covenants and conditions of this Agreement.
Section 22. Cooperation. Each party agrees to execute all documents and do all things necessary
and appropriate to cant' out the provisions of this Agreement.
Section 23. Applicable Law. This Agreement shall be interpreted and enforced under the laws
of the State of California.
Section 24. 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. Any party may change its address for notice by written notice
to the other party at any time:
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
AND: City Manager
City of Petaluma
Post Office Box 61
Petaluma, CA 94953
Section 25. 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
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.
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CITY OF PETALUMA
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
APPROVED:
Risk Manager
Finance Director
PETALUMA COMMUNITY ACCESS
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INSURANCE REQUIREMENTS (B -2)
Consultant's performance of the services under this agreement shall not commence until
Consultant shall have obtained all insurance required under this Exhibit and such insurance shall
have been reviewed by the City Attorney and approved by the Risk Manager. All requirements
herein provided shall appear either in the body of the insurance policies or as endorsements and
shall specifically bind the insurance carrier.
Consultant shall procure and maintain for the duration of the contract all necessary insurance
against claims now and in the future for alleged injuries to persons or damages to property which
may arise from or in connection with the performance of the services by the Consultant, the
Consultant's agents, representatives, employees and subcontractors. Required professional
liability insurance shall be maintained at the level specified herein for the duration of this
agreement and any extension thereof and for twelve additional months following the agreement
termination or expiration.
Insurance Coverage and Limits Restrictions
1. It shall be a requirement under this agreement that any available insurance proceeds broader
than or in excess of the specified minimum insurance coverage requirements and /or limits
shall be available to the additional insured. Furthermore, the requirements for coverage and
limits shall be (1) the minimum coverage and limits specified in this agreement; or (2) the
broader coverage and maximum limits of coverage of any insurance policy or proceeds
available to the named insured; whichever is greater.
2. The limits of insurance required in this agreement may be satisfied by a combination of
primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or
be endorsed to contain a provision that such coverage shall also apply on a primary and non-
contributory basis for the benefit of the City of Petaluma before the City of Petaluma's own
insurance or self - insurance shall be called upon to protect it as a named insured.
A. Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage:
a. Blanket Contractual Liability
b. Broad form property coverage
c. Personal injury
2. Insurance Services Office from covering Automobile Liability, code 1 (any auto).
3. Workers' Compensation insurance as required by the State of California and
Employer's Liability insurance.
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 coverages and limits as may be required by the City of
Petaluma.
B. Minimum Limits of Insurance
Consultant shall maintain limits no less than:
1. General Liability: $2000,000 per occurrence for bodily injury, personal injury and
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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 of
Petaluma.
C. Deductibles and Self- Insured Retentions
1. Any deductibles or self - insured retentions (SIR) must be declared to and approved by
the City of Petaluma. At the option of the City of Petaluma, either: the insurer shall
reduce or eliminate such deductibles or SIR as respects the City of Petaluma, its
officers, officials, employees, and volunteers; or the Consultant shall procure a bond
guaranteeing payment of losses and related investigations, claims administration and
defense expenses.
2. Policies containing any SIR provision shall provide or be endorsed to provide that the
SIR may be satisfied by either the named insured or the City of Petaluma.
3. The City of Petaluma reserves the right to obtain a full certified copy of any insurance
policy and endorsement. Failure to exercise this right shall not constitute a waiver of
right to exercise later.
Other Insurance Provision Requirements
Additional Insured Requirements:
1. The required general liability and automobile policies are to contain, or be endorsed
to contain the following provisions:
a. The City of Petaluma, its officers, officials, employees, agents and volunteers
are to be covered as additional insureds as respects alleged: liability arising
out of activities performed by or on behalf of the Consultant; products and
completed operations of the Consultant; premises owned, occupied or used by
the Consultant; or automobiles owned, leased, hired or borrowed by the
Consultant. The coverage shall contain no special limitations on the scope of
protection afforded to the City of Petaluma, its officers, officials, employees,
agents or volunteers.
b. Any failure to comply with reporting or other provisions of the policies
including breaches of warranties shall not affect coverage provided to the City
of Petaluma, its officers, officials, employees, agents or volunteers.
c. The Consultant'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.
d. Consultant shall furnish properly executed Certificates of Insurance from
insurance companies acceptable to the City of Petaluma and signed copies of
the specified endorsements for each policy prior to commencement of work
under this agreement. Such documentation shall clearly evidence all
coverages required above including specific evidence of separate
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endorsements naming the City of Petaluma and shall provide that such
insurance shall not be materially changed, terminated or allowed to expire
except after 30 days prior written notice by certified mail, return receipt
requested, has been filed with the City Cleric.
Such insurance shall be maintained from the time work first commences until
completion of the work under this agreement. Consultant shall replace such
certificates for policies expiring prior to completion of work under this
agreement.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A: VII.
Completed Operations
Consultant shall maintain insurance as required by this contract to the fullest amount allowed by
law and shall maintain insurance for a minimum of five years following the completion of this
project. In the event the Consultant fails to obtain or maintain completed operations coverage as
required by this agreement, the City of Petaluma at its sole discretion may purchase the coverage
required and the cost will be paid by the Consultant.
Cross - Liability
The Liability policy shall include a cross- liability or severability of interest endorsement.
Failure to Maintain Insurance Coverage
If Consultant, for any reason, fails to maintain insurance coverage, which is required pursuant to
this agreement, the same shall be deemed a material breach of contract. The City of Petaluma, at
its sole option, may terminate this agreement and obtain damages from the Consultant resulting
from said breach. Alternatively, the City of Petaluma may purchase such required insurance
coverage, and without further notice to Consultant, the City of Petaluma may deduct from sums
due to Consultant any premium costs advanced by the City of Petaluma for such insurance.
Primary and Non - Contributory
For any claims related to this project, the Consultant's insurance coverage shall be primary
insurance as respects the City of Petaluma, its officers, officials, employees, agents and
volunteers. Any insurance or self - insurance maintained by the City of Petaluma, its officers,
officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall
not contribute with it.
The additional insured coverage under the Consultant's policy shall be "primary and non-
contributory" and will not seek contribution from the City of Petaluma's insurance or self -
insurance and shall be at least as broad as CG 20 01 04 13.
Subcontractors
Subcontractor agrees to be bound to the Consultant and the City of Petaluma in the same manner
and to the same extent as Consultant is bound to the public entity under the contract documents.
Subcontractor finther agrees to include the same requirements and provisions of the agreement,
including the indemnity and insurance requirements, with any sub- subcontractor to the extent
they apply to the scope of the sub - subcontractor's work. A copy of the City of Petaluma's
Contract Document Indemnity and Insurance Provisions will be furnished to the subcontractor
upon request.
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Consultant further agrees to include with all subcontractors in their subcontract the same
requirements and provisions of this agreement including the indemnity and insurance
requirements to the extent they apply to the scope of the subcontractors work. Subcontractors
hired by Consultant agree to be bound to Consultant and the City of Petaluma in the same
manner and to the same extent as Consultant is bound to the City of Petaluma under the contract
documents. Subcontractor further agrees to include these same provisions with any sub -
subcontractor. A copy of the Owners Contract Document Indemnity and Insurance Provisions
will be furnished to the subcontractor upon request. The Consultant shall require all
subcontractors to provide a valid certificate of insurance and the required endorsements included
in this agreement prior to the commencement of any work and Consultant will provide proof of
such compliance to the City of Petaluma if requested.
Subrogation Waiver
Consultant agrees to waive subrogation rights against City of Petaluma regardless of the
applicability of any insurance proceeds, and to require all Consultants, subcontractors or others
involved in any way with the services to do likewise.
Verification of Coverage
Consultant shall furnish the City of Petaluma 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. All endorsements are to be received and approved by the City of
Petaluma before the services commence.
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