HomeMy WebLinkAboutStaff Report 4614
City of Palo Alto (ID # 4614)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 6/9/2014
City of Palo Alto Page 1
Summary Title: Approval of Agreement with Media Center
Title: Request for Approval of Agreement No. C15154285 Between the City
of Palo Alto and the Midpeninsula Community Media Center, Inc. for
Cablecasting Services in the Amount of $125,000 Per Year for a Total not to
Exceed $375,000 from July 1, 2014 Through June 30, 2017
From: City Manager
Lead Department: IT Department
Recommendation:
Staff recommends that the City Council approve, and authorize the City Manager or his
designee to execute:
1) Agreement No. C15154285 between the City of Palo Alto and the Midpeninsula Community
Media Center, Inc., in an amount not to exceed $125,000 per year ($375,000 for a three-
year term), from July 1, 2014 through June 30, 201 7, for cablecasting services subject to
appropriation of funds.
2) A contract contingency in the amount of $10,000 to cover related, additional but
unforeseen cablecasting service needs.
Background:
In 1983, a Joint Powers Agreement (JPA) was entered into by Palo Alto, Menlo Park, East Palo
Alto, Atherton and San Mateo and Santa Clara Counties for the purposes of obtaining cable
television service for residents, businesses, and institutions within all or a portion of these
jurisdictions. The City of Palo Alto (City) has been given the sole authority to act on behalf of the
JPA member communities. Cable franchise holders provide various forms of compensation
(e.g., franchise fees; public, education, and government (PEG) fees and channels, etc.) to pay
for access to and use of the JPA’s public rights-of-way.
The City’s Cable Television Ordinance provides that the City may designate a nonprofit
Community Access Organization to operate and administer its PEG facilities, equipment and
channels. In 1991, the City Council designated the Mid -Peninsula Access Corporation (MPAC) as
its Community Access Organization. In 2000, as part of the sale of the Cable Co -op system to
AT&T, a new nonprofit, the Silicon Valley Community Communications (SVCC) was formed.
City of Palo Alto Page 2
AT&T made a charitable donation of $17 million to SVCC. In August 2001, MPAC merged with
SVCC and was renamed the Midpeninsula Community Media Center, Inc. (Media Center). Since
that time, the Media Center has served as the Community Access Organization for the JPA. In
this role, the Media Center administers the JPA’s seven local PEG channels, broadcasts local
community programs, offers video production classes and workshops to community members,
and provides local election coverage. In 2013, the Media Center cablecast ed a total of 833
community programs and provided gavel-to-gavel coverage of 365 local government meetings.
Palo Alto forwards all PEG fees received from franchise holders (Comcast and AT&T) to the
Media Center in support of these services. These fees total approximately $340,000 annually.
The AT&T donation was used by the Media Center to purchase a state -of-the-art facility (studio,
video production and training facility) located at 900 San Antonio Road in Palo Alto. The
donation monies are also used, on an ongoing basis, to fund a portion of the Media Center’s
annual operating expenditures. Since the Media Center owns its video production facility and
has ongoing income from the AT&T donation to supplement its operating expenditures, there is
a significant barrier to entry for any other provider of this service.
The City’s existing CAO agreement with the Media Center expires on June 30, 2018. The City
has a separate agreement with the Media Center for cablecasting and other production services
in the amount of $125,000 per year. This agreement is set to expire on June 30, 2014.
Discussion:
Staff requests that Council approve a three-year agreement between the City and the Media
Center, in an amount not to exceed $125,000 annually, starting on July 1, 2014. This agreement
funds: 1) cablecasting of Palo Alto City Council, Council Committee and Board and Commission
meetings; 2) cablecasting of the Mayor’s State of the City address; 3) cablecasting of the annual
City Council retreat; 4) cablecasting of Palo Alto special events, programs and activities; 5) I-Net
operational support services; and 6) web indexing and archiving services. The Media Center will
bill for these services monthly based upon the standard rates established in the CAO agreement
with the JPA.
Resource Impact:
Funds for this agreement are included in the Information Technology Department’s Fiscal Year
Proposed Budget, which is subject to City Council adopt ion on June 16, 2014. These
expenditures are offset by franchise fee revenue received from Comcast and AT&T. This
revenue is estimated to be approximately $824,000 for Fiscal Year 2015 .
Environmental Review:
This approval of the contract is not considered a project under the California Environmental
Quality Act; therefore, no environmental assessment is required.
Attachments:
Attachment A - Contract Between City of Palo Alto and Media Center (PDF)
ATTACHMENT A
CONTRACT NO. (---1 A -5-1‘a 6)5 -
BETWEEN THE CITY OF PALO ALTO, CALIFORNIA AND
MIDPENINSULA COMMUNITY MEDIA CENTER, INC.
FOR CABLECASTING SERVICES
This Cablecasting Services Agreement (the "Agreement"), dated as of July 1,
2014, is entered into by and between the CITY OF PALO ALTO, a California chartered municipal
corporation (the "City"), and the MIDPENINSULA COMMUNITY MEDIA CENTER, INC., a
corporation organized under the California Nonprofit Public Benefit Corporation Law (the
"Media Center") (individually, a "Party" and, collectively, the "Parties"), in reference to the
following facts and circumstances:
RECITALS:
1. The City is a party to the Amended and Restated Joint Exercise of Powers
Agreement, dated June 23, 2008, and as hereinafter may be amended ("JPA Agreement"), by
and between the Cities of Palo Alto, East Palo Alto and Menlo Park, the Town of Atherton and
the Counties of San Mateo and Santa Clara (collectively, "Joint Powers" or "JPA"), and is
authorized to act on behalf of the JPA members.
2. The City desires to provide support for the use of cable television public,
educational, and government ("PEG") access channels provided pursuant to federal and City
law.
3. Pursuant to the Digital Infrastructure and Video Competition Act of 2006,
codified at Cal. Util. Code §§ 5800 et seq. ("DIVCA"), the California Public Utilities Commission
("CPUC") has granted separate video franchises to AT&T and Comcast to serve areas that
include the jurisdictions of the JPA members. AT&T, Comcast and any other entity franchised by
the CPUC as a video service provider to provide video service within the jurisdictional area of
any JPA member is referred to, individually, as "Cable Company" and, collectively, as "Cable
Companies".)
4. DIVCA permits, and the City's Cable Television Ordinance No. 4636,
adopted May 8, 2000, provides that (A) the City may designate a nonprofit access management
entity ("Access Corporation") to operate and administer PEG access facilities, equipment and
channels ("PEG Facilities" or "PEG Facilities and Channels," as appropriate), (B) certain channel
capacity shall be provided by Cable Companies for PEG access, (C) certain ongoing payments
shall be made by Cable Companies for PEG Facilities, and (D) certain services shall be provided
by Cable Companies to support the operations of the PEG Facilities and Channels.
5. By an Agreement between the City and the Mid -Peninsula Access
Corporation ("MPAC"), dated July 1, 2011, MPAC agreed to provide certain services to the City
relating to support of City governmental access programming.
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6. By an Agreement of Merger, dated as of August 20, 2001 ("Merger
Agreement"), by and between Silicon Valley Community Communications, Inc. ("SVCC"), and
MPAC, SVCC was merged into MPAC, with MPAC being the surviving corporation, and MPAC
was subsequently renamed the Media Center.
7. The City, by City Council resolution of October 22, 2001, has designated
the Media Center as the Access Corporation to operate and manage the PEG Facilities and
Channels.
8. By an Agreement between the City and the Media Center, dated July 1,
2011, and expiring on June 30, 2018, the Media Center agreed to provide certain services to the
City and the JPA relating to support of PEG and City governmental access programming.
9. The Media Center has agreed to continue to serve as the Access
Corporation designated by the City and to serve the JPA community by providing PEG access
facilities, programming and services.
10. The City wishes the Media Center to continue to provide, and the Media
Center wishes to provide, to the City certain services relating to and supporting the
development, production and cablecasting of City governmental access programming.
NOW, THEREFORE, in consideration of the recitals and the following mutual
covenants, terms and conditions, the Parties agree:
SECTION 1. TERM OF AGREEMENT; TERMINATION
1.1 The term of this Agreement is one (1) year, commencing on July 1, 2014,
unless it is terminated earlier, as provided in this Agreement.
1.2 This Agreement may be extended, by mutual agreement of the Parties, in
writing, for up to two (2) additional one-year periods.
1.3 On or before January 1, 2015, the Media Center shall give the City written
notice of its intention to seek an extension. If the Agreement is extended, on or before January
1, 2016, the Media Center shall give the City written notice of its intention to seek an additional
extension.
1.4 On or before March 31, 2015 (and March 31, 2016, if the Agreement is
extended in 2015), the City shall respond to the Media Center's request for an extension,
stating either the City's decision to extend or not to extend. The City shall not be required to
provide any reason for approving or denying the Media Center's request.
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1.5 Either Party may terminate this Agreement for convenience, provided
that Party serves the other Party with not less than one hundred eighty (180) days' prior
written notice.
SECTION 2. SCOPE OF SERVICES AND COMPENSATION
2.1 General. The Media Center's work for the City shall be scheduled at the
City's convenience based on the deadlines mutually agreed to between the Media Center and
the City. Absence of the Media Center's staff will not justify the Media Center's failure to
comply with deadlines. The Media Center will provide technical expertise and trained staff for
City projects. The Media Center will operate and maintain equipment for City projects.
2.2 Administration. The Media Center shall maintain a backup library of
DVDs of City meetings for a period of one year after the expiration of the original term plus all
of the extension terms.
2.3 Marketing and Publicity. The Media Center will provide marketing and
publicity of City programs, including, but not limited to, television announcements. The City will
augment this publicity as needed.
2.4 Services and Compensation.
2.4.1 Cablecasting services: The Media Center shall cablecast all City Council
and Council Committee meetings, as set forth in Exhibit A, attached hereto and made a part
hereof. These meetings will be aired on Government Access Channel 26. The Media Center shall
bill the City on a monthly basis, at the hourly rates set forth in Exhibit B, attached hereto made a
part hereof, for actual cablecasting hours.
2.4.2 Other production services and special events: The Media Center shall
cablecast the Mayor's State of the City address and the annual City Council retreat. Other video
production needs may be identified during the year. The Media Center will only undertake new
production requests that have been approved by the City's Cable Coordinator. The Media
Center shall bill the City on a monthly basis for hours associated with these services, in
accordance with the hourly rates set forth in Exhibit B.
2.4.2.1 Other productions and special events.
(A) The City will provide a minimum of three (3) weeks' prior written
notice of its desire to have other productions, special events or
activities videotaped. Subject to any pre-existing contractual
obligations and equipment availability, the Media Center shall
provide the services requested by the City.
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2.4.3 Web services: The Media Center shall index and archive City meetings and
host them on the Media Center website. The Media Center shall use YouTube format for
indexing and archiving services. Any alternate format shall be mutually agreed to by the Parties.
Meeting archives will be maintained by the Media Center for a period of three (3) years. The
Media Center shall bill the City on a monthly basis for hours associated with these services, in
accordance with the hourly rates set forth in Exhibit B.
2.4.4 Institutional Network (I -Net) services: The Media Center shall provide
operational support services for the I -Net as needed. The Media Center shall bill the City on a
monthly basis for hours associated with these services, in accordance with the hourly rates set
forth in Exhibit B.
2.4.5 Compensation: The total amount of the Media Center's billings shall not
exceed One Hundred Twenty -Five Thousand Dollars ($125,000) per year.
2.4.6 Prompt Payment. The City will pay the Media Center within thirty (30)
days of receipt of a proper invoice from the Media Center.
SECTION 3. INDEMNITY; LIMITATION OF LIABILITY
3.1 The Media Center shall indemnify and defend the City, and its elected
and appointed officers and employees (an "Indemnified Party" or collectively "indemnified
Parties"), against any third -party claim (a) arising or resulting from or out of the failure to
comply with any applicable laws, rules, regulations or other requirements of local, state or
federal authorities, or (b) of libel, slander, invasions of privacy, or infringement of common law
or statutory copyright, which claim, directly or indirectly, results from the Media Center's use,
or the Media Center's supervision of use by others, of channels, funds, equipment, facilities or
staff granted under this Agreement or any franchise agreement. The Media Center shall pay
any costs or damages finally awarded by a court of competent jurisdiction or agreed upon in
settlement. The Media Center's obligation under this Section are contingent on the Media
Center receiving prompt notice of any claim from the applicable indemnified Party, sole control
of the defense and settlement of any dispute (provided that an Indemnified Party may
participate in such defense with counsel of its own choice at its own cost), and reasonable
cooperation, at the Media Center's sole expense, from the Indemnified Parties.
3.2 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL,
INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND
LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF THE PARTIES HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MEDIA CENTER'S TOTAL
CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR
TORT OR OTHERWISE, WILL NOT EXCEED $500,000. THIS SECTION DOES NOT LIMIT EITHER
PARTY'S LIABILITY FOR BODILY INJURY OR PROPERTY DAMAGE.
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SECTION 4. COPYRIGHTS
4.1 The City shall own the copyright of any programs created or produced as
a result of this Agreement, and the Media Center shall make no claim of copyright or ownership
of any such programming.
SECTION 5. DISTRIBUTION RIGHTS
5.1 Unless otherwise directed by the City, the Media Center shall ensure that
all programs produced under this Agreement shall be distributed on the governmental access
channel(s). This paragraph shall not be interpreted to restrict other distribution (beyond
distribution on the channel(s) authorized by this Agreement), so long as such other distribution
is with the prior written consent of the City and consistent with any pertinent guidelines
established by the City, applicable PEG access operating policies and procedures, and applicable
law.
SECTION 6. INSURANCE
6.1 The Media Center shall obtain and maintain at its sole cost and expense
in full force and effect at all times during the term of this Agreement the insurance as required
by this Agreement.
(A) Commercial general liability insurance, including protective, completed
operations and broad form contractual liability, property damage and personal injury coverage,
and comprehensive automobile liability including owned, hired, and non -owned automobile
coverage. The limits of such coverage shall be: (1) bodily injury including death, $1,000,000 for
each person, each occurrence and aggregate; (2) property damage, $1,000,000 for each
occurrence and aggregate.
(B) Fire All Risk Insurance on all equipment and facilities, including fixtures,
funded in whole or in part under this Agreement or any franchise agreement with a Cable
Company to the value of their replacement cost. The insurance shall include, at a minimum,
insurance against loss or damage caused by or beyond the user's control, theft, fire or natural
catastrophe. The City shall be shown as lien holder on all policies and certificates.
(C) Full Workers' Compensation Insurance and Employer's Liability within
statutory limits as required by California law with one or more insurance carriers with a Best's
Key Rating Guide rating of A:VII or higher, which are admitted to transact insurance business in
California, and are otherwise satisfactory to the City.
(D) Cablecasters' Errors and Omissions Insurance in an amount not less than
$1,000,000, each occurrence and aggregate covering the content of productions which are
cablecast on the access channel(s) in, at a minimum, the following areas: libel and slander;
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copyright or trademark infringement; infliction of emotional distress; invasion of privacy;
plagiarism; and the misuse of musical or literary materials.
(E) With the exception of workers' compensation and employer's liability
insurance, the City shall be named as an additional insured on all aforementioned insurance
coverage with respect to the Media Center's performance under this Agreement. The policies
shall provide that no cancellation, major change in coverage or expiration may be affected by
the insurance company or the Media Center without first giving the City thirty (30) days written
notice prior to the effective date of such cancellation or change in coverage. Any insurance or
self-insurance maintained by the City, its officers, agents, employees, or volunteers shall be in
excess of the Media Center's insurance and shall not contribute to it.
(F) The Media Center shall file with the City proof of insurance coverage as
follows: (1) Commercial General Liability and Workers' Compensation upon the
commencement of the employment of the Executive Director; (2) equipment insurance upon
the acquisition of any equipment; and (3) cablecasters' error and omission insurance within
thirty (30) days of the commencement of cablecasting of programming on the designated
access channels.
SECTION 7. NONDISCRIMINATION
7.1 The Media Center 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.
7.2 The Media Center shall not discriminate in the delivery of services on the
basis on race, color, creed, religion, sex, sexual preference, marital status, ancestry, national
origin or physical or mental handicap.
SECTION 8. INDEPENDENT CONTRACTOR
8.1 It is understood and agreed that the Media Center is an independent
contractor and that no relationship of principal and agent or employer and employee exists
between the Parties. If in the performance of this Agreement any third persons are employed
by the Media Center, such persons shall be entirely and exclusively under the control, direction
and supervision of the Media Center. All terms of employment, including hours, wages,
working conditions, discipline, hiring and discharging or any other term of employment shall be
determined by the Media Center, and the City shall have no right or authority over such
persons or terms of employment.
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SECTION 9. ASSIGNMENT
9.1 Neither this Agreement, nor any interest herein, nor control of the Media
Center shall be assigned, encumbered or transferred by the Media Center or its current board
or members to any other person, either directly or indirectly, except as may be expressly
authorized in writing by the City prior to any such assignment, encumbrance or transfer.
SECTION 10. RECORDS
10.1 The Media Center shall maintain all necessary books and records, in
accordance with generally accepted accounting principles.
10.2 Upon receipt of a reasonable request of the City, the Media Center shall,
at any time during its normal business hours, make available to the City or its agents or
representatives all of its records with respect to all matters covered by this Agreement.
SECTION 11. NON -APPROPRIATIONS
11.1 The provisions of this Agreement are subject to the fiscal provisions of
the City Charter and the Palo Alto Municipal Code. This Agreement will terminate without any
penalty (a) at the end of any City fiscal year in the event that funds are not appropriated for the
following fiscal year, or (b) at any time within the City's fiscal year in the event that funds are
only appropriated for a portion of the fiscal years and funds for this Agreement are no longer
available.
SECTION 12. DEFAULT; REMEDIES FOR DEFAULT
12.1 The Media Center shall be in default of this Agreement if it fails to
perform any of its material obligations under this Agreement. lithe Media Center fails to cure a
default within forty-five (45) days after the City gives the Media Center notice of default, the
City shall give written notice to the Media Center that it has materially breached this
Agreement, and the notice of termination shall become effective on the date specified in the
notice by the City.
12.2 Section 12.1 notwithstanding, the Media Center shall be in immediate
default of this Agreement if any of its officers, employees, or agents misappropriates public
funds provided to the Media Center under this Agreement by the City or any Cable Company
pursuant to a franchise agreement, or if it fails to obtain and maintain its tax exemption status
under Section 501(c)(3) of the Internal Revenue Code of 1986.
SECTION 13. NOTICES
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13.1 All notices and other communications to be given by either Party may be
given, in writing, by depositing the same in the United States mail, postage prepaid and
addressed to the appropriate Party, as follows:
To City:
Office of the City Clerk
City of Palo Alto
Post Office Box 10250
Palo Alto, CA 94303
To Media
Center: Midpeninsula Community Media Center, Inc.
900 San Antonio Road
Palo Alto, CA 94303
13.2 Any Party may change its address for notice by written notice to the
other Party at any time.
SECTION 14. MISCELLANEOUS PROVISIONS
14.1 Time is of the essence in this Agreement in the performance of all
covenants, terms and conditions of this Agreement.
14.2 Each Party agrees to execute all documents and do all things necessary
and appropriate to carry out the provisions of this Agreement.
14.3 This Agreement shall be governed and interpreted in accordance with the
laws of the State of California, without regard to its conflicts of law rules or principles.
14.4 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.
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IN WITNESS WHEREOF, the Parties by their duly appointed representatives have
executed this Agreement as of the date written above.
ATTEST:
City Clerk
APPROVED AS TO FORM:
CITY OF PALO ALTO
Mayor
MIDPENINSULA COMMUNITY MEDIA
CENTER, INC.
Senior Asst. City Attorney By:
AAK
APPROVED: Name: AviarZ /�'�/474:44
Title: A6/"�S-/(1P0,'c i y
Assistant City Manager
Director of Administrative
Risk Manager
By:
Name:
Title:
oaait 1 kael
Taxpayer Identification No.
77_06950,R/
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EXHIBIT A
Council and Council Committee Meetings
The Media Center shall cablecast the following meetings:
• All Palo Alto City Council meetings held in the City Council Chambers or Council Conference
Room
• All Palo Alto Planning and Transportation Commission meetings held in the City Council
Chambers or Council Conference Room
• All Palo Alto Utilities Advisory Commission meetings held in the City Council Chambers or
Council Conference Room
• All Palo Alto City Council Finance Committee meetings held in the City Council Chambers or
Council Conference Room
• All Palo Alto City Council Policy and Services Committee meetings held in the City Council
Chambers or Council Conference Room
• All Palo Alto Architectural Review Board meetings held in the City Council Chambers or
Council Conference Room
• All Palo Alto Historic Resources Board meetings held in the City Council Chambers or Council
Conference Room
• All Human Relations Commission meetings held in the City Council Chambers or Council
Conference Room
• Ali Library Advisory Commission meetings held in the City Council Chambers or Council
Conference Room
• All Parks and Recreation Commission meetings held in the City Council Chambers or Council
Conference Room
• All Public Art Commission meetings held in the City Council Chambers or Council Conference
Room
• All Regional Housing Mandate Committee meetings held in the City Council Chambers or
Council Conference Room
• Any special meetings as requested by the Palo Alto City Council or Palo Alto City Manager or
his designee, that are held in the City Council Chambers or Conference Room, provided five
working days' notice is given.
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EXHIBIT B
The Media Center shall charge the City according to the following schedule of rates for
performing the following services related to governmental access programming:
Meeting Coverage (three hour minimum):
City Hall Video Coverage: $91 per hour
Single Camera Coverage with City
equipment at location: $91 per hour
Single Camera Coverage with Media
Center equipment: $104 per hour
Remote video coverage with the studio $235 per hour
in a box. Crew of 3 requires 4.0 hrs/set
up, plus breakdown and transportation
time (minimum of 2 hrs of meeting coverage)
Cancellation fee (for a JPA member's
cancellation of scheduled Media Center
coverage without 24 hours' prior notice
to the Media Center): $235 flat fee
Additional Services:
Web indexing and archiving: $167 per meeting
Server storage for archived meetings: $135 per month
Video clip preparation: $50 per hour
1 -Net Services $100 per hour
Program Development:
Site visit and planning: $50 per hour
Videography with equipment: $100 per hour
Editing: $65 per hour
Hosting and preparation: $50 per hour
Studio Crew per person: $40 per hour
Duplication of videotapes/DVD's of meetings:
Meetings under two hours
Meetings over two hours
$20 per dup
$30 per dup
The foregoing rates shall remain unchanged though December 31, 2014. Thereafter, the
Media Center may increase these rates, no more often than once per calendar year,
provided that, absent the prior written approval and consent of the City, any such increase
in rates shall not exceed the amount of the increase in the Bay Area Consumer Price Index -
All Urban Consumers for the San Francisco -Oakland -San Jose MSA- during the preceding
calendar year.
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