HomeMy WebLinkAbout2002-07-08 City Council (5)TO:HONORABLE CITY COUNCIL 5
FROM:CITY MANAGER DEPARTMENT:ADMINISTRATIVE
SERVICES
DATE:JULY 8, 2002 CMR: 328:02
SUBJECT:REQUEST FOR APPROVAL OF AGREEMENT BETWEEN THE
CITY OF PALO ALTO ON BEHALF OF THE JOINT POWERS
AND MIDPENINSULA COMMUNITY MEDIA CENTER, INC. AND
AGREEMENT BETWEEN THE CITY OF PALO ALTO AND
MIDPENINSULA COMMUNITY MEDIA CENTER, INC. IN THE
AMOUNT OF $160,000
REPORT IN BRIEF
In 1991, the Midpeninsula Access Corporation (MPAC) was established by the City as
the Community Access Organizatio.n (CAO) to bring community media services to Pal0
Alto, Menlo Park, East Palo Alto, Atherton and portions of San Mateo and Santa Clara
Counties. In July 2000, following the sale of the cable system from Cable Co-op to
AT&T, the Council approved a new franchise agreement with AT&T. A new non-profit,
Silicon Valley Community Communications (SVCC), was formed out of the sale, and
was poised to merge with MPAC. The City entered into several short-term agreements
with MPAC to provide time for the merger to be finalized and for an agreement to be
negotiated between the City and the new merged entity. On August 20, 2001 MPAC
merged with SVCC and was renamed the Midpeninsula Community Media Center, Inc.
(Media Center). Subsequently, Council designated the Media Center as the CAO serving
the JPA. Since that time, staff has worked with the Media Center to negotiate the terms
of a new CAO agreement. This report transmits the proposed new CAO agreement
which has an expanded scope of services including: 1) a term of up to nine years
coinciding with the expiration of the franchise agreement; 2) the facilities and equipment
requirements that currently exist in the City’s agreement with SVCC, guaranteeing the
existirig level of facilities and equipment for the CAO; 3) responsibility for governmental
channel administration; 4) JPA involvement in the development of annual plans and
budgets; 4) the establishment of a standard set of hourly rates; and 5) the payment of
public, education, and government (PEG) fees negotiated in the AT&T franchise
agreement approximating $275,000 annually to the Media Center. In addition to the
CAO agreement, this report transmits an agreement between the City of Palo Alto and the
CMR: 328:02 Page 1 of 6
Media Center in the amount of $160,000 for cable casting and other production services
for a term of up to three years.
CMR: 328:02 Page 2 of 6
RECOMMENDATION
Staff recommends that the City Council approve:
1)An agreement between ~the City of Palo Alto, representing the JPA communities
(Palo Alto, Menlo Park, East Palo Alto, Atherton and portions of San Mateo and
Santa Clara Counties), and Midpeninsula Community Media Center, Inc. from July 1,
2002 through June 30, 2005, with the option to extend for two additional three-year
periods, for Public, Education, and Government (PEG) access services.
2)An agreement between the City of Palo Alto and the Midpeninsula Community
Media Center, Inc. in t~e amount of $160,000 from. July 1, 2002 through June 30,
2003 for cablecasting and other production services.
BACKGROUND
In 1983, a Joint Powers Agreement (JPA) was entered into by Palo Alto, Menlo Park,
East Palo Alto, Atherton and portions of San Mateo and Santa Clara Counties for the
purposes of obtaining cable television service for residents, businesses, and institutions
within these jurisdictions. The JPA gives Palo Alto the sole authority to grant and
administer a cable television franchise on behalf of the JPA member communities.
In 1986, a cable television franchise agreement was executed with Cable Co-op.
Subsequently, the City Council designated Mid Peninsula Access Corporation (MPAC)
as the CAO to bring community media services to the JPA service area. Sincethat time,
MPAC has served as the CAO for the JPA and the City has continued to invest in its
development.
In 1999, the Cable Co-op Board of Directors and subscribers approved the sale of Cable
Co-op’s system to AT&T. As a condition of the sale, AT&T made a charitable donation
of $17 million to SVCC, a new public benefit corporation established by Cable Co-op.
On July 24, 2000, the City Council approved a transfer of the cable system from Cable
Co-op to AT&T and a new franchise agreement with AT&T. The Council also approved
an agreement with SVCC for the provision of facilities and equipment for MPAC. Since
its establishment, SVCC and MPAC were actively engaged in merger discussions and a
merger of the two entities occurred on August 20, 2001. Under the merger, MPAC is the
surviving organization and was renamed the Media Center. On October 22, 2001,
Council approved a resolution designating the new entity,the Media Center, as the CAO
serving the JPA. Following the Council designation, staff began hegotiating a new
agreement with Media Center. On December. 17, 2001, the Council approved a short-
term (six month) agreement with Media Center to provide time for the new agreement to
be finalized.
CMR: 328:02 Page 3 of 6
DISCUSSION
CAO Agreement
Staff requests Council approval of a proposed new agreement between Media Center and
the City of Palo Alto on behalf of the JPA. The terms of the new agreement are
substantially different from the terms of the existing agreement. The key terms are
discussed below.
Term: The new agreement is for a three-year time period with the option to extend for
two additional three-year periods. This term was established to coincide with the term of
the AT&T franchise agreement.
Facilities and Equipment: When the Council approved the AT&T franchise agreement, it
also approved an agreement with SVCC for the provision of facilities and equipment for
the CAO, through the term of the franchise agreement. The CAO agreement incorporates
the facility and equipment provisions that exist in the City’s agreement with SVCC,
which guarantees at least the existing level of facilities and equipment.
Government Channel Administration: In the past, City staff administered programming
on government channel 26. Recently, the City began to transition these duties to the
Media Center. Since these duties are closely aligned with Media Center’s mission and
responsibilities, Media Center is better equipped to handle them for the JPA. In the
proposed new agreement, Media Center would be responsible for government channel
administration. These duties include coordinating JPA member requests for use of
channel 26, program scheduling, program acquisition and production, channel publicity
and maintenance of the scrolling cable text.
Annual Planning Process: The new agreement provides for more JPA involvement in the
development of annual plans and budgets. Each year, Media Center would submit its
annual plan and budget to the City,. outlining the activities and programs that are planned
for the following fiscal year. The JPA would have an opportunity to comment on the
plans and Media Center would take the comments into account when finalizing its annual
plan and budget.
Standard Rates: The new agreement implements a new set of standard hourly rates that
will be used by JPA members when contracting with Media Center for cablecasting and
other production services.
Funding: In the new agreement, the City would continue to pass along the entire payment
of PEG fees from AT&T to Media Center. These fees are $.88 per subscriber per month,
or approximately $275,000 annually. In the past, Cable Co-op provided PEG fees of
about $150,000 annually. The PEG fees negotiated in the AT&T Franchise Agreement
represent an increase of approximately $125,000 annually.
CMR: 328:02 Page 4 of 6
CPA A~eement
Staff also requests Council approval of a separate agreement between the City of Palo
Alto and Media Center in an amount not to exceed $160,000. This agreement funds: 1)
cablecasting of Palo Alto City Council, Council Committee and board and commission
meetings in an amount not to exceed $60,000; and 2) programming of Palo Alto special
events, programs and activities in an amount not to exceed $100,000. Media Center will
bill for these services monthly based upon the standard rates established in the JPA
agreement.
In the past, the City of Palo Alto has given the CAO $100,000 to be used for PEG access
programming and services at its sole discretion. In this agreement, staff recommends
directing the use of this money towards Palo Alto’s specific needs. These needs include
the production of a monthly magazine show (CityBeat), cablecasting of Town Hall
meetings, the production of a summary video of Town Hall meetings, and Council/City
Manager call-in shows, all to be aired on the public and!or government channels. With
the City’s current revenue decline, the resources that the SVCC merger brings to the
CAO, and the increased PEG fees negotiated in the AT&T franchise agreement, staff
believes this change to meet Palo Alto’s need is justified.
RESOURCE IMPACT
Funds for the CAO agreement are generated through AT&T’s payment of PEG fees
(approximately $275,000 annually) to the City on behalf of the JPA. Funds for the CPA
agreement were appropriated in the Administrative Service Department’s 2002-03
Budget. CPA agreement expenditures of $160,000 are offset by franchise fee revenues
paid to the City by AT&T, which amounted to $375,640 in calendar year 2001.
POLICY IMPLICATIONS
The recommendation does not represent a change to the Council practice of funding PEG
access services provided by the CAO through PEG fees paid by the cable operator. This
report does recommend a change in the Council practice of providing City .funding~ in the
amount of $100,000, to the CAO for it to use at its sole discretion.
ENVIRONMENTAL REVIEW
This is not a project under the California Environmental Quality Act.
ATTACHMENTS
Attachment A: Agreement between the Media Center and the City of Palo Alto
representing the JPA
Attachment B: Agreement between the Media Center and the City of Palo Alto
CMR: 328:02 Page 5 of 6
PREPARED BY:
David Ramberg
IT Manager, External Services
DEPARTMENTAL HEAD APPROVAL:
CITY MANAGER APPROVAL:
CARL YEATJ
Director, Addlainistrative Services
EMILY HARRISON
Assistant City Manager
CMR: 328:02 Page 6 of 6
ATTACHMENT A
comm c
JOINT POWERS AND THE
MIDPENINSULA COMMUNITY MEDIA CENTER,
This AGREEMENT, dated , 2002, is entered
into by and between the CITY OF PALO ALTO, a California municipal
corporation, ON BEHALF OF THE JOINT POWERS ("City"), and the
MIDPENINSULA COMMUNITY MEDIA. CENTER, INC., a California nonprofit
corporation ("Media Center"), in reference to the following facts
and circumstances:
HECITALS:
i. The City is a party to the Joint Exercise of Powers
Agreement, dated July 26, 1983 ("JPA Agreement"), by and between
the Cities of Paio. Alto, East Palo Alto and Menlo Park, the Town
of Atherton and the~Counties of San Mateo and Santa Clara, as may
be amended ("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. The City has granted a franchise to TCI~ CABLEVISION
OF CALIFORNIA, INC., locally ~known as AT&T Broadband. ("TCI"); TCI
and any other entity granted a cable television franchise by the
City to operate a .cable television system in the City is
hereinafter referred to individually as "Cable Company" and
collectivelyas "Cable Companies".
4. The City’s Cable Televisioh Ordinance No. 4636,
adopted May 8, 2000, and the Cable Television Franchise Agreement
by and between the City, on behalf of the JPA, and TCI, dated July
24, 2000 ("Franchise Agreement"), provide 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
Charmels," as appropriate), (B) certain channel capacity shall be
provided by TCI for PEG accesS, (C) certain ongoing payments shall
be made by TCI for PEG Facilities, and (D) certain services shall
be provided by TCI to support the operations of the PEG Facilities
and Charmels.
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5. By an Agreement between the City, on behalf of the
JPA, and Silicon Valley Community Communications, Inc. ("SVCC"),
dated July 24, 2000 ("City/SVCC Agreement"), SVCC agreed, among
other things, to make certain funds available to, and furnish
certain services, facilities and equipment, to, the Access
Corporation.
6. By an Agreement of Merger, dated as of August 20,
2001 ("Merger Agreement"), by and between SVCC and Mid-Peninsula
Access Corporation ("MPAC"), SVCC was merged into MPAC, with MPAC
being the surviving corporation, and MPAC was subsequently renamed
Media Center.
7. The city, by City Council resolution of October 22,
2001, has designated Media Center as the Access Corporation to
operate, and manage the PEG Facilities and Channels.
8. Media: Center has agreed to serve as the Access
Corporation designated by the City and to serve the JPA community
by providing PEG. access facilities, programming and services.
NOW, THEREFORE, .in consideration of the recitals and the
following~ mutual covenants, terms and conditions, the parties
agree:
SECTION 1. TERM OF AGREEMENT; TERMINATION
I.i The .term~ Of this Agreement is three (3) years,
commencing on July i, 2002, unless it is terminated earlier, as
provided in this Agreement.
1.2 This Agreement may be extended, by mutual agreement
of the City and Media Center, in writing, for up to two (2)
additional three-year periods.
1.3 on or before January i, 2005, Media Center shall
give the City written notice of its intention to seek an
extension. If the Agreement is extended, on or before January i,
2008, Hedia Center shall give written notice of its intention to
seek an additional extension.
1.4 oh or before March 31, 2005 (and March 31, 2008, if
the Agreement is extended in 2005), the City shall respond to
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 Media
Center’ s request.
1.5 A 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
2.1 In exchange for City agreeing to designate Media
Center as the Access Corporation and fo~ the funding provided by
the City to Media Center pursuant to this Agreement, Media Center
shall provide the services, set forth in Sections 2.2-2.5.
22 With respect to the public access channel(s), Media
Center shall:~
¯" (A)Operate and manage the public access cable
channel(s) for public and community access programming purposes,
including the primary purpose of administering, coordinating, and
assisting on a nondiscriminatory basis requests by the public for
use of the public access channel(s).
(B) 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 progrm~ing purposes, whether individuals, groups/ or
organizations, on a first-come, first-served nondiscriminatory
basis, pursuant to ~operating rules promulgated by Media Center.
.Media Center shall provide access to equipment and facilities to
all who satisfactorily complete training classes taught by Media
Center or. who receive certifications from Media Center which
identify users who have satisfied training requirements through
means other thanthat offered in Media Center training classes
2.3 With regard to the educational access channel(s),
Media Center shall operate and manage the~ educational access
channel(s) for educational purposes, including administering,
coordinating, scheduling, and assisting educational institutions’
requests for use of the educationa! access channel(s).
Notwithstanding the foregoing, it is understood that two
educational access channels are currently managed and operated by
Stanford University and De Anza Community College, respectively,
and that those two institutions shall continue to do so with
regard to each institution’s respective ~hannel until or unless
the City otherwise directs Media Center to operate and manage
those channels.
2.4 With regard to the governmental access ~channel(s),
Media Center shall:
(A) Operate and. manage the governmental access
channel(s) for governmental purposes, including administrating,
coordinating, scheduling, and assisting JPA members’ requests for
use of those channel(s). Media Center’s governmentalaccess
channel responsibilities shall include program acquisition and
production, progrm~ scheduling, live cablecasting of local agency
..meetings, coordination of playback tapes oflocal agency meetings,
channel publicitY, publication and distribution of a governmental
access channel(s)schedule, coordination of channel switching with
TCI and any otherCable ComPanY, and maintenance of cable scrolls.
’(B), in consultation with the JPA members, develop (i)
guidelines for the scheduling and prioritization of governmental
access programming requests by JPA members, (2) service level
standards that Media Center shall meet in responding to and
carrying out JPA members’ requests relating to governmental access
channe! programming, and (3) standards that JPA members shall meet
in the timing and nature of their requests to the Media Center
relating to governmental access programming. These guidelines and
the service standard levels shall be subject to the approval of
the JPA Wor:king Group.("JPA Working Group" shall have the meaning
given.to it in the JPA Agreement.)
(C) Media Center shall charge JPA members according to
the following schedule of rates for performing the following
services related to governmental access programming:
City Hall Video Coverage:
singLecamera coverage with City
equipment at location:
Single Camera Coverage with Media
Center equipment:
$ 75 per hour
$ .75 per hour
$i00 per hour
Cancellation fee (for a JPA member’s
cancellation of scheduled Media Center
coverage without 24 hours’ prior notice
the Media Center):$225 flat fee
~Program Production:
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Program Development
Videography
Editing
Hosting and preparation
$i00 per hour
$ 75 per hour
$I00 per hour
$i00 per hour
Studio Crew per person $i00 per hour
Remote video coverage with the studio $225 per hour
in a box. Crew of 3 requires 4.0 hrs/set
up, plus breakdown and transportation
time (minimu~ of 2 hrs of meeting coverage)
Dubbing ~of videotapes:
I-S copies
4 + copies
$20 per hour + $5 per tape
$30 per hour + $5 per tape
The foregoing rates shall remain unchanged though December 31,
2002. Thereafter, the Media Center may increase these rates, no
more often than-once per calendar year, provided t~at, absent the
prior consent of the City, any such increase in rates shall not
exceed the amount of the increase in the Bay Area Consumer Price
Index during the preceding year.
2.5 With regard to all PEG access channels generally,
Media Center shall:
(A) Manage a video production studio, facility and
equipment;, and make. such studio, facility and equipment available
for PEG use at such times and dates as are reasonably determined
by Media Center and are consistent with the lawful purpose of PEG
access.
(B) .Develop policies and procedures for the use and
operation of PEG Facilities and Channels that are consistent with
the lawful purpose of PEG access, and file such policies and
procedures with the City.
(C) Operate and administer the PEG Facilities and
Channels in compliance with applicable laws, rules, regulations,
and in compliance with the franchise agreements between the City
and the Cable Companies.
(D) Train JPA residents and, upon request, City and
school or college employees in the techniques of video product±on,
and provide technical advice in the creation, development and
execution of productions~ The Media Center may charge JPA
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residents and school and college employees a nominal¯ fee for such
training.
(E) Provide for the playback/cablecasting of programs on
the PEG. access chalmnel(s). Media Center shall cablecast, at a
minimum, the following average nmnbers Of hours of local original,
replayed,and outside video-produced programming on the PEG
channels:
(i)Fifty (50) hours per week on each activated
public access channel;
/!
(ii)After a reasonable start-up period, forty (40)
hours per week on each activated educational
access, channel which, subject to Section 2.3,
the Media Center is responsible for operating
and managing; and
(iii)Fifteen (15) hours per week on each
governmental access channel. The parties~
further agree to consult in good faith and
agree on increasing this minimum requirement
during the course of this Agreement.
(F) Provide regular maintenance and repair of all video
equipment purchased with monies received pursuant ¯ to this
Agreement or received pursuant to the franchise agreementsbetween
the City and the Cable Companies.
(G) Support special needs groups, including but not
limited to the hearing impaired, in program production through
training and other means.
(H) A~tively promote the use and benefit of the PEG
Facilities and Channels to cable subscribers, the public, PEG
access users, and the Cable Companies.
.(I) Undertake other PEG access programming activities
and services as may be deemed appropriate by the City or Media
Center and consistent with the obligation to facilitate and
promote access progranm~ng and to provide non-discriminatory
access.
SECTION 3. OPEN ACCESS TO CHANNELS~
3.1 Media Center shall provide access to the PEG access
channel(s) to- eligible users regardless of~ their viewpoint,
subject to FCC rules and regulations and other applicable laws.
Neither the City, the Cable Companies, nor Media Center shall have
the authority to control the content of programming placed on the
public ~access channe!(s) so long as such programming is lawful.
Nothing in this Agreement shall be interpreted or construed to
prevent Media Center, the City, or a Cable Company from producing
or sponsoringprogramming, underwriting programming, or engaging
in activities designed to promote the Production of certain types
of. programming or use by targeted groups, consistent with
applicable laws and rules governing the use of PEG channels.
Media Center may promulgate and enforce policies and procedures
that arel.designed to promote the local use of the channel(s) and
make the .programming accessible to the viewing public, consistent ¯
with such appropriate time, manner, and place regulations that
provide f0r and promote~the use of PEG Facilities and Channels.
SECTION 4.1NDEMNITY; LIMITATION OF LIABILITY
4.1 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
autho[ities, or (b) oflibel, slander, invasions of privacy, or
infringement of common law or statutory copyright, which claim,
directly or indirectly, results from Media Center’s use, or Media
Center’s supervision of use byothers, of channels, funds,
equipment, facilities or staff granted under thisAgreement or any
franchise agreement. Media Center shall pay any costs or damages
finally awarded by a court of competent jurisdiction or agreed
upon in settlement. Media Center’s obligation under this Section
are contingent on Media Center receiving prompt notice of any
claim f<om the applicable Indemnified Party, sole contro! of the
defense and settl~aent 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
Media Center’s sole expense, from the Indemnified Parties.
4.2 IN NO E%~NT WILL EITHER BARTY BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT] EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES,
¯ INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING
TO THIS AGREMENT, EVEN IF THE PARTIES HAVE BEEN ADVISED OF ~THE
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POSSIBILITY OF SUCH DAMAGES. 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 LIABLITY FOR BODILY INJURY OR PROPERTY
DAMAGE.
SECTION 5. COPYRIGHTS
5.1 Before Media Center cablecasts video transmissions,
Media Cen{er shall require each person submitting, or responsible
for submitting, material for cablecasting (a "Producer") to agree,
,in writing, as follows:
(A) Each Producer shall obtain the rights to all
materials <hat are cablecast and all clearances from broadcast
stations,, networks, sponsors, music licensing organizations, and
without.limiting the foregoing, any and all other persons as may
be necessary to transmit the Producer’s program material over the
PEG access channels that are operated and managed by Media Center;
and
(B) Each Producer shall indemnify and hold harmless
Media Center and the City, and their officers, agents, employees
and volunteers from and against any and al! claims} demands, or
causes of action, including, without limita{ion, all liabilities,
losses and. damages, arising out of or resulting from the use or
cablecasting of the Producer’s materials over the PEG access
channel(s).
5.2 Media Center shall maintain for the term of the
applicable statute of limitations copies of all Producer
agreements required by Section 5.1 hereof, and shall make such
Producer agreements available for City inspection on reasonable
notice from the City.
5.S Media Center shall own the copyright of any
programs, which it may choose from time to time to produce.
~opyright of programming produced by the public shall be held by
such person(s) who produces said programming.
SECTION 6. DISTRIBUTION RIGHTS
6.1 Media Center 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 paragraph shal! not be
interpreted to restrict other distribution (beyond distribution on
channels authorized by this Agreement), so long as such other
distribution is consistent with any pertinent guidelines
established in the PEG access operating policies and procedures
and with applicable law.
SECTION 7.EQUIPMENT AND FACILITIES
7.1 Media Center 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 or the franchise agreements with the Cable
Companies.
7.2 Media Center shall own all equipment and facilities
acqufred by it and purchased with funds received pursuant to this
Agreement or the franchise agreements with the Cable Companies.
Upon the termination of this Agreement, any such equipment or
facilities purchased with funds received pursuant to the franchise
agreements with .the Cable Companies shall become the property of
the City.
7.3 Media Center shall, upon its dissolution and
subject to the approval of the City, transfer all Of its assets
consisting of City-funded or Cable Company-funded equipment and
facilities and the proceeds, if any, to the City, or at the City’s
option, to such entity or entities designated by the City to
manage access, provided that any such entity or entities shall at
the time of transfer 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 Interna!
Revenue Law).
SECTION 8.ADDITIONAL COMMITMENTS
8.1 For purposes of this Section 8, terms in initial
capita! letters and quotation marks shall have the meaning given
to them in the City/SVCC Agreement, and the definition of such
terms in the City!SVCC Agreement is incorporated herein by
reference.
8.2 Throughout the term of this Agreement and .in
consideration of the City’s agreement pursuant to Section 1o2 of
the City/SVCC Agreement to terminate the City/SVCC Agreement,
Media Cente£ shall, at a minimum and in additional to Media
Center’s other obligations hereunder, make the following
facilities available for, and devote the following resources to,
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the acquisition, maintenance and operation of PEG Facilities and
Channels for the benefit of the JPA Communities:
(A) Media Center shall maintain and, as necessary,
acquire and maintain the "Subleased Facilities", the "New
Subleased Facilities", the "Existing Equipment", and the "New
Equipment" These facilities and equipment shall, at a minimum,
meet the specifications set forth in Sections 2.4-2.9 and
Exhibits A and B of.the City/SVCCAgreement.
(B) Media Center shall, at a minimum, devote the
amount of any remaining "Current Funds" and "Contingent Funds" to
the acquisition, maintenance and operation of the PEG Facilities
and Channels.
SECTION 9.INSURANCE
9.1 Media Center shall obtain and maintain atits 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. The cost of insurance may be included in Media
Center’s annual budget.
(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 (I) bodily injury including death, $i,000,000 for each person,
each occurrence.and aggregate; (2) property damage, $i,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.
020702 sm 0072193
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(D) Cablecasters’ Errors and Omissions Insurance in an
amount not less than $I,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; copyright or trademark infrlngement; infliction of
emotional distress; invasion of privacy; plagiarism; and the
mlsuse of musical or literary materials.
(E) With the exception of workers’ compensarlon and
employer’s liability insurance, the City shall be named as an
additional insured on all aforementioned insurance coverage with
respect to 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 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 insurance and
shall not contribuze to it.
(F) Media Center shall file with the City proof of
insurance coverage as follows: (I) 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; (3) cablecasters’ error and
omission insurance within thirty (30) days of the commencement of
cablecasting of programming on the designated access channels.
SECTION i0.NONDISCRIMINATION
i0.i 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.
i0~2 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 Iio INDEPENDENT CONTRACTOR
ii.I It is understood and agreed that Media Center is
an independent contractor and that ~no relationship of principal
020702 srn 0072193
11
and agent or employer and employee exists between the City and
Media Center. If in the performance of this Agreement any third
persons are employed by Media Center, such persons shall be
entirely and exclusively under the control, direction and
supervision of 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 Media Center, and the City shall have no. right or authority
over such persons or terms of employment.
SECTION 12.ASSIGNMENT
12.1 Neither this Agreement, nor any interest herein,
nor control of Media Center shall be assigned, encumbered or
transferred by 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 13.ANNUAL REPORTS
13.1 Prior to April 30 of each fiscal year, Media
Center shall submit to the City an annual report for the
preceding fiscal year (January 1 - December 31), which shall
contain, at a minimum, the following information:
(A) Statistics on programming and services provided;
(B) Current and complete listing of Media Center’s
Board of Directors and officers; and
(C) Year-end financial statements, including a balance
sheet, sources and uses of funds statement and an income
statement, certified by an independent certified public
accountant.
//
//
SECTION 14.RECORDS
020702 sm 0072193
12
14.1 Media Center shall maintain all necessary books
and records, in accordance with generally accepted accounting
principles.
14.2 Upon receipt of a reasonable request of the City,
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 15.FONDINGAND OTHER RESOURCES
15.1 Subject to, and consisten.t with, the terms and
conditions of this Agreement, the City agrees to make the
following funds~ and other resources available to Media Center:
(A) The City agrees to permit Media Center to manage
that certain channel capacity that is dedicated for PEG access
use by the Cable Companies for PEG access programming purposes.
(B) In accordance with the Franchise Agreement, TCI
shall provide ongoing funding to the City, equivalent to $0.88
per residential subscriber per month, which the City will provide
to Media Center within forty-five (45) days after the City
receives such funds from TCI for so long as Media Center is
designated by the City as the Access Corporation.
15.2 The provisions of this Agreement, including this
Section 15, are subject to the fiscal provisions of the City
Charter and the City Code.
SECTION 16.ANNUAL PLAN AND BUDGET
16.1 On or before December 31 of each fiscal year in
which this Agreement is in effect, Media Center shall provide to
the City an annual plan and budget, outlining the activities and
programs that are planned for the following fiscal year with
funds and channel(s) received from the City. Such plan shall
contain:
(A) A statement of the anticipated number of hours of
¯ local original PEG access programming;
(B) A description of the training classes to be
offered and the frequency of those classes;
(C Other access activities planned by Media Center;
and
020702 sm 0072193
13
(D) A detailed operating and capital equipment and
facilities budget.
On or before January 31 of each fiscal year, the City
may comment upon Media Center’s annual plan and budget, and Media
Center shall take the City’s comments into account when °it
finalizes the annual plan and budget.
SECTION 17.RECEIPT /%lqD EXPENDITURE OF FUNDS
17.1 . Media Center shall spend funds received from the
City and the Cable companies solely for the purposes listed in its
annual ~plan and budget and in accordance with this Agreement.
Funds that are not expended in the year covered by the~annual plan
and budget may be carried over by Media Center :into succeeding
zears. Upon the expiration or termination of this Agreement, all
funds received from the City and the Cable Companies and not spent
by Media Center shall be returned to the City within thirty (30)
of the expiration date or termination date. Media Center shall
establish all reasonably .necessary fiscal control and accounting
procedures to assure the proper disbursement and accounting of
funds received from the City.
SECTION 18.DEFAULT; REMEDIES FOR DEFAULT
18.1 Media Center shall be in default~ of this Agreement
if _~±t fails to perform :any of its material obligations under this
Agreement. If Media Center. fails to cure a default within forty-
five (45) days, the City shall give written notice to 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.
18.2 Section 18.1 notwithstanding, Media Center shall be
in immediate default of this Agreement if any of its officers,
employees, or agents misappropriates public funds provided to
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.
18.3 Upon the termination of this Agreement, Media
Center shall immediately transfer to the City al! equipment, real
property, fixtures, contracts, leases, deposit accounts or other
assets received by or purchased by Media Center with funds
14
received pursuant to this Agreement or the franchise agreements
with the Cable Companies.
/!
SECTION 19.NOTICES
19.1 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.
3200 Park Boulevard
Palo Alto, CA 94306
19.2 Any party may change its address for notice by
written notice to the other party at any time.
SECTION 20.MISCELLANEOUS PROVISIONS
20.1 Time is of the essence in this Agreement in the
performance of all covenants, terms and conditions of this
Agreement.
20.2 Each party agrees to execute all documents and do
all things necessary and appropriate to carry out the provisions
of this Agreement.
20.3 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.
20.4 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.
20.5 Except to the extent that certain terms and
specifications of the City/SVCC Agreement are incorporated by
15
reference in Section 8 hereof, the City/SVCC Agreement is hereby
terminated.
//
//
//
IN WITNESS ~’~EREOF, the parties by their duly appointed
representatives have executed this Agreement as of the date
written above.
ATTEST :CITY OF PALO ALTO
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
Assistant City Manager
Director of Administrative
Risk Manager
Mayor
M!DPENINSULA COMMUNITY MEDIA
CENTER, INC.
Name:
Taxpayer Identification No.
7 7- o o ff5 o
(Compliance with C:orp. Code § 313 is
required if the entity on whose
behalf this contract is signed is a
corporation. In the alternative, a
certified corporate resolution
attesting to the signatory authority
of the individuals signing in their
16
respective
acceptable.)
capacities
On ~Q~ ~ , 2002, before me, ~0~-\,} .i ~.\.~_~. , a
Notary Public ~ in and for siid County and S~ate, " personally
appeared _5~[1~ ~. ~L~~ ,. personally known to me
or proved to me on the~ basis of satisfactory evidence to be the
person(J) whose name(M) ~/are subscribed to the within instrument
a~d acknowledged to me that ~/sh~e/they executed ~the same in
~/heritheir authorized capacity(ice), and that by ~i~/her/their
signature({) on the instrument the person(~), . or the entity upon
behalf of which the person(~) acted, executed the .instrument.
WITNESS my hand and.official seal~
Sig~)X~ure of Notary ~ublic
18
CERTIFICATE OF ACKNOWLZD~2
(Civil Code ~ 1189)
STATE OF ~~~_)
On ~_~ ~ , 2002, before me, Q~’~Q~,I ~ ~OT~ , a
Notary Public tz~ and for said County and SJate, personally
appeared ~\\\I \~ ~-~.~. , personally ~mown to me
or proved to me oh the basis of satisfactory evidence to be the
person(M) whose name(g) G/are subscribed to the within instrument
and acg~owledged ~to me that he/~they executed the same in
his/~their authorized capacity(i~s), and that by his/~their
slgnature(~) on the instrument the person(~), or the entity upon
behalf of which the person(M) acted, executed the instrument.
WITNESS my hand and official seal.
Sig~ure~of Notary P~lic
19
ATTACHMENT B
CONTRACT NO.
BETWEEN THE CITY OF PALO ALTO, CALIFORNIA,
MIDPENI~SULA CC~4MUNITY MEDIA CENTER, INC.
This AGREEMENT, .dated ,~ 2002, is
entered into by and between the CITY OF PALO ALTO, a California
municipal corporation ("City"), and the MIDPENINSULA COMMUNITY
9~DIA CENTER, INC., a .California nonprofit corporation ("Media
Center"), in reference to the following facts and circumstances:
RECITALS :
I. The City is a party to the Joint Exercise of Powers
Agreement, dated July 26, 1983 ("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, as may
be amended ("Joint Powers" or "JPA"), and is authorized to act on
behalf of the JPA members.
2. The Citydesires to provide support for the use of
cable television public, educational, and government ("PEG")
access channels provided pursuant to federa! ~nd City law.
3. The City has granted a franchise to TCI CABLEVISION
OF CALIFORNIA, INC., locally known as AT&T Broadband ("TCI"); TCI
and any other entity granted a cable television franchise by the
City to operate a cable television system in the City is
hereinafter referred to individually as "Cable Company" and
collectively as "CableCompanies".
4.’ The City’s Cable Television Ordinance No. 4636,
adopted May 8, 2000, and the Cable Television Franchise Agreement
by and between the City, on behalf of the JPA, and TCI, dated July
24, 2000 ("Franchise Agreement"), provide 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 TCI for PEG access, (C) certain ongoing payments shall
be made by TCI for PEG Facilities, and (D) certain se~ices shall
be provided by TCI to support the operations of the PEG Facilities
and Channels.
5. By an Agreement between the City and MidiPeninsula
Access Corporation ("MPAC"), dated June 25, 2001, MPAC agreed to
1
provide certain services to the City relating to support of City’
governmental access programming.
6. By an Agreement of Merger, dated as of August 20,
2001 ("Merger Agreement"), by and between Silicon Valley Community
Con~unications, Inc. ("SVCC"), and MPAC, SVCC was merged into
MPAC, with MPAC being the surviving corporation, and MPAC was
subsequently renamed Media Center.
7. The City, by City Council resolution of October ~22,
2001, has designated 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 December, 2001, and expiring on June 30, 2002, Media
Center agreed to provide certain services to the City and the JPA
relating to support of PEG and City governmental access
programming.,
9.Media Center has agreed to.continue to serve as the
Access Corporation designated by the City and to serve the JPA
con~auni-ty by .providing PEG access facilities, programming and
services.
i0. The City .wishes Media Center to continue to.
provide, and 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 therecitals and the
following mutual covenants, terms and conditions,the parties
agree:
SECTION 1. TERM OF AGREEMENT; TEBMI’NATION
i.i The term of this Agreement is one (I) year,
oma~encing on July i, 2002, unless it is terminated earlier, as
provided in this Agreement.
1.2 This Agreement may be extended, by mutual agreement
of the City and Media Center, in writing, for up to two (2)
additional one-year periods.
1.3 On or before January 1~, 2003, Media Center shall
give the City written notice of its intention to seek an
2
extension. If the Agreement is extended, on or before January i,
2004, Media Center shall give written notice of its intention to
seek an additional extension.
1.4 On or before March 31, 2003 (and March 31, 2004, if
the Agreement is extended in 2003), the City shall respond to
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 Media
Center’s request.
1.5 Either party may terminate this Agreement for
convenience, provided that party serves the other party with not
less thanone hundred eighty (180) days’ prior w~itten notice.
SECTION 2. SCOPE OF SERVICES AND CO~PENSATION
2.1 ~ General. -Media Center’s work for the City shall be
scheduled at the Cityfs convenience based on the deadlines
mutually agreed to betweenthe Media Center and the City. Absence
of Media Center’ staff will not justify failure to comply with
deadlines. Media Center will provide technical expertise and
trained staff for ~City projects. Media Center will operate and
maintain equipment for City projects.
2.2 Administration. Media Center shall maintain a tape
management system to provide for the safe and efficient storage
and retrieval of City tapes. Media Center shall store City
equipment and film. Media Center shal! maintain video logs of
City field and studio shoots~
2.3 Marketing and Publicity. Media Center will provide
marketing, and publicity of City programs, including but not
limited to, newspaper ads and television announcements.The City
wil! augment this publicity as needed.
2.4 Services and Compensation.
2.4.1 Cablecasting services: . During fiscal year
2002-03 (July i, 2002 - June 30, 2003), Media Center shall
cablecast all City Co~%cil 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. 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. The total amount of Media ~enter’s
billings shall not exceed Sixty Thousand Dollars ($60,000) per
year.
2.4.2 other production services: Media.Center shal!
produce a monthly magazine show, several town hall meetings., town
hall meeting summary videos, TV slide shows, and cal!-in shows for
the City. Other production needs may be identified during the
year~ Media Center shall bill the City on a monthly basis for
produttion hours associated with each project, in accordance with
the hourly rates set forth in Exhibit B. The total amount of Media
Center’s billings ~shall not exceed One Hundred Thousand Dollars
($i00,000) per year~ Each show wil! produced according to the
following process:
2.4.2.1 Monthly magazine show.
(A)City will tape two-to-four days per month (between
from th~ ISt-21st of the month), with a combination
of 25% studio taping and 75% in-the-field taping.
(B)City will provide Media Center with list of taping
locations one week prior to filming.
(C)Media Center will provide a "window dub" to the
City that includes all the ~ootage with a counter
on the screen showing the timel The City will
choose shots and create an edit list for Media
Center during the third week of the month (on or
about the 22~d-27~ of the month).
(D)Media Center will do a final edit based on the
City edit list and provide the City with a final
version to review before the first of the month and
before the Show airs.
(E)The magazine show will air the first week of the
following month and be repeated on a regular,
announced basis.
(F)Media Center will develop opening and closing
graphics, plus other necessary transitions, for
review by the City.
Media Center will suggest appropriate music as
needed°
2.4.2.2 Town Hall Meetings and Summary Videos.
(A)The City will meet with Media Center staff to plan
the taping and preparation of each town hall
meeting suma~ary video a minimum of three (3) weeks
prior to each town hall "meeting.
(B)Media Center will provide two cameras, other
equipment and necessary staff to tape the meetings.
(C)The City will log the town hall meeting tapes and
provide Media Center with an outline of content for
the summary video within five (5) business days of
the summary video planning meeting.
(D)The sun~nary videos will be five to ten (5-10)
minutes in length.
(E)Media Center will provide a first .draft and then,
working with the City staff, provide a final
version of the sua~ary video within ten (i0)
business days of the planning meeting.
2.4.2.3 TV Slide Show.
(A)On the last working day of the month, the City
shall deliver to the Media Center a Power Point
slide show to be aired the following month, at
regularly scheduled times.
(B)The Media Center shall develop any necessary
introductory or concluding graphics.
2.4.2.4 TV Call-in Show.
(A)The City shal! reserve the studio, staff and
equipment, if available, at least three (3) weeks
in advance of a call-in show.
(B)Media Center will provide necessary staff and
equipment for the show.
(C)Media Center will provide its standard publicity,
for the call-in show.
(D)The City will augment that publicity as needed.
(E)Media Center will provide videotape of the call-in
show to the City.
(F)Media Center will replay the call-in show with
appropriate disclaimers that this is a re-
broadcast.
2.4.2.5. Other productions and special events.
(A)The City will provide a minimum of three (3) weeks
notice Of its desire to have other productions and
special events videotaped for later use. Subject
to any pre-existing contractual obligations and
equipment availability, Media Center shall provide
the services requested by the City.
2.4.3. Prompt Pa_vment. The City will pay the Media
Center within thirty (30) days of receipt of a proper invoice from
the Media Center.
SECTION 3. INDEM~TY; LIMITATION OF LIABILITY
3.1 Media Center shall indemnify and defend the City,
and its elected and appointed officers and employees (an
"Indel~mified Party" or collectively "Indemnified Parties"),
aga±nst any third-party claim (a) arising or resulting from or out
of the failure to ~comp!y 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 Media Center’s use, or Media
Center’s supervision of use by others, of channels, funds,
equipment, facilities or staff granted under this Agreement or any
franchise agreement. Media center shall pay any costs or damages
finally awarded by a court of competent jurisdiction or agreed
~Don in settlement. Media Center’s obligatign under this Section
are contingent on 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
Inden~ified Party may participate in Such defense with counsel of
its own choice at its own cost), and reasonable cooperation, at
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. ~DIA 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 PD~TY’S LIABILITY FOR BODILY INJURY OR PROPERTY
DAMRGE.
SECTION 4.COPYRIGBTS
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, Media Center
shall ensure that all programs~produced under this Agreement shall.
be ~d/stributed 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 PEGaccess
operating policies and procedures, and applicable law.
SECTION 6. INSURANCE
: 6.1 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 persona! injury coverage, and
comprehensive automobile liability including owned, hired, and
non-owned automobile, coverage. The limits of such coverage Shall
be: (I) bodily injury including death, $i,000,000 for each person,
each occurrence and aggregate; (2) property damage, $I,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 natura!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 lin~ts 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 $I,000,000, each occurrence and aggregate
covering the content of productions which are cablecast on the
access channel(s) in, at a mininlum, the following areas: libel and
slander; copyright or trademark infringement; infliction of
emotional distress; invasion of privacy; plagiarism; an~ 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
additiona! insured on all. aforementioned insurance coverage with
respect to Media Center’s performance under this Agreement. The
policies shall provide that no cancellation, major change in
coverage or expiration may.be afficted by the insurance company or
Media Center without first giving the City thirty (30) days
written noticeprior 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 insurance and shall not contribute
to it.
(E) Media Center shall file with the City proof of
insurance coverage as follows: (I) 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; (3) cablecasters’ error and omission
insurance~ within thirty (30) days of the commencementof
cablecas~ing of programming on the designated access channels.
SECTION 7. NONDISCRIMINATION
7.1 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.~ Media Center shall not discriminate in the delivery
of services on the basis on race, color, creed, religion, sex,
~exual preference, marital status, ancestry, national origin or
physica! or mental handicap.
sEcTIoN 8.3~DEPENDE~T CONTRACTOR
8
8.1 It is understood and agreed that Media’ Center is an
independent contractor and that no relationship of principal and
agent or employer and ealployee exists between the City and Media
Center. If in the performance of this Agreement any third persons
are employed by Media Center, such persons shall be entirely and
exclusively under the control, direction and supervision of Media
Center. All terms of employment, including hours, wages, working
conditions, discipline, hiring and discharging or any other term
of.employment shal! be determined by Media Center, and the City
shall have no right or authority over such persons or terms of
employment.
SECTION 9.ASSIGNMENT
9.1 Neither this Agreement, nor any interest herein,
nor control of Media Center shall be assigned, encumbered or
transferred by 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 I0.RECORDS
i0.I 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,
Media Center shall, at any time during its normal business hours,
make available to the City or its agents or representatives al! of
its records with respect to all matters covered by this Agreement.
SECTION II.CONDITION ON CITY PAYMENT
ii.i The provisions of this Agreement are subject to the
fisca! provisions of the City Charter and the City 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
!onger available.
SECTION 12.DEFAULT; REMEDIES FOR DEFAULT
9
12.1 Media Center shall be in default of this Agreement
if it fails to perform any of its material obligations under this
Agreement. If Media Center fails to cure a default within fortyi
five (4S) days, the City shall give written notice to 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, Media Center shall be
in inunediate default of this Agreement if any of its officers,
employees, or agents ~misappropriates public funds provided to
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
13~i 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.
3200 Park Boulevard
Palo Alto, CA 94306
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 lawsL 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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II
ll
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1/
fl
II
II
!I
/1
representatives
written above.
IN-WITNESS WHEREOF, the parties by their duly appointed
have executed this Agreement as of the date
ATTEST:CITY OF PALO ALTO
ii
City Clerk Mayor
APPROVED AS TO FORM:
Senior ~st. City Attorney
APPROVED:
Assistant City Manager
Director of Administrative
Risk Manager
MIDPENINSULA COMMUNITY MEDIA
CENTER, INC.
’ (.~/
Name:
Title:
Taxpayer Identification No.
77- OO
(C~’ompliance with Corp. Code ~ 313 is
required if the entity on whose
behalf this contract is .~igned is a
corporation. In the alternative, a
{sertified corporate resolution
attesting no the signatory authority
of the individuals signing in their
respective capaci ties is
a£:cept able. )
12
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code ~ 1189)
COUNTY OF ~p~_ )
Notary Bublic-I in and for said County and ~tate, personally
appeared ~.~_ ~. ~0~#-\I ,. personally ~mown to me
or proved to me on the basis of satisfactory evidence to be the
person(~) whose name(~) ~!are subscribed to the within instrument
and acknowledged to me that ~/she/they executed the same in
~/her/thelr authorized capacity(i~s), and that by ~/her/their
signature(~) on the instrument the person(~), or the entity upon
behalf of which the person(~ acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
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CERTIFICATE OF ACKNOWLEDSMENT
(Civil Code § 1189)
STATE OF z ~. ~.~)
On ~t~9_~ ~ , 2002, before me, ~~\i.~\\\ov~ , a
Notary PGblic ~ i-n and for said County ~nd S~ate, -personally
appeared ~\\~ \~\~_m~4_~ , personally ~nnown to me
or PrOved to me ~n the basis of satisfactory evidence to be the
person(~) whose name(~) ~are subscribed to the within instru~lent
and acFmowledged to me that he/~/they executed the same in
his/G!their authorized capacity(i~), and that by his/~/their
signature(~) .on the instrument the person(~)~ or the entity upon
behalf of which the person(~) acted, executed the instrument.
WITNESS my hand and official seal.
SignOre o Notary Public
14
EXHIBIT A
Council and Council Committee Meetings to ~e
Cablecast by the Media Center
Media Center shall cablecast the following meetings:
All Palo Alto City Council meetings held in the City Council
Chambers or Council Conference Room
All PaloAlto Planning and Transportation Commission meetings
held in the City Council Chambers or Council Conference Room
All PaloAlto Utility 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 Policy andServices Committee meetings held in. the
City Council Chambers or Council Conference Room
All PaloAlto Architectural Review Board meetings held in the
City Council Chan~ers 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 ConferenceRoom
All Library AdVisoryCommission 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
15
Any special meetings as requested by the Palo Alto Uity Council
or Palo Alto City Manager or his designee, that are held in the
City Council Chan~ers or Conference Room, provided five working
days notice is given.
16
EXHIBIT
~ctia Center Rate Schedule
Media Center shall charge the City according to the
following schedule of rates for performing the following services
related to governmental access programming:
City Hall Video Coverage:
Single Camera Coverage with City
equipment at location:
Single Camera Coverage with Media
Center equipment:
$ 75 per hour
$ 75 per hour
$i00 per hour
Cancellation fee (for City’s
cancellation of scheduled Media Center
coverage without 24 hours’ prior notice
to Media center):$225 flat fee
Program Production:
Program Development
Videography
Editing
Hosting and preparation
$i00 per hour
$i00 per hour
$i00 per hour
$i00 per hour
Studio Crew per person $i00 per hour
Remote video coverage with the studio $225 per hour
in a box. Crew of S requires 4q0 hrs!set
up, plus breakdown and transportation
time (minimum of 2 hrs of meeting coverage)
Dubbing of videotapes:
1-3 copies
4 + copies
$20 per hour + $5 per tape
$30 per hour + $5 per tape
The foregoing rates shall remain unchanged though ~ecember 31;
2002. Thereafter, the Media Center may increase these rates, no
more often than once per calendar year, provided that, absent the
prior consent of the City, any such increase in rates shal! not
exceed the amount of the increase in the Bay Area Consumer Price
Index during the preceding year.
17