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HomeMy WebLinkAbout08993ORDINANCE NO. 8993 AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND PUEBLO SCHOOL DISTRICT NO. 60, A PUBLIC SCHOOL DISTRICT, RELATING TO THE MANAGEMENT OF AN EDUCATION ON THE COMCAST CABLE SYSTEM IN THE CITY OF PUEBLO AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAID AGREEMENT WHEREAS, the City of Pueblo wishes to select Pueblo School District No. 60 as a “designated access provider” to manage one of the three public, education and government (“PEG”) channels on the Comcast Cable Television System within the City of Pueblo; and WHEREAS, Pueblo School District No. 60 has requested to be a “designated access provider” and is willing to manage one of the three PEG channels on the local Comcast system; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Intergovernmental Agreement between the City of Pueblo and Pueblo School District No. 60, a true copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved by Council. The President of City Council is hereby authorized and directed to execute the Intergovernmental Agreement by and on behalf of the City of Pueblo, and the City Clerk is directed to affix the seal of the City thereto and to attest same. SECTION 2. The officers and staff of the City are directed and authorized to perform any and all acts consistent with the intent of this Ordinance and the attached Intergovernmental Agreement which are necessary or appropriate to effectuate transactions described therein. SECTION 3. This Ordinance shall become effective immediately upon final passage. INTRODUCED: May 23, 2016 BY: Ed Brown PASSED AND APPROVED: June 13, 2016 City Clerk’s Office Item # R-2 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: May 23, 2016 TO: President Stephen G. Nawrocki and Members of City Council CC: Sam Azad, City Manager VIA: Gina Dutcher, City Clerk FROM: Daniel C. Kogovsek, City Attorney SUBJECT: AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND PUEBLO SCHOOL DISTRICT NO. 60, A PUBLIC SCHOOL DISTRICT, RELATING TO THE MANAGEMENT OF AN EDUCATION CHANNEL ON THE COMCAST CABLE SYSTEM IN THE CITY OF PUEBLO AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAID AGREEMENT SUMMARY: Attached is an Ordinance which approves and authorizes the President of City Council to execute an intergovernmental agreement (“IGA”) with Pueblo School District No. 60. The IGA names the school district as a “designated access provider” to manage one of the City’s public, education and government (“PEG”) channels on the Comcast Cable System in the City. PREVIOUS COUNCIL ACTION: None. This Ordinance designates Pueblo School District No. 60 as a “designated access provider” for the first time. BACKGROUND: By separate Ordinance, the City is granting to Comcast a five-year non-exclusive franchise to operate its cable system within the City. Under the Franchise Agreement, Comcast is required to provide three (3) PEG channels on its City cable system. Pursuant to Section 9.1 of the Franchise Agreement, the City may choose one or more entities to manage a PEG channel. Pueblo School District No. 60 has requested that it be named as a “designated access provider” in order to provide television programming for the benefit of its students. Pursuant to the Franchise Agreement, Comcast is required to collect and pay to the City a fifty cent per month per subscriber PEG access support fee for capital improvements for the PEG channels. In the attached IGA, the City has agreed to pay the school district one third of the PEG capital funds received from Comcast. Of the remaining PEG fees, one third will be retained by the City and one third paid to Pueblo Community College. FINANCIAL IMPLICATIONS: The City anticipates receiving approximately $120,000 in PEG fees annually. Of that amount, one third (approximately $40,000) will be paid to the school district; one third (approximately $40,000) will be paid to Pueblo Community College; and one third (approximately $40,000) will be retained by the City. BOARD/COMMISSION RECOMMENDATION: Not applicable. STAKEHOLDER PROCESS: Not applicable. ALTERNATIVES: Failure to approve this Ordinance would require the City to find another “designated access provider” for one of Comcast’s PEG channels. RECOMMENDATION: Approval of the Ordinance. Attachments: Proposed Ordinance and Proposed Intergovernmental Agreement INTERGOVERNMENTAL AGREEMENT THIS AGREEMENT("Agreement") is made and entered into this 13th day of June, 2016, by and between the Pueblo School District No. 60,a public school district and political subdivision of the State of Colorado, 315 West 11th Street. Pueblo, Colorado 81003 (hereinafter referred to as "District 60"), and the City of Pueblo, a Municipal Corporation, 1 City Hall Place, Pueblo, Colorado (hereinafter referred to as "City"). City and District 60 may each be referred to herein as a"Party" or collectively as the "Parties." WHEREAS, District 60 provides a pre-kindergarten through 12th grade public education program, including career and technical education, and desires to provide education in the field of television production, videography and broadcasting for its students; produce and/or broadcast educational or instructional content; broadcasting meetings of District 60's Board of Education; and provide public announcements and other matters of interest or importance to the District 60 educational community (all of which functions are hereinafter collectively referred to as "Television Programming"); and WHEREAS, District 60 and City desire to cooperate in District 60's efforts to provide meaningful Television Programming; and WHEREAS, under that certain Franchise Agreement between the City of Pueblo and Comcast of Colorado IV,LLC("Comcast")approved by Ordinance No�h33 of the City of Pueblo ("Franchise"), Comcast has been granted a cable television franchise under which it (a) must activate and make available public, educational and government ("PEG") channels to its subscribers, and (b) must collect and remit PEG access support fees to be used by City solely for PEG capital facilities and equipment ("PEG Capital Funds"); and WHEREAS, pursuant to Section 9.1 of the Franchise Agreement, City may designate an entity or entities to manage all or part of the PEG channels ("designated access providers"); and WHEREAS, District 60 represents that it is willing and able to act as a designated access provider for a PEG channel provided under the Franchise, and City is willing to select District 60 as a designated access provider subject to compliance with the terms of this Agreement; and WHEREAS, City is willing to provide PEG Capital Funds to District 60 for acquisition of capital equipment and facilities to be used in connection with Television Programming for cablecasting on its designated PEG channel; and WHEREAS, the District 60 Superintendent or her designee has been delegated the authority to approve training agreements, to receive services, to use property, and to enter into other agreements so long as they involve less than $50,000.00; and WHEREAS, the Board of Education of District 60 has designated the Superintendent to enter into such training and other agreements for District 60; NOW, THEREFORE, in consideration of the foregoing recitals and the terms and conditions set forth herein, the parties agree as follows: 1. GENERAL AND SCOPE OF SERVICES. (a) District 60 agrees to perform,using its own employees and enrolled District 60 students, volunteers, and any consultants or contractors hired by District 60, the planning, implementation, professional services necessary to provide Television Programming, and to furnish all labor, equipment and materials encompassed within or reasonably necessary to accomplish the tasks and functions described in the Scope of Services attached hereto as Exhibit "A" and incorporated herein by reference, in full compliance with all the provisions of this Agreement. (b) District 60 represents that it has the requisite authority and the necessary capacity to perform the services and Television Programming contemplated in Exhibit "A." To the extent any services or Television Programming are provided by consultants or contractors to District 60,District 60 shall bind same to the terms of this Agreement,and shall be responsible for their work and services. (c) District 60 agrees that all Television Programming and related services performed under this Agreement by students enrolled at District 60 shall be supervised by District 60 instructors, and District 60 instructors shall supervise students when programming is released to the Comcast headend. 2. CITY RESPONSIBILITIES. City shall designate in writing a representative of City who will be authorized to make all necessary decisions on behalf of City in connection with the performance of this Agreement and the disbursement of funds hereunder. In the absence of such a designation, the City Manager shall be deemed the City's designated representative. 3. PEG CAPITAL GRANT. (a) Subject to receipt of PEG Capital Funds from Comcast and appropriation thereof by City Council, City will make a grant to District 60 in the amount of one-third (1/3) of the PEG capital funds received from Comcast for acquisition by District 60 of capital equipment and fixtures dedicated to Television Programming and support ("PEG Capital Grant"). All such equipment and fixtures shall have a useful life of not less than 5 years. City will disburse the PEG Capital Grant to District 60 in the following manner: (i) District 60 shall obtain pre-approval by City of the specific capital equipment and fixtures to be procured within PEG Capital Grant funds, and (ii) upon acquisition of the equipment and fixtures, District 60 shall submit periodic reimbursement requests to City detailing the eligible payment and reimbursement items. Upon verification by City that the expenditure has been authorized, City will disburse payment of PEG Capital Funds to District 60, aggregating up to but not exceeding the maximum amount specified in this Section. 2 (b) Subject to receipt of PEG Capital Funds from Comcast (provided by the $0.50 per month per subscriber PEG access support fee for capital improvements), and appropriation thereof by City Council to District 60, City commits to making PEG Capital Grants to District 60 during the term of this Agreement, in the approximate amount of$40,000.00 per year. 4. TERM OF AGREEMENT. The term of this Agreement shall be from July 1, 2016 to June 30, 2021, unless sooner terminated as herein provided. District 60 shall begin Television Programming by no later than October 1, 2016, subject to obtaining any necessary City approvals for permits and adequate time for construction thereafter. In the event approvals are delayed at no fault of District 60, the City agrees to grant an extension of time as may be reasonably necessary for District 60 to complete the work and begin Television Programming. 5. TERMINATION FOR CAUSE. This Agreement may be terminated by City for cause, including any material nonperformance by District 60, upon ten (10) days' prior written notice to District 60 including a statement of the reasons therefor. During said ten (10) day period, District 60 shall either correct the nonperformance or request a hearing before the City Council to determine whether District 60 has failed to perform and whether, in the determination of Council, the Agreement should be terminated. If a hearing is requested, it shall be scheduled at a regular or special meeting of the City Council, and the decision of the City Council after hearing shall be deemed final and conclusive. 6. ASSIGNABILITY. This Agreement shall not be assigned or transferred by either Party without the prior written consent of the other Party. Any assignment or attempted assignment made in violation of this provision shall, at the non-assigning Party's election, be deemed void and of no effect whatsoever. 7. INDEPENDENT CONTRACTOR. District 60 is performing services under this Agreement as an independent contractor, and nothing hereby shall be construed to make District 60 or any of its agents, employees or students the agents or employees of City. No student, teacher, District 60 employee, parent, personal representative or other person, firm or entity shall be granted or have any private right of action, claim or civil liability remedy against the City or District 60,or their respective officers,employees or agents, by virtue of this Agreement. Nothing in this Agreement shall be construed to create any liability, or to waive any of the immunities, limitations on liability or other provisions of the Colorado Governmental Immunity Act, C.R.S. §§24-10-101 et seq., or to waive any immunities or limitations on liability otherwise available to the City, District 60, or their officers, employees or agents. 3 8. LIABILITY. As to the City, District 60 agrees to assume the risk of all personal injury, including death and bodily injury, and damage to and destruction of property, including loss of use therefrom, caused by or sustained, in whole or in part, in conjunction with or arising out of the performance or nonperformance of this Agreement by District 60 or by the conditions created thereby;provided, however,that nothing in this paragraph is intended, nor should it be construed,to create or extend any rights,claims or benefits or assume any liability for or on behalf of any third party,or to waive any immunities or limitations otherwise conferred under or by virtue of federal or state law, including but not limited to the Colorado Governmental Immunity Act, C.R.S. §§24-10-101 et seq. District 60 shall provide and maintain Workers' Compensation insurance coverage for self insurance on its employees complying with the requirements of State law. 9. NO CREATION OF DEBT BY CITY. This Agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor be deemed to constitute, the creation of a debt or multi-year fiscal obligation or an obligation of future appropriations by the City Council of Pueblo, contrary to Article X, §20 of the Colorado Constitution or any other constitutional, statutory or charter debt limitation. Notwithstanding any other provision of this Agreement, with respect to any financial obligation of City which may arise under this Agreement in any fiscal year after 2016, in the event the budget or other means of appropriations for any such year fails to provide funds in sufficient amounts to discharge such obligation, such failure shall not constitute a default by or breach of this Agreement, including any attachment or exhibit thereto, by the City. 10. MISCELLANEOUS. (a) Notices. Any and all notices or other communications required or permitted by this Agreement or by law to be served on or given to either Party by the other Party shall be in writing and shall be deemed duly served and given when personally delivered to the party to whom it is directed, or in lieu of such personal service, when deposited in the United States mail, first-class postage prepaid, addressed to the City,Attention: City Manager, 1 City Hall Place,Pueblo,Colorado, or to District 60,Attention: Superintendent,315 West 11th Street,Pueblo, Colorado 81003. Either Party may change its address for the purpose of this paragraph by giving written notice of such change to the other Party in the manner provided in this paragraph. (b) Entire Agreement. This instrument contains the entire agreement between the Parties concerning the subject matter hereof, and any other written or oral agreement or representation respecting the subject matters hereof or the duties of either Party in relating thereto not expressly set forth in this instrument and its attachments is null and void. (c) Amendments. No amendments to this Agreement shall be made nor be enforceable unless made by written amendment signed by an authorized representative of each Party. (d) Equal Employment Opportunity. In connection with the performance of this Agreement, District 60 shall not discriminate against any employee or student or applicant for 4 employment because of race, color,religion, sex,marital status, sexual preference,national origin, disability or age. District 60 shall endeavor to insure that applicants are employed and that employees are treated during employment without regard to their race, color,religion, sex, marital status, sexual preference, national origin, disability or age. 11. SIGNATURES. The persons signing this Agreement on behalf of each party represent and warrant that such persons and their respective party have the requisite power and authority to enter into, execute and deliver this Agreement and that this Agreement is a valid and legally binding obligation of such party enforceable against it in accordance with its terms. IN WITNESS WHEREOF,the parties have entered into this Agreement the day and year first written above. PUEBLO SCHOOL DISTRICT NO. 60 CITY OF PUEBLO, A MUNICIPAL a " O : e By. Ott .SM,keicac.6/ B President, Board of Education res': EXHIBIT "A" SCOPE OF SERVICES Generally, District 60 shall provide the following functions: (1) Serving as the designated access provider for its designated PEG channel under the Comcast Franchise, and (2) Providing Television Programming, as that term is defined in the Agreement. I. Designated Access Provider District 60 shall serve as one of the City's designated access providers under the Comcast Franchise. In connection therewith District 60 shall: 1. Schedule and transmit all content to the headend of Comcast for airing on its designated PEG channel. 2. Manage the designated PEG channel on behalf of City,subject to general discretion from City. In general, the education channel ("E") shall be used for educational or instructional content; the broadcasting of meetings of District 60's Board of Education; and other material and announcements of interest or importance to the District 60 educational community. 3. (District 60 to explain other functions, if any) 4. (District 60 to explain other functions, if any) 5. In managing the designated PEG channel, District 60 shall make reasonable efforts to not permit commercial programming or advertising; provided that brief recognition of programming sponsors may be made. District 60 shall also make all reasonable effort to avoid transmission of libelous,obscene or otherwise unprotected speech or material prohibited by federal law. 6. Develop rules and regulations for use and management of the designated PEG channel and submit same to the City Manager for approval. In the event the City Manager requests any changes therein, District 60 shall make such changes and resubmit the rules and regulations for approval. 7. Operate and maintain all equipment necessary to support District 60's functions as a designated access provider. 8. District 60 is encouraged to provide channel information to Comcast and Comcast's menu programmer in a timely manner in order to enable the program information to appear in the menu. District 60 should obtain the menu provider information directly from Comcast. 9. Make reasonable efforts to provide around-the-clock programming on its designated PEG channel. Inadequate scheduled programming and excessive service outages during scheduled programming shall be grounds for termination of this Agreement for cause. 10. Notify the City Manager if it determines that activation of an additional PEG channel is needed. 11. Promote the use of its PEG channel to content providers and the public. II. PEG Origination Services District 60 shall establish and equip a television production facility, including all necessary equipment and personnel, in order to record, produce and transmit original programming or other authorized content for its designated PEG channel. 4834-2241-4129,v. 2 7