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HomeMy WebLinkAbout09003ORDINANCE NO. 9003 AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND PUEBLO COMMUNITY COLLEGE RELATING TO THE MANAGEMENT OF TWO PUBLIC, EDUCATION AND GOVERNMENT CHANNELS 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 Community College as a “designated access provider” to manage two of the three public, education and government (“PEG”) channels on the Comcast Cable Television System within the City of Pueblo; and WHEREAS, Pueblo Community College has requested to be a “designated access provider” and is willing to manage two of the three PEG channels on the local Comcast system; and WHEREAS, Pueblo Community College has agreed to continue to cablecast the meetings and work sessions of the Pueblo City Council on the second and fourth Mondays of each month; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Intergovernmental Agreement between the City of Pueblo and Pueblo Community College, with an effective date of July 1, 2016, 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: June 27, 2016 BY: Ed Brown PASSED AND APPROVED: July 11, 2016 City Clerk’s Office Item # R-3 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: June 27, 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 COMMUNITY COLLEGE RELATING TO THE MANAGEMENT OF TWO PUBLIC, EDUCATION AND GOVERNMENT CHANNELS 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 with Pueblo Community College. The IGA names the community college as a “designated access provider” to manage two of the City’s public, education and government (“PEG”) channels on the Comcast Cable System in the City. PREVIOUS COUNCIL ACTION: City Council has previously designated Pueblo Community College (“PCC”) as its sole “designated access provider.” BACKGROUND: By Ordinance No. 8992, dated June 13, 2016, the City is granted 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 Community College 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 to PCC 54.2% of the PEG capital funds received from Comcast. Of the remaining PEG fees, 12.5% will be retained by the City and 33.3% will be paid to Pueblo School District No. 60. In addition, PCC has agreed to continue cablecasting City Council meetings and work sessions on the second and fourth Mondays of each month. FINANCIAL IMPLICATIONS: The City anticipates receiving approximately $120,000 in PEG fees annually. Of that amount, 54.2% (approximately $65,000) will be paid to Pueblo Community College; 33.3% (approximately $40,000) will be paid to Pueblo School District No. 60; and 12.5% (approximately $15,000) will be retained by the City. The City will continue to pay PCC $2,500 per month for cablecasting services. 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 two of Comcast’s PEG channels. RECOMMENDATION: Approve the Ordinance. Attachments: Proposed Intergovernmental Agreement , INTERGOVERNMENTAL AGREEMENT THIS AGREEMENT("Agreement") is made and entered into with an effective date of July 1, 2016, by and between the State of Colorado, Department of Higher Education, State Board for Community Colleges and Occupational Education, for the use and benefit of Pueblo Community College,located at 900 W. Orman Avenue,Pueblo,Colorado(hereinafter referred to as"PCC"),and the City of Pueblo, a Municipal Corporation, 1 City Hall Place, Pueblo, Colorado (hereinafter referred to as"City"). City and PCC may each be referred to herein as a"Party"or collectively as the "Parties." WHEREAS, PCC operates an educational facility and desires to provide occupational education in the field of television production, videography and broadcasting ("Television Instruction"); and WHEREAS, PCC and City desire to cooperate in PCC's efforts to provide meaningful Television Instruction to PCC students; and WHEREAS, under that certain Franchise Agreement between the City of Pueblo and Comcast of Colorado IV,LLC ("Comcast")approved by Ordinance No. 8992 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,City may designate an entity or entities to manage all or part of the PEG channels ("designated access providers"); and WHEREAS, PCC has, under purchase orders from City for several years, provided equipment and students enrolled in Television Instruction to provide videography, production and cablecasting of such City Council meetings over Comcast cable channel 17,and the Parties desire to continue to have PCC provide such equipment and services; and WHEREAS,City desires to continue cablecasting,over the Comcast cable television system, of regular meetings of the City Council and meeting of the executive committee of the City Council which occur on the same days as regular meetings; and WHEREAS, PCC represents that it is capable and willing to act as a designated access provider for the PEG channels provided under the Franchise, and City is willing to select PCC 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 PCC for acquisition of capital equipment and facilities to be used in connection with programming.and production of content for cablecasting on the PEG channels; and WHEREAS, the System President of the Board for Community Colleges and Occupational Education, or his 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 $500,000; and WHEREAS, the System President has designated the College President of Pueblo Community College to enter into such training and other agreements for PCC; 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) PCC agrees to perform,using its own employees and enrolled PCC students, and any consultants or contractors hired by PCC,the planning,implementation,services and items of work,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) PCC represents that it has the requisite authority and capacity to perform the work and services contemplated in Exhibit"A." To the extent any work or services are provided by consultants or contractors to PCC,PCC shall bind same to the terms of this Agreement, and shall be responsible for their work and services. (c) PCC agrees that all Television Instruction and services performed under this Agreement by students enrolled at PCC shall be supervised by PCC instructors,and PCC instructors shall supervise students when present upon City's facilities and 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. FEES FOR SERVICES; PEG CAPITAL GRANT. (a) Subject to appropriations therefor,for all videography,acting as PEG access provider and providing cablecasting,production,studio facilities for PEG use and all other services described in Exhibit "A," City will pay to PCC the sum of$ 2,500.00 per month for each month during the term of this Agreement. PCC shall submit monthly invoices to City in such amount which reference this Agreement. Payment will thereafter be made by City within 30 days after receipt of invoice. 2 1, (b) The compensation stated in section 3(a)shall be the only compensation made to PCC for the services under this Agreement,and no additional payment shall be made for overhead or expenses,utilities,copying,computer time,supplies,equipment rental or other expenses,it being the intent of the Parties that PCC is providing a "turnkey" solution as the City's designated access provider for the PEG channels and as videographer,producer and programming originator for City Council sessions as set forth in Exhibit "A." (c) Subject to receipt of PEG Capital Funds from Comcast and appropriation thereof by City Council,in addition to the compensation for services,City will make a grant to PCC in the amount of 54.2% of the PEG capital funds received from Comcast for acquisition by PCC of capital equipment and fixtures dedicated to PEG 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 PCC in the following manner: (i) PCC 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, PCC 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 PCC, aggregating up to but not exceeding the maximum amount specified in this Section. (d) 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 PCC,City commits to making PEG Capital Grants to PCC during term of this Agreement in the approximate amount of$65,000 per year.The equipment and fixtures used by PCC for cablecasting purposes shall,when necessary,be replaced or repaired at PCC's sole expense out of PCC's allocation of the PEG Capital Grant funds.The Parties further agree that all equipment and fixtures,located at City Hall or Memorial Hall which has been used for cablecasting purposes,is and shall remain the sole and exclusive property of the City. 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. 5. TERMINATION. (a) For Cause. This Agreement may be terminated by City for cause, including any material nonperformance by PCC, upon ten (10) days' prior written notice to PCC including a statement of the reasons therefor. During said ten (10) day period, PCC shall either correct the nonperformance or request a hearing before the City Council to determine whether PCC has failed to perform and whether, in the determination of Council, the Agreement should be terminated. If a 3 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. (b) For Convenience. Either party may terminate this Agreement upon ninety(90) days' prior written notice to the other Party. 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. PCC is performing services under this Agreement as an independent contractor,and nothing hereby shall be construed to make PCC or any of its agents, employees or students the agents or employees of City. No student, teacher, PCC 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 PCC, 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 Governmental Immunity Act, Section 24-10-101 et seg., C.R.S., or to waive any immunities or limitations on liability otherwise available to the City, PCC, or their officers, employees or agents. 8. LIABILITY. As to the City, PCC 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 PCC 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 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. semc PCC 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 an 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 4 • i 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,2nd Floor,Pueblo, Colorado 81003, or to PCC, Attention: ,900 W.Orman Avenue,Pueblo, Colorado, 81004. Either Party may changes 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,PCC shall not discriminate against any employee or student or applicant for employment because of race, color,religion, sex, martial status, sexual preference, national origin, disability or age. PCC 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. 5 STATE OF COLORADO CITY OF PUEBLO, A MUNICIPAL CORPORATION for the use and benefit of STATE BOARD FOR COMMUNITY COLLEGES AND OCCUPATIONAL B EDUCATION President of the City Council John Hickenlooper, Governor ATTEST: By CDC-, RD 6 Name: Patricia A. Erjavec, Ph.D. Cit L lerk Title: President of Pueblo Community College APPROVED AS TO FORM: ' 4' tie City Attorney APPROVED: STATE CONTROLLER Name: .. >i✓ (id Title:()/1"kc- .�5 41/i55 Date: 1 —ZlC 6 EXHIBIT "A" SCOPE OF SERVICES Generally, PCC shall provide three (3) discrete functions: (1) Serving as the designated access provider for the PEG channels under the Comcast Franchise, (2)Providing studio and PEG programming origination services,and(3)Videography,production and origination of City Council meetings. I. Designated Access Provider PCC shall serve as one of the City's designated access provider under the Comcast Franchise. The other designated access provider shall be Pueblo School District No. 60("D-60"). In connection therewith PCC shall: 1. Schedule and transmit all content to the headend of Comcast for airing on appropriate PEG channels as follows: 07/01/16 until D-60 Comcast PEG channels 17, 18 and 19 operates channel 18 or 09/30/16, whichever occurs first When D-60 operates channel 18 Comcast PEG channels 17 and 19 or 10/01/16, whichever occurs first, until 06/30/21 2. Manage the PEG channels on behalf of City, subject to general discretion from City. In general,the public use channel("P")shall be used for public content,the education channel("E") for educational or instructional content,and the government channel("G")for governmental content. 3. (PCC to explain other functions) 4. (PCC to explain other functions) 5. In managing the PEG channels, PCC shall make reasonable efforts to not permit commercial programming or advertising;provided that brief recognition of programming sponsors may be made. PCC 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 PEG channels and submit same to the City Manager for approval. In the event the City Manager requests any changes therein, PCC shall make such changes and resubmit the rules and regulations for approval. 7. Operate and maintain all equipment necessary to support PCC's functions as the designated access provider. 8. PCC 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. PCC should obtain the menu provider information directly from Comcast. 9. Make reasonable efforts to provide around-the-clock programming on two PEG channels.Excessive service outages during scheduled programming shall be grounds for termination of the 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 the PEG channels to content providers and the public. II. Studio and PEG Origination Services PCC shall provide a television studio and television production facilities, including all necessary equipment and personnel, in order to record,produce and transmit original programming content for two of the PEG channels. PCC shall schedule public forum time for studio use and make the studio available to the public during such scheduled periods,consistent with PCC's other studio needs. PCC shall adopt reasonable rules for the use of its studio facilities. III. Cablecasting City Council Meetings A. Background. City Council conducts regular meetings generally on the second and fourth Mondays of each month at 7:00 o'clock p.m., except when that day is a City-recognized holiday,in which event the meeting is usually held the following day("Regular Council Meetings"). City Council usually also holds an executive committee meeting(known as"Work Session")at 5:30 p.m. on the days of Regular Council meetings. B. PCC Duties. 1. PCC shall provide cameras,personnel,editing and production equipment,and all other things necessary or desirable, in order to record and transmit to Comcast's headend for viewing on the"G"channel,the Regular Council meetings and Work Sessions occurring on the dates of Regular Council Meetings. City may also request PCC provide such services for up to two (2) additional special meetings of the City Council per year. 2. PCC shall transmit the video and audio content of such Council Meetings without alteration,except that(a)at the request of the City Manager for good cause,portions of the meetings may be redacted for any rebroadcast, and (b) PCC shall redact out any obscene, libelous or prohibited matters. 3. PCC shall rebroadcast recorded Council Meetings at such times as it deems appropriate and consistent with its scheduling of other programming on the "G" channel. 4. At such time as City or PCC obtains closed-captioning abilities, PCC shall transmit same to Comcast with the live event cablecast as well as re-cablecasts of Council Meetings.