HomeMy WebLinkAbout08185ORDINANCE NO. 8185
AN ORDINANCE APPROVING AN INTERGOVERNMENTAL
AGREEMENT BY AND BETWEEN THE STATE OF COLORADO FOR
THE USE AND BENEFIT OF PUEBLO COMMUNITY COLLEGE AND
THE CITY OF PUEBLO, A MUNICIPAL CORPORATION
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SFrTinN 1
Subject to appropriations therefor, the Intergovernmental Agreement 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, and the City of Pueblo, a Municipal Corporation, dated March 1, 2010 (the
"Agreement'), a copy of which is attached hereto, having been approved as to form by
the City Attorney, is hereby approved.
SFrTinN 9
The President of the City Council is authorized to execute the Agreement in the
name of the City and the City Clerk is directed to affix the seal of the City thereto and
attest same.
SECTION 3
This Ordinance shall become effective upon final passage and approval.
INTRODUCED: April 12, 2010
BY: Chris Kaufman
COUNCILPERSON
APPROVED:
RESIDENT CF CITY CC) UNCIL
ATTESTED BY:
GIB' Y CLERK
PASSED AND APPROVED: April 26, 2010
Background Paper for Proposed
ORDINANCE
DATE: April 12, 2010 AGENDA ITEM # RR = 12
DEPARTMENT: Law Department
Thomas J. Florczak, City Attorney
TITLE
AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BY AND
BETWEEN THE STATE OF COLORADO FOR THE USE AND BENEFIT OF PUEBLO
COMMUNITY COLLEGE AND THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION
ISSUE
Should City Council approve an Ordinance entering into an Intergovernmental
Agreement with Pueblo Community College for provision of designated access provider,
cablecasting and PEG channel management services?
Approve the Ordinance.
BACKGROUND
Under the new Franchise Agreement entered into between the City and Comcast of
Colorado IV, LLC ( "Comcast "), Comcast will continue to make available three (3) public,
educational and government ( "PEG ") channels for non - commercial use. It will also
collect and remit PEG access support fees to be used solely for PEG capital facilities
and equipment ( "PEG Capital Funds "). As additional consideration for the Franchise,
Comcast agreed to advance approximately 2 years of access support fees to the City.
That advance, in the amount of $202,000 has now been received by the City.
The Intergovernmental Agreement before City Council has several elements to it: First,
it provides that Pueblo Community College ( "PCC ") will continue to provide cablecasting
of City Council meetings for $2,500 per month as it has done for many years under
purchase order. Secondly, it formally designates PCC as the City's PEG access
provider under the Franchise. In effect, PCC manages the PEG channels for the City
subject to City direction. Third, PCC provides studio and PEG programming origination
and production equipment and services for the PEG channels.
The Agreement also shares with PCC the PEG Capital Funds by providing it with a one-
time disbursement of $130,000 of the $202,000 advance, and approximately $65,000
per year of PEG Capital Funds anticipated for receipt in years 3 through 5 of the
Comcast Franchise term. These funds may be used by PCC solely for capital needs
and equipment to serve the PEG channels. PCC has a substantial need for these funds
both to provide meaningful television instruction for its students, and to fulfill its
designated PEG access provider functions under the Agreement.
FINANCIAL IMPACT
The Agreement is subject to annual appropriations. The $2,500 monthly fee for
cablecasting Council meetings has been appropriated and budgeted in the 2010
budget. The sharing of the PEG advance will require an appropriation ordinance. The
remaining $72,000 of the PEG Capital Funds advance may be expended by Council
only for capital needs serving the PEG channels, including capital expenditures during
the renovation of City Hall which serve PEG purposes.
INTERGOVERNMENTAL AGREEMENT
THIS AGREEMENT ( "Agreement ") is made and entered into this 1st day of March 2010, 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. 8109 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 Article XXII, Section XXII, Section Lb of the Franchise, City may
designated 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:
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 $ 2500.00 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
(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 one -time
grant to PCC in the amount of $130,000 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 in calendar years 2012
and 2013, and appropriation thereof by City Council to PCC, City commits to making PEG Capital
Grants to PCC during calendar years 2012 and 2013 in the approximate amount of $65,000 per year.
No additional PEG Capital Grant funds will be available during calendar year 2011.
4. TERM OF AGREEMENT
The term of this Agreement shall be from February 22, 2010 to December 31, 2013 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
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.
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, 1 24-
10- 101 et SeMc ., 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. sue. PCC shall provide and
maintain Workers' Compensation insurance coverage for self insurance on its employees complying
with the requirements of State law.
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 2010, 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.
0
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, I City Hall Place, Pueblo,
Colorado, or to PCC, Attention: Colleen Armstrong 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
for the use and benefit of
STATE BOARD FOR COMMUNITY
COLLEGES AND OCCUPATIONAL
EDUCATION
Bill Ritter, Governor
By: Pueblo Community College
Name: 0'
Colleen Armstrong
Title: Vice President of Administration &
Finance
APPROVED:
STATE CONTROLLER
By: Pueblo Community College
Name: 1 -A rwu,
Gayl Pettinari
Title: Controller
Date: 3- 1 k- 10
CITY OF PUEBLO,
A MUNICIPAL CORPORATION
By 6', �.,�. A �, �w
President of the City Council
ATTEST:
City Clerk
APPROVED AS TO FORM:
I ` � ,RE
0
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) V ideography, production and origination of City Council
meetings.
I. Designated Access Provider
PCC shall serve as City's designated access provider under the Comcast Franchise. In
connection therewith PCC shall:
Schedule and transmit all content to the headend of Comcast for airing on appropriate
PEG channels.
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 all 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. Coordinate with City on the information to be provided in the annual Comcast bill
insert under Article XXII, §5(a) of the Comcast Franchise Agreement.
12. 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, product and transmit original programming
content for all of the PEG channels. PCC shall schedule public forum time for studio use and make
the studio available to the public during such schedule 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.