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HomeMy WebLinkAbout13 COMCAST PROD SVCS 05-19-03AGENDA REPORT Agenda Item '~ 3 Reviewed: ~ I City Manager Finance Director MEETING DATE: MAY 19, 2003 TO: FROM: SUBJECT: WILLIAM A. HUSTON, CITY MANAGER PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION APPROVAL OF AN AGREEMENT WITH COMCAST OF LOS ANGELES, INC. FOR PROGRAM PRODUCTION SERVICES SUMMARY Federal law requires the City to reimburse Comcast for the cost of local cable television program production expenses. The proposed agreement provides for the continued broadcasting of City Council meetings and the production of other community programming while reimbursing Comcast for their costs. Staff proposes that Comcast be reimbursed for the cost of the program production services through a deduction on cable television franchise fees paid to the City. RECOMMENDATION Staff recommends that the City Council approve the agreement for program production services with Comcast of Los Angeles, Inc and authorize the Mayor and City Clerk to execute the agreement. FISCAL IMPACT The services specified in the agreement will cost the City $23,560 in the first year. The cost will be adjusted annually according to increases in the consumer price index. Comcast will deduct the costs from its franchise fee payments to the City. BACKGROUND Comcast currently provides cable television production services to the City at no cost pursuant to an understanding based on the prior franchise agreement. Since that arrangement was agreed upon, the Federal Cable Act was amended to require franchising authorities to reimburse franchisees for their costs. A major City objective in the franchise renewal process was to assure continued coverage of City Council Meetings and to increase production of City sponsored events. In compliance with the Cable Act, staff has negotiated a side agreement with Comcast which meets this objective and is in compliance with the Cable Act. The proposed program production services agreement stipulates a minimum of one thousand (1000) hours of Comcast production support each year. Staff has identified specific program requirements in the agreement and has provided for the production of additional programming as the need arises. The required programming and production labor hours are is identified below: Annual Event Frequency City Council Concerts in the Park Newsmaker segments Tustin City View segments Tiller Days Parade Production Dubbing (copies) Other programming Labor hours for Total annual labor each event hours allotted 26 18 470 4 4 16 24 3 72 26 2.5 72 1 50 50 As needed 200 As needed 120 TOTAL 81 1,000 Eighty-one (81) individual program segments have been identified by staff and Comcast. All of the programs identified above are existing productions with the exception of the Concerts in the Park. The programming identified in the agreement represents approximately One hundred and four (104) hours of broadcast time while requiring six hundred eighty (680) labor hours. Two hundread (200) labor hours are allocated to indirect production support (tape copying and editing) and one hundred and twenty (120) labor hours are allocated for additional programming or for other production support tasks. Should the City identify other programming needs, Staff have also negotiated an hourly fee for services over and above the specified one thousand (1000)labor hours of production services. The agreement anticipates that the City will take a more active role in producing the various program segments and that the City will assume editorial control of the productions. The term of the agreement is concurrent with the franchise agreement and can be terminated by the mutual consent of Comcast and the City with 180 days written notice. Adm[rfl'strative Services Manager Public Works Department CITY OF TUSTIN AGREEMENT FOR PROGRAM PRODUCTION SERVICES THIS AGREEMENT is made and entered into this day of May, 2003 by and between COMCAST OF LOS ANGELES, INC (hereinafter referred to as "COMCAST") for the benefit of the CITY OF TUSTIN, a California municipal corporation (hereinafter referred to as "CITY") together referred to as "Parties." RECITALS WHEREAS, COMCAST currently is maintaining and operating a Cable Television System covering about two-thirds of CITY's territory pursuant to a nonexclusive franchise granted by CITY, which expires June 16, 2003, and WHEREAS, COMCAST has provided ongoing television programming and production support to the CITY without compensation; and WHEREAS, COMCAST and CITY have completed the renewal of COMCAST's franchise for an additional term of 10 years with a five-year extension which was adopted on May 5, 2003 (Franchise Agreement); and WHEREAS, COMCAST has offered to provide local programming services pursuant to this Agreement as an additional benefit to CITY's residents and as an additional inducement for the foregoing franchise renewal. NOW, THEREFORE, based on the mutual covenants and promises herein, the parties agree as follows: AGREEMENT 1. PROGRAMMING SERVICES AND TERM. COMCAST agrees to produce, or provide production services for one thousand hours (1,000) of labor services for the production of programming as identified in Exhibit A to this Agreement for each year during the term of the Franchise Agreement approved pursuant to City of Tustin Ordinance number 1273. CITY may select alternate programming to that identified in EXHIBIT A subject to the mutual agreement of COMCAST. CITY may acquire additional programming support above the one thousand labor hours (1000), subject to the mutual agreement of the CITY and COMCAST. Each programming year shall commence on January 1 of each year and end on December 31 of the same year for the full term hereof. CITY and COMCAST reserve the right to terminate this Agreement upon mutual agreement of the Parties provided either Party serve the other Party with 180 days written notification. ~'~ ] ~ Comcast Programming Agreement 2. BROADCASTING. The CITY will broadcast the productions identified in this agreement on the CITY Government or Education Channel on a schedule at the CITY'S sole discretion. However, where it is convenient and mutually agreeable to both parties, COMCAST may broadcast certain events on a schedule and frequency requested by the CITY. COMCAST shall insure that all COMCAST produced events are of a quality acceptable to the City. To the extent that the CITY equipment is in good condition pursuant to Section 3 below, the live broadcast of City Council meetings shall be of a high quality in both visual and audio formats. 3 EQUIPMENT COMCAST shall utilize its own equipment for all productions required in this agreement, with the exception of Tustin City Council meetings. COMCAST will operate CITY owned equipment for City Council Meetings. COMCAST shall ensure that all CITY broadcast equipment is in good operating order for the production of City Council meetings. COMCAST shall promptly inform the CITY of any equipment deficiency so that repairs can be arranged. CITY shall be responsible for all costs associated with the maintenance of CITY production equipment. 4. COST. COMCAST agrees that the cost of production services provided under this Agreement shall be reimbursed by a reduction in the franchise fees paid to the City on a quarterly basis required by the Franchise Agreement. Notwithstanding anything to the contrary in the Franchise Agreement, CITY agrees that the cost of the production services shall not be considered "Gross Revenues" for purposes of calculating "Franchise Fees" under the Franchise Agreement. The annual cost of the programming contemplated by this agreement shall be $23,560, with annual increases allowed pursuant to Section 5 below. COMCAST will be compensated for additional programming costs over and above one thousand labor hours (1000) utilizing the hourly rate identified in EXHIBIT A. COMCAST shall provide the CITY with a full accounting of the programming expenses each quarter with the submittal of franchise fee to the CITY and pursuant to the hourly rate identified in EXHIBIT A. Because the City is compensating Comcast by a reduction in franchise fees, COMCAST shall not separate out the cost related to the services herein as a line item on CITY customer's cable bills and charge customers for such services. CITY reserves the right to audit programming expenses in the course of any franchise fee audit contemplated under the Franchise Agreement 5. COST ADJUSTMENT COMCAST shall be entitled to adjust the unit prices identified in EXHIBIT A according to increases in the Consumer Price Index. Such increase shall be effective on July 1 of each year to coincide with the CITY fiscal year and shall reflect increases in the Consumer Price Index for the preceding twelve months. At no time shall the fiscal year increase exceed five percent. The first cost adjustment contemplated by this agreement will become effective on July 1, 2004. 5. COPYRIGHT. CITY shall maintain the master copies of the productions provided for hereunder, and COMCAST hereby assigns all copyrights and ownership rights to CITY of same. To the extent required, upon CITY's request, COMCAST shall execute appropriate documents to assign to CITY the copyright to the productions provided for hereunder. Notwithstanding the foregoing, CITY may require -2- Comcast Programming Agreement COMCAST to appropriately edit the productions to reflect all contributing parties, as producers, directors and supporting personnel, associations or organizations, as the case may be. COMCAST is entitled to claim production credit for all programming contemplated under this agreement. 6. EMPLOYEES/SUBCONTRACTORS. COMCAST may utilize qualified employees or subcontractors to perform any or all of its duties hereunder. COMCAST shall assign only competent personnel to perform services pursuant to this Agreement subject to the CITY's approval. 7. INDEPENDENT CONTRACTOR. COMCAST is acting as an independent contractor providing the services under this Agreement and is not an agent, servant or employee of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and COMCAST. 8. NOTICE. All notices under this Agreement shall be in writing and shall be delivered by personal service or by certified or registered mail, postage prepaid, return receipt requested, of the parties. Any written notice to any of the parties required or permitted hereunder shall be deemed to have been duly given on the date of service if served personally or if served by facsimile transmission (with confirmation of receipt), or seventy-two (72) hours after the mailing. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand or request sent. Notices of the parties shall be addressed as follows: To COMCAST: Mr. Perry Parks, Vice President Government Affairs 550 N. Continental Boulevard, Suite 250 El Segundo, Ca 90245 Joseph Fisher, President Comcast Western Division P.O. Box 5147 San Ramon, Ca 94583 To CITY: City of Tustin Attn.: Public Works Director 300 Centennial Way Tustin, CA 92780-3767 Each party shall provide the other party with telephone and written notice of any change in address as soon as practicable. 9. INDEMNITY. COMCAST shall defend, hold harmless, and indemnify CITY as to any and all claims, judgments, liabilities or damages for personal injuries and property damage directly arising out COMCAST's performance under this Agreement, including by way of illustration but not limitation, any claim by any performer covered or included in the productions hereof. ~'~3 ~'~ Comcast Programming Agreement CITY shall defend, hold harmless, and indemnify COMCAST as to any and all claims, judgments, liabilities or damages for personal injuries and property damage directly arising out CITY's performance under this Agreement, including by way of illustration but not limitation, any claim by any performer covered or included in the productions hereof. 10. NO THIRD-PARTY RIGHTS. The parties intend not to create rights in, or to grant remedies to, any third party as a beneficiary of this Agreement or of any duty, covenant, obligation, or undertaking established herein. 11. GOVERNING LAW/EXCLUSIVEVENUE. This Agreement shall be governed and construed in accordance with the laws of the State of California and exclusive venue shall be in the County of Orange, whether litigation ensues in State or Federal court. 12. SEVERABILITY. If any provision of this Agreement shall be determined to be contrary to law or unenforceable, the remaining provisions shall, at the option of the party who would have been benefited by such unenforceable provision, be severable and enforceable in accordance with their terms. 13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement amount the parties. No changes of, modification to, or additions to this Agreement shall be valid unless the same shall be in writing, signed by all parties hereto and made in accordance with the provisions hereunder. 14. DEFAULT. In the event of either Party's default hereunder, the other Party shall have available all remedies at law or in equity not otherwise provided for herein, including by way of illustration but not limitation, suits for injunctive or declaratory relief, specific performance, relief in the nature of mandamus, or action for damages. All remedies, including the remedies specified in this Agreement, shall be cumulative and not exclusive of one another, and the exercise of any one or more of said remedies shall not constitute a waiver or election with respect to other available remedy. [SIGNATURE PAGE FOLLOWS] Comcast Programming Agreement IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. CITY OF TUSTIN COMCAST OF LOS ANGELES, INC. Mayor By: Its: Attest: City Clerk Approve as to form: City Attorney ~5~'~ Comcast Programming Agreement EXHIBIT A CITY PROGRAMMING and PRODUCTION Annual Programming/Production Allotment: Annual Event Frequency City Council Concerts in the Park Newsmaker segments Tustin City View segments Tiller Days Parade Production Dubbing (copies) Other programming 1,000 hours Labor Hours Total Annual Labor for each event* Hours allotted 26 18 470 4 4 16 24 3 72 26 2.5 72 1 50 50 As needed As needed 200 120 TOTAL * All production times are approximate. 1,000 Additional Programming Unit Cost: $23.56 'an Hour Comcast Programming Agreement