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HomeMy WebLinkAboutCommunity Media Access Collaborative CMAC - Services Agreement to act as their jointly designated public edication and government acces (PEG Access) providerSERVICES AGREEMENT CITY OF FRESNO, CALIFORNIA o aL4 THIS AGREEMENT is made and entered Into effective the O`V .day of J�lkt 2010, & 4 by and between the CITY OF FRESNO, a California municipal corporation (hereinafter referred to as "Cli and Community Media Access Collaborative, a Caldomia non -profs public beneAt corporation (hereinafter referred to as "CMAC"). RECMALS WHEREAS, the Federic Clovis Community Media Authority, a joint powers agency created by the Cities of Fresno and Clovis to act as their jointly designated PubAc, Education and Government Access ('PEG Access) provider, has designated! CMAC as the access management organization to manage and administer the PEG Access channels, to operate Community Media Contains), and to receive PEG Access funds provided to the dries by state video franchisees (i. e., AT&T and Comcast)', and WHEREAS, The objectives of this partnership are to coordinate and share resources and provide opportunities for access to community media services in the Fresno and Clovis areas; and WHEREAS, CMAC has entered into a separate agreement with CITY to sublease once and studio space at 1555 Van Ness Avenue (Na"Lease"); and WHEREAS, this Agreement is intended to form a cooperative relationship between CITY and CMAC; and WHEREAS, as of the date of this Agreement, the PEG Access funds received by CMAC are restricted to capital leases and equipment, and therefore, CMAC and CITY have structured a relationship whereby CITY will provide funds through this Agreement for operations of the community media center in return for specific deliverables as ounined in this Agreement; and WHEREAS, this Agreement will be administered for CITY by Its City Manager (hereinafter refemed to as "Administrator) or his leer designee. NOW, THEREFORE, in consideration of the foregoing and of the mutual premises and agreements hereinafter set forth, it is mutually agreed as follows: AGREEMENT 1. Incorooredon of RecM1els. The above -stated recitals are Incorporated herein by reference and are a part of this Agreement. 2. Scene of Services. CMAC shall perform to he satisfaction of CITY the services described in Exhibit A, including all work neediest to, or necessary to perform, such services even though not specifically described in Exhibit A. The performance of services pennant to this Agreement is sometimes referred to herein as the 'Project .- 3. Term of Agreement and Time for Performance. This Agreement shall he effective from the date first set forth above ('Effective Date') and shall continue in full force and -1- effect through June 30, 2025, subject to any earlier termination in accordance with this Agreement. The services of CMAC as deembed in Exhibit A are to commence upon the Effective Date and shall be completed in accordance with any performance schedule set IoM in Exhibit A. 4. Compensation. (a) Cli sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a fatal fee of $200,000 annually. CMAC is not entitled to further compensation for expenses incurred In pedernm nce of the services (b) Excepting the first annual payment, xmich shall the payable wimp 30 days of the execution of this contract, or upon the Commencement Date of ttre Lease las defined in the Lease), whichever is later, Invoices shall be rendered quarterly for services performed In the preceding quarter and will he payable in the normal coume of CITY business. Every attempt will be made to pay such invoices will 30 days of receipt. (c) The parties may modify this Agreement to Increase or decrease the scope of services or provide for the rendlfion of seri not required by this Agreement, which modification shall include an adjustment to Chl compensation. Any change in the scope a services must be made by written amendment to the Agreement signed by an authorized representative for each party. CMAC shall Trot be entitled to any additional compensation 4 services are performed pdorto a signed written amendment. 5. Termination Remedies and Force Me' sure. (a) This Agreement shall terminala without any liability of CITY to CMAC Upon the earlier of (1) CMAC's filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against CMAC: (ii) CITY's non-appropdal of funds sufident to meet its obligations hereunder during any CITY fiscal year of this Agreement, or insufficient funding for the project', (iii) expiation of this Agreement: or (iv) the expiration or termination of the Lease. (b) Immediately upon any termination or expiration of this Agreement, CMAC shall (i) immediately stop all work hereunder (II) immediately cause any and all of Its subcontractors to cease work: and (til) return to CITY any and all uneamsN payments and all properties and materials in the possession of CMAC that are owned by CITY. Subject to the terms of this Agreement, CMAC shall be post compensation for services satisfactorily performed prior to the effective date of termination. CMAC shall not be paid for any work or services performed! or costs incurred which reasonably could have been avoided. (c) In me event of termination due to failure of CMAC'a breach of this Agreement, CITY may withhold an amount that would otherwise be payable as an offset to, but not in excess of, CITY'a damages caused by such breach. In no event shall any payment by CITY pursuant to this Agreement constRute a waiver by CITY of any breach of mis Agreement which may then exist on the part of CMAC, nor shall such payment impair or prejudice any remedy available to CITY with respect to the breach. (d) Upon any breach of this Agreement by CMAC, CITY may (i) exercise any right remedy (in contract, law or equity), or pull which may be available to it under -2- applicable laws of the Slate of California or any other applicable law. (it) proceed by appropriate court action to enforce Me terms of the Agreement and/or pip recover all drecl, indirect, consequential. economic and incidental damages for the breach of the Agreement. If it Is determined that CITY improperly terminated! this Agreement for default such termination shall be deemed a terminal for convenience. (e) CMAC shall provide CITY with adequate written assurances of future performance, upon Administrators request. In the event CMAC fails to comply with any terms or conditions of this Agreement. (p CMAC shell be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of CMAC and without its fault or negligence, such as acts of God or the public enemy, acts of CIN in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common centre, CMAC shall notify Administrator in witting as soon as it is reasonably possible afterthe commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Administrator of the cessation of such occurrence. 6. Confidential information and Ovinership of Document . (a) Any reports, Information, at other data prepared or assembled by CMAC pursuant to this Agreement shall not de made available to any individual or organization by CMC without theprior wriden approval of the Administrator. Curing the term of Mis Agreement, and thereafter, CMAC shall not, without Me prier written consent of CITY, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of CITY, including but not limited to business plans, marketing plans, financial Information, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or Submitted, orally, In witting, or by any other medium or media. All Confidential Information Shall be and remain confidential and proprietary. (b) Any and all writings and documents prepared or provided by CMAC pursuant to Mis Agreement are the property of CITY at the time Of preparation and shall b r turned over to CITY upon expiration or termination of Me Agreement CMAC shall not permit the reproduction or use thereof by any other person except as otheryrss expressly provided herein. (c) This Section 6 shall survive expiration or termination of this Agreement ]. Professional Sell. It k further mutually understood and agreed by and betvreen the parties hereto that masmuch as CMAC represents to CITY that CMAC is skilled in the profession and shall perform in accordance with Me standards of said profession necessary to perform the services agreed to be done by it under this Agreement. CITY relies upon the skill of CMAC to do and perform such services in a skillful manner and CMAC agrees to thus perform the services. Therefore, any acceptance of such services by CITY shall not operate as a release of CMAC from said professional standards. 8. IrMamnlrcation. To Me furthest extent allowed by law. CMAC shall indemnify. hold harmless and defend CITY and each of lts officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, erasures, costs and damages -3- (whether in contract, tort or and liability. Including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and adions in law or Nulty (including reasonable attorney's fees and litigation expenses) that area out of, pertain to, or relate to the negligence, recklessness or willful misconduct of CMAC, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If CMAC should subcontract all or any codon of Me services to be performed under this Agreement, CMAC shall require each subcontractor to Inderni hold harmless and defend CITY and each of its officers, offcies, employees, agents and volunteers in accordance with the terms ofthe preceding paragraph. This Section shall survive termination or expiration of this Agreement. 9. Insurance. (a) Throughout the life of this Agreement, CMAC shall gay for and maintain in full force and effect all insurance as required in E hlbB B or as may be authorized in writing by CITY's Risk Manager or hislher designee at any "a and in hisiher sole discretion. (b) If at any time during the life of the Agreement or any extension, CMAC or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shell be discontinued immediately, and all payments due or that became due to CMAC shall be withheld until notice Is received by CITY that the required Insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required! insurance shall be sufficient souse for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve CMAC of its responsibilities under this Agreement. The phrase 'fall to maintain any required insurance- shall Include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against d, indicating that Me insurer Is insolvent. (c) The fad that insurance is obtained by CMAC shall not be deemed to release or diminish the liability of CMAC, including, without limitation, liability under the Indemnity provisions of this Agreement The duty to indemnify CITY shall apply to all daims and liability regardless of whether any insurance polities are applicable. The policy limits tlo not ad as a limitation upon the amount of sidemntfication to be provided by CMAC. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CMAC, its pdndpals, kers, agents, employees, persons under the superviaigr of Chl vendors, suppliers, invitees, contractors, consultants, subcontractors, or anyone employed directly or hall by any of them. (d) Upon request of CITY, CMAC shall immediately fumish CITY with a complete copy of any Insurance policy required under this Agreement, incuding all endorsements, with said copy certified by Me underwriter to be a true and corned copy of the original policy. This requirement shall survive expiration or termination of this Agreement. (e) If CMAC should subcontract all or any portion of the services to be performed under this Agreement, CMAC shall require each subcontractor to provide Insurance protection in favor of CITY and each of its officers, officials, employees, agents and volunteers in accordance with Me terms of this section, except that any required cetlRmates and applicable endorsements shall be on file with CMAC and CITY pdorto Me commencement of any services by the subcontractor. 4- 10. Cl of Interest and Non-Sd'italcn. (a) Pnor to CITY's execution of this Agreement, CMAC shall complete a City of Fresno conflld of interest disclosure statement in the form as set forth in ExNlbd C: Curing the term of this Agreement, CMAC shall have the obligation and duty to immediately notify CITY In wTXing of any change to the information provided by CMAC in such statement. (b) CMAC shall comply, and require its subcontractors to comply, with all applicable (0 professional canons and requirements governing avoidance of impomiissibk Giant conflicts; and (ii) fedena, state and local cardict of interest laws and regulatlams including, without limitation, CelRomia Government Gone Section 1090 at seq., the California Political Reform Ad (California Government Code Section 87100 at. seq.) and the regulations of the Fair POligcal Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Saction 18700 at. aeq.). At any time, upon written request of CITY. CMAC shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligence inquiry, CMAC and the respective subcontractor(s) are in full compliance with all laws and regulations. CMAC shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. upon discovery of any facts giving rise to the appearance of a conflict of interest CMAC shall immediately nor CITY of these facts in writing. (a) In performing the wodc or services to be provided hereunder, CMAC shall not employ or retain the services of any Which while such person either is employed by CRY or is a member of any C" coundl, commission, board. commerce, or similar CITY body, This requirement may be waived In writing by the Administrator, rf no actual or potential conflict u Involved (d) CMAC represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherxise, direct or indeed, to solicit or procure this Agreement or any nghtslbenaPos hereunder. (e) Neither CMAC, nor any of CMAC's subcontractore contenting any services pursuant to this Agreement, shall bid for, "ate anyone in the preparation of a bid for, or perforrn any services pursuant to, any other contrad In connection with this Agreement unless fully disclosed to and approved by the Administrator, in advance and in wriliig. CMAC and any M its subcontractors shall have no interest, direct or indirect, in any other confined with a third party in connection with this Agreement unless such interest is In accordance with all applicable laws and is fully disclosed to and approved by the Administrator, in advance and in writing. Notwithstanding any approval given by the Administrator under this provision, CMAC shall remain responsible for complying with Section 10(b), above. (f) If CMAC should subcontract all or any portion of me work to be performed or services to be provided under this Agreement, CMAC shall indude the previsions of this Section 10 in each subcontract and require as subcontractors to comply therewith. (g) This Section 10 shall survive expiration or termination of this Agreement. 11. Recvdina Program. In the event CMAC maintains an office or operates a faallity(ies), or is required herein to maintain or operate some, within the incorporated limits d the City of Fresno, CMAC at its sole cost and expense shall: 5- (i) Immediately establish and maintain a viable and ongoing recycling program, approved by Cll Solid Waste Management Division, for each office and tacitly. Lbrature describing CITY recycling programs is available from CITY's Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111. (it) Immediately contact CITY'S Solid Waste Management Division at (559)821-1452and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (iii) Cooperate with and demonstrate to the satisfaction of CITY'S Solid Waste Management Division the establishment of the recycling program In paragraph (i) above and the ongoing maintenance thereof. 12. General Terms. (a) Except as otherwise provided by law, all noticx expressly required of CITY within the body of this Agreement, and not otherwise specifically provided for, shall be effective only R signed by the Administrator m hlslher designee. (b) Records of CMAC's expenses pertaining to the Pmject shall be kept on a generally recognized amounting basis and shall be available to CIN or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a Mood of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of CMAC pertaining to the Project shall be available for the purpose of making super examinations, excerpts, and transcriptions for the same period of time. This Section 12(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by CITY, CMAC shall have provided evidence to CITY that CMAC is licensed to perform the services called for by this Agreement (or that no license Is required). if CMAC should subcontract all or any portion of the work or services to be performed under this Agreement, CMAC shall require each subcontractor to provide evidence to CITY that subcontractor Is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. 13. Nondiscrimination. To the extent required by controlling federal, state and local w, CMAC shall not employ discriminatory practices in Me provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical common, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam ere. Subject to the foregoing and all the performance of this Agreement, CMAC agrees as follows'. (a) CMAC will comply with all applicable laws and regulations providing Mat no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, statue as a disabled veteran or veteran of the Vietnam era be excluded from participation in, ba, denied the benefits of or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. W M) CMAC will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability. medical condition. mental status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. CMAC shall ensure that applicants are employed and the employees are heated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital statue, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era Such requirement shall apply to CMAC's employment practices Including, but not be limbed to. the followingemployment, upgrading demotion or annual, recmitment or recruitment advertising; layoff or termination; rates of pay or other forms of ompensation; and selection for training, including apprenticeship. CMAC agrees to poet in conspicuous places, available to employees and applicants for employment notices setting forth the provision of this nondiscrimination clause. (c) CMAC will, In all solartabons or advertisements for employees placed by or on behalf of CMAC in pursuit hereof, state that all qualified applicants will reserve consideration for employment without regard to race, religious creed color, national origin, ancestry, physical disability, mental disability, medical condition, martial status, sex, age, sexual orientation, eMnicity, status as a disabled veteran or veteran of the Vietnam era. (d) CMAC will serW to each labor union or representafive of workers with which it has a collective bargaining agreement or offer contract or understanding, a notice advising such labor union or workers' representatives of CMAC's commitment under this Section and shall post copies of the notice in conspicuous places available to employees and applicants for employment ib. Independent Coubsciar. (a) In the humming of the services provided for herein, CMAC is acing solely as an independent contractor. Neither CMAC, nor any of its officers , agents or employees shall ba deemed an officer, agent employee, joint venturer, partner or associate of CITY for any purpose. CITY shall have no right to control or supervise or direct Me manner or method by whlch CMAC shall perform its wank and fgnobons. However, CITY shall retain the fight to administer this Agreement so as to verify Mat CMAC is performing Its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between CMAC and CITY. CMAC shall have no authority to bind CITY absent CITY's express written consent Except to the extent otherwise provided in this Agreement, CMAC shall bear its own costs and expenses In pursuit thereof. (c) Because of its status as an Independent contractor, CMAC and its. officers, agents and employees shall have absolutely no right to employment rights and benefits available to CITY employees. CMAC shall be solely liable and responsible for all payrWl and tax withholding and for providing to, or on behalf of, Its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together wNt its ether obligations under this Agreement, CMAC shall be solely responsible, indemnify, defend and save CITY harmless from all matters relating to employment and tax withholding for and payment of Clvbi employees, Including, without limitation, (i) compliance with Social Security and unemployment insurance withholtling, payment of workers' compensation benefits, and all other laws and regulations governing matters of employee withholding taxes and payment; and bG (ii) any claim of right or Interest in Cm employment benefits, entgann s, progrems and/or funds offered employees of CITY whether arising by reason of any common law, de facto, leased. or co -employee rights or other theory. It is acknowledged that during the term of this Agreement, CMAC may be providing services In others unrelated to CITY or to this Agreement. 15. Notices. Any notice required or intended to he given to either pard under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personalty, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or carried mail, with postage prepaid return receipt requested addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the paries may from time to time designate by wiitlen notice. Notices served by United States mall in the manner above descdbed shall be deemed sufficiently served or given at the time of the mailing thereof. 16. Sindin . Subject to Section 17. below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives. n. Assignment. (a) This Agreement is personal to CMAC and there shall be no assignment by CMAC of its rights or obligations under this Agreement without the prior written approval of the Administrator or halter designee. Any attempted assignment by CMAC, its successors or assigns, shall be null and void unless approved in writing by the Administrator or histler designers fb) CMAC hereby agrees not to assign the payment of any monies due CMAC from CITY under the terms of the Agreement to any other individual(s), corporetion(s) or entity(ies). CITY retains the right to pay any art all monies due CMAC directly to CMAC. 16. Compliance With Law. In provlmng the services required under this Agreement, CMAC shall at all times comply with all applicable laws of the United States, the State of Caltlomia and CITY, and with all applicable regulations promulgated by fademl, state, regional, or local administrative and regulatory agencies, now In force and as they may be enacted issued or amended during the term of this Agreement. 19. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement No provisions of this Agreement may he waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 20. 62vemino Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of CalRomia, excluding, however, any coni of laws rule which would apply Ne law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, Calttomia. 21. Headings. The section headings In this Agreement aro for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement, U. Several. The provisions of this Agreement are severable. The invalidity, or unenfomeablltty of any ane provision in this Agreement shall not affect the other provisions. 23. Interpretation. The parties acknowledge that this Agreement in He final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shell not be resoled by construing Nis Agreement In favor of or against either paM, bol rather by construing the terms in accordance with their generally accepted meaning. 20. Attorni Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, Me prevailing party in such proceeding or action shall be eni to recover from the other party its reasonable attorney's fees and legal expenses. 25. Ems_ Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a pad of this Agreement. 26. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms add conditions of the hotly of this Agreement shall control and take precedence over the terms and conditions expressed vnMln the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the trades, provided for within Me body of this Agreement, shall be null and void. 27. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive W shall, wherever possible, be Cumulative with all other remedies at law or in equity. 28. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within the Agreement are intended for the sidecifm parties hereto as Identified In the preamble of this Agreement. Nolwtthstandirg anything stated to the contrary In this Agreement with the exception of the indemnify obligations of CMAC and its subcontractors, It w not intended that any rights or interests in this Agreement benefit orflow to the interest of any third parties. 29. Extent of Agreement Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with reaped to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both CITY and CMAC. -9 IN WITNESS WHEREOF, the paries have executed this Agreemanl at Fresno, California, the day and year first above written. Cf1V OF FRESNO, a California l6�municiipal combustion By: Ave Mark Scott, City Manager ATTEST: REBECCA E KLISCH City Ckrl By: °�'"y BIsNo APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney By: Mark J. Gleason, Deputy City Attorney Addresses Cm: City of Fresno Attention: Nicok R. Laos, Deputy City Manager 2600 Fresno Street Fresno, CA 93721 Phone: (559) 621-7774 FAX: (559)621-P/t6 Attachments'. Exhibit A - Scope of Services Exhibit 8 - Insurance Requirements Exhlbg C- Conflict of Interest Disclosure Form 10- Community Media Access Collaborative, A CaHomia non-profit public benefit corporation a Name / -1 Tak'. - LYl 1,, 0 br,. (X corporation or LLC, Board Chair, Pres. or Vice Pres.) By. _ Name' Title: (M corporation or LLC, CFO, Treasurer, Secretary or Assistant Secretary) Any Applicable Professional License: Number. Name: Date of Issuance: CMAC: Community Media Access Collaborative Attention: Jerry Lee. Board Member 1555 Van Ness Avenue Fresno, CA 93721 Phone'. FAX: Exhibil SCOPE OF SERVICES CMAC Service Agreement between me City of Fresno and Community Media Access Collaborative Public Access Media Services PROJECT TIRE The PEG Access services to be provided by CMAC will help create non -commensal community programming for viewing on PEG Access channels operated by CMAC and serving the toles of Fresno and Clovis as well as for distribution through other media such as the Internet. CMAC will promote and encourage educational institutions, government. non-profit, and other public benefit agencies to uliliee available PEG Access resources and facilities. Spec services to be provided to CITU under Nis Agreement shall include: 1. In addition to service provided to qualified PEG Access users within the City of Fresno, CMAC will provide specefc training support to CRY staff In the techniques of media production and provide technical advice in the execution of productions. CMAC will Conduct training sessions specificely for CITU personnel on at least a quarterly basis, on request Training will be scheduled and presented in collaboration with the CITY's Public Information Once, 2. CMAC will provide up to 25 staff hours for the production of CITWspersored programming each month. CMAC will provide all set up, recording, editing, and playback services for these projects. Production shall be coordinated! through the CIW's Public Information Office. In the event that CITY departments, officers, Count Members, or other island! parties Contact CMAC directly for an& services, CMAC shall Contact the CIW's Public Information Office for authmtration to proceed with the requested services. If CMAC fails to acquire me Public Information Oficer's authorization to Proceed with the programming, mat session shall not be Counted towards the number of production hours allocated for the month under mis Section of the Agreement. 3. In year one of the Agreement, CITY will provide CMAC with a list Of requested pmductlon equipment, whose cost is not to exceed $00,000, and CMAC will purchase, or lease, that equipment for the CIW's use. CMAC will retain ownership of the equipment and will be responsible for He repair. CITY will provide secure storage space for the equipment and will be responsible for its Preventive maintenancemyeartwoof use Agreement, the equipment requested by City and purchase or leaned! by CMAC will not exceed $40,000. In years three, four and five of the Agreement, me equipment requested by City and purchase Or leased by CMAC will not exceed $15,000 annually. For the remainder of the years of the Agreement, CITY will make is request for Equipment replacement by September 1 a of each year and CMAC will make every effort to Comply, providing that in CMAC's judgment, me equipment request is justified. Should at any time during the length m this Agreement, additional, or replacement equipment be required in order to assure the Continued operation of me PEG Access chamnel(s), CMAC will provide, at CMAC's sole expanse, the equipment needed to assure thalcontinued operation. All production equipment provided for C1W use will also be made available, on request, and at mutually agreed to times, to the City of Clovis for its production needs. 4. Within 9 months of the effective date of this Agreement. CMAC will provide an automated transmission and playback system, at CWC's sole expense, for me -1- Purposes of programming one or more PEG Access channels) on a 24-hour basis. System must be capable of delivering full -resolution video and audio signals to CITYs existing and future franchised video providers (currently Comcast and AT&T). System must also provide capability for delivering PEG Access content to the public via the Internet. CMAC will provide CITY with scheduling, transmission and playback servious for all PEG Access programming, including support for live programming onginall from City Hall. CMAC will operate and maintain me system in proper operating condition throughout the duration of this Agreement; CMAC will provide CITY with use of PEG Access studios and equipment for production activity, training and other related Purposes at no charge, according to mutually agreeable scheduling procedures. Studio and equipment scheduling shall be coordinated threugh the ClWs Public Information Eiffke. Either services may be provided upon mutual agreement between CITY and CMAC. 2- Exhibit B INSURANCE REQUIREMENTS CMAC Service Agreement between the City of Fresno and Community Media Access Collaborative Public Access Meda Services PROJECTTMUE Minimum Scope of Insurance Coverage shall to at least as broad as. 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, which shall include insurance for 'bodily injury,' 'property damage' and 'personal and adver isirg injury' wgh coverage for premises and operations, products and completed operations, and contractual liability 2. The most current version of Insurance Service Office (ISO) Business Auto Coverage Farm CA 00 01. which shall include coverage for all ownetl, hired, and non -awned automobiles or other licensed vehicles (Code 1 -Any Auto). 3. Warkers' Compensation Insurance as required by the California tabor Code and Employer's Liability Insurance. d. Professional Liability (Errors and Omissions) insurance appropriate to Chili Profession. Archltecl's and engineer's coverage is to be endorsed to include contractual liability. Minimum Limits of Insurance CMAC shall maintain limits of liability of not less than: General Liability: $1,000,00 per occurrence for bodily injury and property damage $1.000,00 per occurrence for personal and advertising Injury $2,000,00 aggregate for products and completed operations $2,000.000 general aggregate applying separately to the work performetl under the Agreement 2. Automobile liability: $1,000,000 per accident for bodily Injury and property, damage 3. Employer's Liability. $1.000,000 each accident for bodily Injury $1.000,00 disease each employee $1,000.000 disease policy limit -1- 4. Professional Liabillty(Emos and Omissions) $1.000.000 per claim/ac rmhnce $2,000,000 policy aggregate Umbrella or Excess Insurance In the event CMAC purchases an Umbrella or Excess ince pollcy(ies) to meet the "Minimum Limits of Insurance.' this insurance pollcy(ies) shall'follow form" and afford no less coverage than the primary insurance policy(ies). Deductibles and Seff-Insured Retentions CMAC shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and CMAC shall also be responsible for payment of any sett -insured retentions. Any deductibles or sett -insured retentions must be declared to, and approved by, the CITY's Risk Manager or hislher designee. At the option of the CITY's Risk Manager or hislher designee, either in the insurer shall reduce or eliminate such deduct ions; or sew insured retentions as respects CITY, its offcem, offidels, employees, agents and volunteers; or (ii) CMAC shall provide a financial guarantee, satisfactory to CITY's Risk Manager or hiamher designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall CITY be responsible for the payment of any deductibles or sett-mrsured retentions. Other Insurance Provisions TiGeneral Liability and Automobile Liabilityinsurance policiesam to contain, or be endorsed to contain, the following provisions: 1. CITY, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. 2. The coverage shall contain no special limtations on the scope of protection afforded to CITY, be officers, officials. employees, agents and volunteer. 3. CMAC's insurance coverage shall be primary and no contribution shall be required of CITY. In@ Workers Compensation I' is to contain, or be endorsed to contain, the following provision: CMAC and is insurer shall waive any right of subrogation against CITY, its officers, officials, employees, agents and volunteers. If the Professional LI bit ty (Enum and Omissions)insurance policyis wrinen on a claims -made Ism. 1. The "Retro Date' must be shown, and must he before the effective date of Me Agreement or the commencement of work by CMAC. 2. Insurance must be maintained and evidence of insurance must be novel for at Rest 5 years after any expiration or termination of the Agreement or, in the alternative. the policy shall be endorsed to pri not less than a 5 -year -2- discovery period. This requirement shall survive expiration or ter inti of the Agreement. 3. If coverage is canceled or non -renewed, and not replaced with another claims - made policy form with a "Retro Date' prior to the effective date of the Agreement, CMAC must purchase'expanded repenting' coverage for a minimum of 5 years following the expiation or termination of the Agreement 4. A copy of the claims reporting requirements must be submitted to CITY for review, 5. Three requirements shall survive expiation or termination of the Agreement. All policies of Insurance required hereunder shall be endorsed to provide that the coverage shall not be cancelled non -renewed, reduced in beverage or in limits except after 30 telemeter day written notice by certified mail, retum receipt requested has been given to CITY. Upon Issuance by the insurer, broker, or agent of a notice of cancellation, non -renewal, or reduction in coverage or in limits, CMAC shall furnish CITU with a new defrosts and applicable endorsements fix such polid(ies). In the event any policy is due to expire during the work to be performed for CITY, CMAC shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than 15 calendar days their to me expiration date of the expiring policy. Acceptability of Insurers All policies of insurance required hereunder shall be placed with an insurance company(ies) admitted by the California Insurance Commissioner to do business in the State of California and rated not less than -A-VII" in Best's Insurance Rival Guide; or authorized by Clf Yb Risk Manager. Verific lion of Coverage CMAC shall furnish CITY with all certi cate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY's Risk Manager or hislher designee prior to CITY's execution of the Agreement and before work commences. -3- ExhMttC DISCLOSURE OF CONFLICT OF INTEREST Public Access Media Services PROJECT TRUE Explanation: Signature (address) F1AcIdWorialpage(s)attached - (city state zip) YES' NO 1 Are you currently in litigation with the CM of Freeno or any of Its. ❑ ❑ agents? 2 Do you represent any fion, organ'oatlon or parson who is in ❑ ❑ litigation with Me City of Fresno? 3 Do you cuneinty represent or perform work for any clients who do ❑ ❑ business wiM the C y of Fresno? 4 Are you or any or your principals, managers or professionals, owners or investors In a business whish does business with the ❑ ❑ City of Fresno, or in a business which b in litigation with the City of Fresno? 5 Are you or any of your pnneipals, managers or professionals, related by blood or manage to any City of Fresno employee who ❑ ❑ has any a nlficant role in Me subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or Indirect In any other contract in connection with ❑ ❑ this Project? If the answer to any question is yes, please explain In full below. Explanation: Signature (address) F1AcIdWorialpage(s)attached - (city state zip) Exhil DISCLOSURE OF CONFLICT OF INTEREST Public Access Media Services PROJECT TmE Sig ure arse) ( N C �"c� CI�NuiJr (company) (address) ❑ Additional page(s) attached. Idty state zip) YES. NO 1 Are you wrrengy In litigation with the City of Fresno or any of he ❑ agents? 2 Do you represent any lrm, organization or person who is in ❑ llCgation "In the City of Fresno? 3 Do you currently represent or perform work for any clients who do ❑ business with the City of Fresno? 4 Are you or any of your principals, managers or praferisionals, owners or investors in a business which does business. with U e ❑ lci City of Fresno, or in a business which is in lilgation with the City of ik Fresno? 5 Are you Or any of your prindpals, managers or professionals, related by blood or marriage to any CM of Fresno empbyee wha ❑ hes any sign@IwM role In the subject matter d this service? 6 Do you or any of your subconlradom have, or expect to have, any interest, direct or indirect, in any other contrad in ccnnedion wdh ❑ this Project? IAf Me4 question is yes, please explain In fug low. r to anyC -ans .:aD N1Wc cl,a": kvc z ems>I cx P r - Sig ure arse) ( N C �"c� CI�NuiJr (company) (address) ❑ Additional page(s) attached. Idty state zip) cso,'F FR REPORT TO THE CITY COUNCIL AGENDAITEMNO. L:D0pm#3E COUNCIL MEETING 6124//0 Avvaovaoey ra:a tootrCoodi Dot 4/ o� come:ieoslmd'-mo64+ nevnmaevro ave/raa" June 17, 2010 ansa wR avude0NMlComxA FROM: MARK SCOTT, City Manager para /a //n� piss BY NICOLE R. ZIEBA, Deputy City Manager SUBJECT: APPROVE ALL NECESSARY ACTION TO SUBLEASE SPACE IN THE HISTORIC BEE BUILDING TO THE COMMUNITY MEDIA ACCESS COLLABORATIVE (CMAC), AND ENTER INTO AN AGREEMENT FOR SERVICES BETWEEN THE CITY AND CMAC. L ADOPT A FINDING OF CATEGORICAL E%EMPTION UNDER CEPA GUIDELINES, SECTIONS 15601 (LEASE OF EXISTING FACILITIES). 2. APPROVES BETWEEN CITY OF FRESNO AND CMAC IN SUBSTANTIAL FORM, AND AUTHORIZE THE CITY MANAGER TO EXECUTE UPON APPROVAL AS TO FORM BY THE C TTORNEY. 3. APPRMACIN SUBSTANTIAL FORM, AND AUTHORIZE THE CITY MANAGER TO EXECUTE UPON APPROVAL AS TO FORM BY THE CITY ATTORNEY. RECOMMENDATION Staff recommends Council adopt a finding of categorical exemption under CEOA Guidelines, Section 15301 (base of existing facilities), approve the Sublease with Community Media Access Collaborelive (CMAC), and approve Me Agreement for Services between Me City M Fresno and CMAC. The City holds title to Me Historic Bee Building (formerly Me Metropolitan Museum) through the City of Fresno Cultural Ads Properties. There Is approximately 38,000 square feet of leasable space in the five - story building. The Community Made Access Collaborative (CMAC) is requesOng to lease the second Beer of the building. CMAC's operations are consistent with Me used allowed under Me New Market Tax Credits regulations. Clearinghouse CDFI, Me entgy through which the Citys tax credits are processed, has recommended Mat to City lease to this tenant. The complete Council transaction also includes an Agreement for Services between the City and CMAC, whereby this City will receive spec deliverables from CMAC. In total, the City will net approximately $100,000 annually tram CMAC, which will help destroy the City's annual debt service payments on to Historic Bea Building. BACKGROUND On March 18, 2010, the Clty Council approved de use of New Market Tax Credits for refinancing Me HisMdc Bee Building (formerly Me Metropolitan Museum). The Tex Credit transaction requires that the City hold Me property for seven years and Mat Me City make all reasonable attempts to lease space in the building to perishes who meet Tax Credit ellglbllhy cntada. The City has been in negotiations with CMAC about leasing space in the Historic Bee Building- CMAC iss a 501(c)3 non-profit corporation with the misslon to provide access to television broadcast equipment, training, REPORT TO THE CITY COUNCIL Approval of Actions to Sublease Space to CMAC, and Enter Into An Agreement for Services with CMAC June n, 2010 Page 2 and airtime for members of the public CMAC receives Public, Education, Government (PEG) funds Mat are included as part of the Citys cable franchise fee from Comcast Spedrically, the Fresno/Clovis Community Media Authority, a joint powers agency created by Me Cities of Fresno and Clovis to ad as Meir biddy designated PEG provider, has designated CMAC as Me access management organization to manage and administer the PEG access channels, to operate Community Media Cemer(e), and to received PEG funds provided to Me Cities of Fresno and Clovis by state video franchisees, such as Comcast. CMAC has been seeking lease space in which to house I%multi-media production facilities, which are made available to members of the community including schools, public agencies, non�progts, community based organizations, faith institutions, advocacy groups and individuals for the production of programming. CMAC Man transfers Mi final productions to Comcast, which broadcasts the programming through Me designated! PEG channels. This use supports the Ciys desire to catalyze activity in Me Cultural Ads District. There Is a synergy hiscauen Me Public access work Met CMAC will Perform and the public television and ads museum that share Me comer d Ven Ness and Calaveras. These uses draw members of the public from various pads of the community end bring activity and vibrancy throughout the week and weekend. CMAC is interested In leasing the entire second floor of Me Historic Bee Building for office and studio apace. Funding for Me base is stable, as the PEG funds are called for in the State franchise agreements with Comcast and other cable operators. Clearinghouse COFI and U.S. Bank, the other parkas in the City's New Market Tax Credit 0nancing transaction, have both approved the concept of CMAC being an anchoring tenant In the building. The Lease Terms include the following: • Lease to cover Me entire serond floor 15 year tend • $30,000 annual payment to the City, increased by 1% par year beginning in Me eights year of the lease • City to Pay CMAC a ane -time $20,000 tenant improvement allowance • CMAC to complete Its own tenant Improvements • City to provide all utilities, maintenance, and common space security M Important element in MIs laws is that CMAC will be completing all of he awn tenant improvements. The second Hoar requires major alteration to separate it off tram Me thirdl gear above, which shams a grand foyer and staircase with Me second Isom. The heating and air system ducting will likely need to be reconfigured for hose two Boorsas well. If the hvo floors aremt sepemted, the only way to lease the space is to lease it Nether as a two -floor space. The potenllai of any one tenant desiring a space Mat has such an awkward xinfiguretion is lox. If the City were to fund this improvement, It would cost approximately $20,000 - 6000,000. Under Me lease agreement, however, Mese costs will be home by CMAC. liven the fad that More Is only one ele tical meter in the building, Me Gly has agreed to cover the utility mats for Me tenant. The City has required that CMAC pursue energy eificeret lighting and upgrades to its dudes and once equipment. The lease does contain a provision Mal requires Me parges to renegotiate the iility cost portion by the lease if utility costs are found to be excessive after CMAC begins operations. It is mpodant to nota that, as other tenants begin to occupy the building, utility costs will be offset by the additional ease fees Met the City rate. REPORT TO THE CITY COUNCIL Approval of Actions to Sublease Space to CMAC, and Enter Into An Agreement for Services with CMAC June 17, 2010 Page 3 access serwms to the public. Many rates around Catifomia have formed partnerships with their local PEG providers, whereby the PEG provider pays a flat space met to the City, and Me City then creates an Operating Agreement with Me PEG provider to infuse operating money Into the entity, This creates a goad solutlon for Me City and CMAC, since the City has been actively encouraging CMAC to begin operating and offering access to members of the public who might not otherwise have access to madix services. The Agreement for Services will ensure martMe Cily receives specific, valuable services. The structure only works IT both agreements, the Sub Lease Agreement and the Agreement for SeMces, are both approved. CMAC will pay Me City a flat rate of $300,000 annually (Inrreesed by 1% per year beginning in the eighth year of the tease) to lease one floor In the Historic Bee Building. The City will then provide Vol annually bade to CMAC through the Agreement far SeMces. In return for to operating funds. CMAC will provide specific services, as outlined in ffw Agreement. The City will net $100,000 from this transaction annually, minus Me utll8y, mets, and will ba able b apply net proceeds from the $100,000 to Me annual debt service on the building. CEOA Comol' rice The Historic Bee Building is listed on the National Register of Historic Places as well as Fresno's Local Register of Historic Resources and therefore is subject to the proNsion of the CRys Historic Preservation Ordinance (FMC, Chapter 12, AHide 18). The proposed term of the lease Is fifteen years. CMAC intends to use a portion of the space to house its multi -media Production facilities, which ere then made available at members of the communityinducting schools, public agencies, non -profile, community based organizations, faith inatitutions, advocacy groups and Individuals for the Production of programming. The remainder of the apace will be used for administrathre functions supporting Its multi -media operations. The leaseagreement provides for minor alterations to the portion of the building leased to CMAC, Including installation of paNibm, as accommodate CMAC'a use of the space. The lease does not allow for any modifications or alterabo0e to Me exterior of the Historic Bea Building except for me installefion of a communication beacon, approximately 18 inches in heght, on the roof of the building which will not be visible from street level or from adjarant buildings and therefore wilt not Impact Me historic character of Me building. Staff has conformed a preliminary anNronmentai assessment of this project and has determined Mat it falls within the Class 1 Categomal Exemption set form in CEOA Guidelines, section 15301 as this is a proposed lease of space within an existing bulking ownstilleased by Me City, which will not result in the expansion of capacity of the building. Furthermore, none of the exceptions to Categorical Exemptions set forth in Me CECA Guidelines, section 15300.2 apply N this project. REPORT TO THE CITY COUNCIL Approval of Actions to Sublease Space to CMAC, and Enter Into An Agreement for Services MM CMAC June 17, 2010 Page 4 FISCAL IMPACT ay the City $300,000 annually for Me neat 15 years for a sublease of Me second floor of the Building. CMAC will fund any needetl tenant improvements for the space, which are anticipated in$20,000 and $ 400,000. The City will provide utilifies and maintenance services for Me rough me Agreement for SeMoss, the City will provide $20,000 annually to CMAC for speclic as defined in the Agreement Not including customary and usual building expenses, Me City Will 1 annually tram CMAC through the transactions. These funds will offset the annual debt seMce Me bullding. 1) Lease Agreement for 1555 Van New Avenue 2) Agreement for Services between Me City of Fresno and Community Media Access Collaborative