CITY COUNCIL AGENDA REPORT
DEPARTMENT: City Manager’s Office MEETING DATE: October 6, 2015
PREPARED BY: Caroline D. Velarde, Management Analyst AGENDA LOCATION: AR-1
TITLE: Approval of a Memorandum of Understanding with Giggle Fiber, LLC
OBJECTIVE: To approve a Memorandum of Understanding (MOU) with Giggle Fiber, LLC (Giggle) regarding the continuing provision of data services in the City
BACKGROUND: In early 2014, Giggle established itself as a local internet and telephone service provider serving the greater Monrovia and Arcadia service areas by acquiring a portion of the business being operated by the now defunct cable television firm, Champion Broadband Communications (Champion). Later, in April 2015, when Champion shut down its business, the owners of Giggle acquired the assets and network that belonged to the former cable television provider.
Since that time, the City and Giggle have been working cooperatively to better determine the regulatory framework under which the relationship would be governed. Under their current service offerings, Giggle providers customers not only with internet service speeds of up to 425 mbps, but also offers an internet / basic television service offering called GiggleEXTRA, along with a bundled internet / satellite television offerings with DirectTV and Dish Network.
As our discussion have progressed, the City and Giggle have developed an overall MOU (Attachment A) for City Council consideration that creates a stronger partnership to address a variety of the financial, operational, and regulatory matters that currently exist.
ANALYSIS: The MOU that has been developed include the following key components:
. City recognizes Giggle Fiber as an authorized provider in Monrovia.
. Giggle Fiber will be in compliance with all applicable state, federal, and local law, including the Monrovia Municipal Code.
. Giggle Fiber will pay the City 5% of revenues collected for residential, internet-only customers.
. Giggle Fiber will pay the City 6% of revenues collected for GiggleEXTRA customers.
. Giggle Fiber will permit the City’s Finance Department to examine and/or audit Giggle’s customer payment records and/or gross revenue records at City’s designation.
. Giggle Fiber and the City would develop a listing of upgrades and potential expansion to the City’s data and internet systems acceptable to both the City and Giggle Fiber.
AR-1 . Giggle Fiber would contribute the former Altrio/Champion video and audio equipment utilized by KGEM to broadcast the television feed of the Monrovia Unified School District and/or Monrovia City Council meetings.
. Giggle Fiber will deliver all KGEM content continuously to GiggleEXTRA customers.
ENVIRONMENTAL IMPACT: There are no environmental impacts associated with this action.
FISCAL IMPACT: Approval of this MOU will result in an estimated $50,000 - $60,000 in annual revenues to the City. In addition, pursuant to other current contract arrangements (Attachment B), the City will be required to pass through 30% of any revenues received pursuant to this MOU with Giggle on to KGEM. Therefore, the total estimated funding split between City and KGEM are anticipated to be as follows:
. City: $35,000 - $42,000 / year . KGEM: $15,000 - $18,000 / year
OPTIONS: The following options have been developed for City Council consideration:
1. Approve the MOU between the City and Giggle.
2. Do not approve the proposed MOU and provide staff with additional direction.
RECOMMENDATION: Staff recommends that the City Council select Option 1, thereby approving the MOU between the City and Giggle.
COUNCIL ACTION REQUIRED: If the City Council concurs, the appropriate action would be a motion to approve the Memorandum of Understanding between the City of Monrovia and Giggle Fiber, LLC, and authorize the City Manager to execute the necessary documents in a form approved by the City Attorney. MEMORANDUM OF UNDERSTANDING
between
the City of Monrovia and Giggle Fiber, LLC regarding the continuing provision of data services in the City.
This Memorandum of Understanding (“MOU”) is dated October 6, 2015, and is between the City of Monrovia, a California municipal corporation (“City”) and Giggle Fiber, LLC, a limited liability company (“Giggle”).
A. PURPOSE:
The purpose of this MOU is to formalize the terms under which Giggle will continue to provide wired fiber-based data services through facilities that were previously installed in the City’s right-of-way pursuant to that certain franchise agreement by and between the City and Altrio Communications, Inc (“Franchise”). This MOU is not intended to be a transfer or assignment of the Franchise.
This MOU acknowledges and documents a circumstance not contemplated by the Franchise: the decision of Giggle to acquire the facilities and continue to provide wired fiber-based data services on a specified basis and to be compliant with all laws governing the proposed service. This MOU further documents that the City is not in any way responsible for any aspect of the management and operation of Giggle’s services, but rather consents to, provides terms for, and establishes the City’s commitment to supporting Giggle’s efforts to make those services available through existing facilities, reasonable extensions to requesting new customers, and for the residents of Monrovia to utilize if they choose to use them.
B. GIGGLE SHALL:
In consideration for the City consenting to and supporting Giggle’s continued provision of wired fiber-based data services in Monrovia on a non-exclusive basis, Giggle shall:
1. Continue to provide wired fiber-based data services to customers in Monrovia, on a non-exclusive basis, through Giggle’s facilities that exist in Monrovia’s right-of-way.
2. Operate in compliance with applicable state, federal and local law including, without limitation, the Monrovia Municipal Code. Parties agree that should this MOU be determined by a state or federal authority to be in conflict with applicable law, that the provisions in conflict will be immediately revised or deleted. Giggle shall obtain, at its own expense, a City business license, as 1 1858253.1
well as all necessary planning and public works permits prior to performing any work within the City’s right-of-way or on private property, if it has the legal authority to perform such work. No newly installed poles are permitted by this MOU.
3. Effective on the first calendar day following Giggle’s first full normal billing cycle following the date of approval of this MOU by the City Council, and monthly thereafter, Giggle shall pay to the City a fee equal to five percent (5%) of all gross revenues collected for residential internet services (non “GiggleEXTRA” customers). Such fee shall be due on the first day of each calendar month and shall be considered delinquent if not paid to the City by the tenth (10th) calendar day of the month when due. For example, the fees collected by Giggle in May, would be payable to the City July 1.
4. Effective on the first calendar day following Giggle’s first full normal billing cycle following the date of approval of this MOU by the City Council, and monthly thereafter, Giggle shall pay to the City a fee equal to six percent (6%) of all gross revenues collected for residential internet services from “GiggleEXTRA” customers. Such fee shall be due on the first day of each calendar month and shall be considered delinquent if not paid to the City by the tenth (10th) calendar day of the month when due. For example, the fees collected by Giggle in May would be payable to the City July 1.
5. Maintain complete customer payment and other gross revenue records in a form that complies with generally accepted accounting principles for a period of at least three (3) consecutive calendar years on a rolling basis.
6. Permit the City’s Finance Department to examine and/or audit Giggle’s customer payment records and/or gross revenue records, at the City’s designation, within normal business hours following reasonable written notice to Giggle.
7. Provide reports to the City’s Finance Department, not less frequently than annually, documenting gross revenues received by Giggle for each category of service and reconciling with payments made to the City.
8. In consultation with the City, develop a listing of upgrades and potential expansion to the City’s data and internet systems acceptable to both the CITY and Giggle.
9. Contribute the former Altrio/Champion video and audio equipment utilized by KGEM to broadcast their television feed of School District and/or City Council meetings.
10. Deliver all KGEM content continuously to GiggleEXTRA customers.
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11. Promptly respond to and remedy any complaint regarding service received by the City and referred to Giggle, and provide a written notification of the action taken to the City within seven (7) business days of resolution.
12. Meet periodically with the City Manager or his/her designee to discuss and coordinate terms of service, improvement of technical performance and connectivity and other areas of mutual interest.
13. Pay a delinquency penalty of one percent (1%) of total fees delinquent per calendar month or portion thereof that a delinquency exists.
C. CITY SHALL:
1. Consent to Giggle’s provision of wired fiber-based data services to customers in Monrovia, on a non-exclusive basis, through Giggle’s facilities that exist in Monrovia’s right-of-way.
2. Commit to supporting Giggle’s efforts to provide wired fiber-based data services to customers in Monrovia, on a non-exclusive basis, through Giggle’s facilities that exist in Monrovia’s right-of-way.
3. Should Giggle need to obtain any State, federal or local permits to operate, City commits to supporting Giggle’s procurement of those permits.
4. Reasonably cooperate with Giggle as Giggle performs its obligations under this MOU.
D. INDEMNIFICATION
To the full extent permitted by law, Giggle shall defend, indemnify, save, and hold harmless the City from any and all actions, suits, proceedings, claims, demands, losses, damages, penalties, obligations, liabilities, costs, and expenses, of any type or name whatsoever including legal costs and attorney fees, that may be asserted or claimed by any person firm, entity, corporation, political subdivision, state or federal agency, or other organization or person, whether public or private, for injury or death of any person or persons, for damage to property, including property owned by the City of Monrovia or any of its members, for contract damages, or for any other damage or remedy, arising out of the execution terms or enforcement of this MOU or from any action, failure to act, errors and omissions committed by Giggle, its officers, employees, subcontractors, and agents, in connection with any of said claims, damages, penalties, obligations or liabilities, including reasonable attorney’s fees incurred in connection therewith through counsel of the City’s choosing, regardless of whether suit is actually filed.
Giggle and the City acknowledge that the present State and Federal regulatory requirements for data only network companies are unsettled. It is 3 1858253.1
possible that this MOU may be challenged and determined to be without standing. Giggle and the City agree to mutually consult in that circumstance and determine the best course of action. Notwithstanding the above indemnification clause, Giggle is not providing indemnification for any cost or continuing obligation should this MOU be determined to be in conflict with any law or regulation.
E. MUTUAL AGREEMENTS:
1. Giggle, in providing the services discussed herein, is acting as an independent entity, and is not an agent, employee or contractor of the City. The execution of this MOU is not, and shall not be represented as, a City endorsement of Giggle or the services Giggle provides.
2. The consent conveyed to Giggle in this MOU is non-exclusive and in no way restricts the City entering into similar agreements with other public or private entities, organizations, and individuals.
3. Giggle shall not transfer the consent granted by this MOU, in whole or in part, to any other entity without the express written consent of the City, which shall not be unreasonably withheld provided that, at least thirty (30) calendar days in advance of any such transfer, Giggle shall have delivered to the City a written acceptance of the terms of this MOU by the proposed transferee and a specific description of the transferee’s technical and financial capability to provide the services and comply with Giggle’s obligations under this MOU.
4. In consideration of the foregoing, Giggle hereby waives, holds harmless and forever discharges the City, its officers, agents and employees from any claim, damages, or liability in any form arising out of City’s performance of, or failure to perform, its commitments under this MOU or the Franchise, to the extent the same is in effect. City and Giggle specifically acknowledge that in the event of any alleged breach of this MOU by the City, the remedy of specific performance shall be Giggle’s only remedy against the City, and that the City would not have entered into this MOU without Giggle’s specific waiver of monetary damages from the City.
5. This MOU represents the entire integrated agreement by and between the parties as to the City’s consent for Giggle to provide wired fiber-based data services in the City and no other agreement, promise, contract or commitment of either party shall be valid and binding unless incorporated into this MOU by written amendment executed by each party hereto.
6. Nothing in this MOU shall obligate the City to obligate or expend funds or other resources to this project.
7. This MOU shall be interpreted according to the laws of the State of California as if jointly drafted by the parties. 4 1858253.1
8. Should either party be forced to institute legal proceedings to enforce any provision of this MOU the prevailing party in such litigation, as designated by a court of competent jurisdiction, shall recover its cost of suit including reasonable attorneys’ fees.
9. Giggle shall procure and at all times during the term of this MOU carry, maintain, and keep in full force and effect, insurance as follows:
a. Commercial General Liability Insurance at least as broad as Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001) and with a minimum limit of One Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage and either a general aggregate limit that applies separately per project and location or a general aggregate limit of Two Million Dollars ($2,000,000) per policy.
b. Workers’ Compensation Insurance as required by the State of California.
c. Automobile Liability Insurance for any owned, non-owned or hired vehicle used in connection with the performance of this MOU with a combined single limit of Two Million Dollars ($2,000,000) per accident for bodily injury and property damage. If Giggle does not use any owned, non-owned or hired vehicles in the performance of services under this Agreement, Giggle shall obtain a non-owned auto endorsement to the Commercial General Liability policy required under Subparagraph A. 1) of this Section 12.
d. The insurance policies required under this Section shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest edition of the A.M. Best Insurance Rating Guide. Self-insurance shall not be considered to comply with the insurance requirements under this Section. The commercial general policy shall contain an endorsement naming the City, its officers, employees, agents and volunteers as additional insureds. The insurance policies required under this Section shall apply on a primary non-contributing basis in relation to any other insurance or self-insurance available to City. Any insurance or self-insurance maintained by City, its officers, employees, agents or volunteers, shall be in excess of Giggle’s insurance and shall not contribute with it. Giggle shall not cancel, reduce or otherwise modify the insurance policies required by this Section during the term of this MOU. The commercial general policy required under this MOU shall be endorsed to state that should the issuing insurer cancel the policy before the expiration
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date, the issuing insurer will endeavor to mail thirty (30) days’ prior written notice to City.
e. Within ten (10) business days following execution of this MOU, Giggle shall furnish City’s Risk Manager with a certificate or certificates of insurance and all original endorsements, including amendatory endorsements, evidencing and affecting the coverage required under this MOU. The endorsements are subject to City’s approval. City may require Giggle to provide complete, certified copies of all required insurance policies to City. Giggle shall maintain current endorsements on file with City’s Risk Manager and shall provide proof to City’s Risk Manager that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage, at least two (2) weeks prior to the expiration of the coverage.
10. Notices required or relating to this Contract may be sent by first class mail postage prepaid, personal delivery or by electronic mail as follows:
If to Giggle, at the following street and/or e-mail address:
Dave Haverkate and Mark Haverkate Giggle Fiber, LLC 911 S. Primrose, Suite E Monrovia, CA 91016 email: [email protected] / [email protected]
If to City, at the following street and/or e-mail address:
Oliver Chi City Manager City of Monrovia 415 South Ivy Avenue Monrovia, CA 91016 e-mail: [email protected]
If delivered personally or by electronic mail, the notice shall be deemed delivered on the date it is actually left at the designated address or is sent electronically. If delivered by first class mail, the notice shall be deemed delivered on the fourth business day after it is deposited in the mail. Any change in the physical or electronic mail address for notices must be given in writing.
11. The invalidity in whole or in part of any provision of this MOU shall not void or affect the validity of any other provision.
12. This MOU shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law rules. 6 1858253.1
IN WITNESS WHEREOF, the Parties have caused this MOU to be executed by their duly authorized representatives.
CITY OF MONROVIA
DATE: BY:
Oliver Chi, City Manager City of Monrovia
ATTEST: APPROVED AS TO FORM:
Alice B. Atkins, CMC, City Clerk Craig A. Steele, City Attorney City of Monrovia City of Monrovia
GIGGLE FIBER
DATE: BY:
Dave Haverkate, Chief Executive Officer Giggle Fiber
BY:
______Mark Haverkate, Chief Marketing Officer Giggle Fiber
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RENEWAL OF AGREEMENT BETWEEN CITY OF MONROVIA and COMMUNITY MEDIA OF THE FOOTHILLS
AGREEMENT
This Renewal of Agreement (hereafter the "Agreement") is made this 4th day of August, 2015, by and between the City of Monrovia, a municipal corporation ("City") and Community Media of the Foothills, a California nonprofit corporation ("CMF"), who agree as follows:
RECITALS
1. City desires to provide support for the use of cable access channels provided pursuant to 47 USC Section 531 of the Cable Communication Policy Act of 1934 as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection Act of 1992 and the Telecommunications Act of 1996 (the Acts).
2. The Monrovia Municipal Code provides that City will designate a nonprofit organization to serve as the access management entity to provide public, educational, and government access programming services and programming to the residents of the City.
3. The State has granted franchises to Time Warner Cable and AT&T to operate cable television systems in the City.
4. The State franchises provide that certain television channel capacity be provided for public, educational, and government access.
5. Both the State franchises and Monrovia Ordinance 2007-07, provide that certain payments shall be made by cable service providers for capital equipment and facilities to support the public, educational, and government access channels.
6. City has determined that it will provide support for public, educational, and government access through the dedication of its franchise fees to said purposes as set forth herein.
7. CMF, being the nonprofit access entity designated by City, has provided access management services to City since February 1996, and has indicated its continuing interest in serving the public by providing public, educational, and government access programming and services.
8. CMF is committed to become a broad-based membership organization representing public access viewers, users, producers, and supporters.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties agree as follows:
Section 1. Scope of Services. In exchange for the funding provided by City to CMF, pursuant to this Agreement, CMF shall provide the following services:
A. Operate Public. Educational and Government Access Cable Channels).Operate the public, educational, government access cable channel for public/community access programming purposes in a manner which is consistent with the principles set forth in Monrovia Ordinance No. 96-01, with the primary purpose being to administer, coordinate, and assist government access, education access and non-discriminatory public access.
CMF Agreement Rev: 8/4/2015 Page 1
B. Operate a Community Access Studio. Manage a video production facility and equipment that shall be available for public use at such hours and times as are determined by CMF. In any event, the Community Access Studio shall be open not fewer than forty (40) hours per week unless there is a holiday and except as otherwise provided. In the event that CMF’s revenues are not sufficient to employ sufficient staff to keep the Community Access Studio open forty hours per week, CMF shall keep the Community Access Studio open for as many hours as staffing permits. Volunteers may not be counted as staff in violation of California wage and hour laws. Any change in the hours of operation shall be posted twenty-four (24) hours in advance of such change and when possible prior notification will be listed in the monthly program guide. CMF may choose to close the Community Access Studio for up to two (2) weeks each year.
Access to equipment and the Community Access Studio shall be open to all those who satisfactorily complete training class(es) provided by CMF or who receive a certification from the CMF, identifying said user(s) as having satisfied training requirements through means other than CMF training classes, subject to such reasonable restrictions and limitations as CMF adopts.
C. Provide Equal Access. Provide access to the use of the equipment, Community Access Studio, channels, and services provided hereunder on a non-discriminatory basis to all members of the community for non-commercial programming purposes, whether individuals, groups, businesses, or organizations, on a first-come, first-serve non-discriminatory basis, pursuant to operating rules promulgated by CMF and consistent with the principles set forth in City of Monrovia Ordinance No. 96-01.
D. Develop Operating Policies and Procedures. Develop reasonable policies, procedures and guidelines for the use and operation of equipment, the Community Access Studio, and channel(s) and make such policies, procedures and guidelines available to the public upon request. CMF shall submit all changes, amendments or alterations of policies, procedures and guidelines to City for review and comment.
E. Compliance With Laws, Rules and Regulations. Administer the public, educational, and government access channel(s) and facilities in compliance with applicable laws, rules, regulations, the Monrovia Cable Franchise Ordinance, and CMF's Bylaws.
F. Training. Train Monrovia residents, groups, businesses, and organizations, and City and school employees in the techniques of video production, and provide technical advice in the execution of productions. Such training shall be at such times and upon such terms as CMF reasonably determines.
G. Plavback/Cablecast. Provide for the playback/cablecasting of programs on public, educational and government access channel(s). CMF shall cablecast an average of twenty (20) hours of local origination, replayed and outside programming per week.
H. Public Service Announcements (PSAs) and Programs Produced for Government Access. Provide twelve (12) PSAs and twelve (12) CMF produced programs per fiscal year for various departments within the City. Such programs shall be at City's request upon reasonable notice complying with CMF rules and regulations and subject to CMF prior commitments. PSAs shall be limited to ten (10) minutes in length. Program requests are not cumulative from year to year. CMF shall not be obligated to provide more than sixty (60) hours of production time to comply with the obligation of this section.
I. Telecast of City Council and Planning Commission Meetings. Provide staff to telecast two (2) Council meetings and one (1) Planning Commission meeting per month. As additional compensation for this service City shall pay CMF an additional $200/meeting, to be paid quarterly by City upon receiving invoice from CMF. Additional meetings and/or events may be requested by City, and subject to CMF's availability, may be telecast by CMF for an additional fee agreed upon between CMF Agreement Rev: 8/4/2015 Page 2 the parties. CMF shall archive past Council and Planning Commission meetings online in a viewer friendly format. For several years, CMF has provided live online broadcast of City of Monrovia City Council and Planning Commission meetings and has absorbed the cost but can no longer do so. CMF will continue to provide live online broadcast of City of Monrovia City Council and Planning Commission meetings at its cost of $250 per month to be paid quarterly by City upon receiving invoice from CMF. The amounts set forth in this Section are in addition to the funding set forth in Section 15 of this Agreement.
J. Record and ProduceCity Special Events. Provide camera operators and production for up to four (4) special council news conferences per year. Such programs shall be at City's request upon reasonable notice complying with CMF rules and regulations and subject to CMF prior commitments. Program requests are not cumulative from year to year.
K. Special Needs Groups. To the extent that it is possible without incurring substantial expense, support special needs groups, including but not limited to the hearing impaired, in program production through training and other means.
L. Promotion. Promote the use and benefit of the public, educational and government access channel(s) and Community Access Studio to cable subscribers, the public, access users, Time Warner Cable and AT&T. The details of such promotion shall be at the sole discretion of CMF.
M. Performance Review. Upon City's request, CMF shall contract with an entity expert in access from outside the Monrovia community to review CMF's performance. Such performance review shall include an opportunity for access users and cable subscribers to provide input. The performance review will only be done at City's request, and all costs associated with the performance review shall be paid for by CMF provided such costs do not exceed $2,500.00.
N. Other Activities. Undertake other public, educational and government access programming activities and services as deemed appropriate by CMF, consistent with the obligation to facilitate and promote access programming and provide non-discriminatory access.
O. Programming Guide. CMF shall make available to the public a Programming Guide for public, educational and government access. The Programming Guide shall be made available no later than a week prior to the upcoming month. Copies of the Programming Guide shall be made available at all City facilities, the Monrovia Chamber of Commerce and the Monrovia Unified School District office. An online programming schedule may be substituted for the printed Guide.
P. Complaint Management. CMF shall develop and implement a method of documenting and responding to complaints regarding CMF operations, programming and any other issues relating to public, educational and government access. Complaint documentation, if any, should be presented to City Liaison on a quarterly basis and CMF should be prepared to present to the City Council a report regarding any such complaint documentation upon request of any City Council Member.
Section 2. Channels Open to Public. CMF agrees to keep the access channel(s) open to all potential users in the manner prescribed by FCC regulations, the Act, and other laws. City shall not have the authority to control the content of programming placed on the public access channel(s), nor shall City take any steps designed to control the content of such programming. Nothing herein shall prevent City from producing or sponsoring programming, underwriting programming, or engaging in activities designed to promote production of certain types of programming or use by targeted groups as consistent with applicable laws and rules for use of channels. Subject to review by City, CMF may promulgate and enforce policies and procedures that are designed to promote local use of the channel(s) and make the programming accessible to the viewing public in a manner consistent with applicable laws.
Section 3. Indemnification. CMF shall indemnify, defend, and hold harmless City, its officers, agents, and employees, and volunteers from and against any and all claims, suits, actions, causes of actions, CMF Agreement Rev: 8/4/2015 Page 3 losses, damage, or liabilities of any kind, nature or description, including payment of litigation costs and attorneys' fees to counsel of City's choice, brought by any person or persons for or on account of any loss, damage, death or injury to person, property or any other interest, tangible or intangible, sustained by or accruing to any person or persons, however the same may be caused, directly or indirectly arising or resulting from any alleged acts or omission of CMF, its officers, employees, agents, volunteers or subcontractors arising out of or resulting from the performance of this Agreement.
CMF shall indemnity and hold harmless City, its officers, agents, employees and volunteers from and against any and all claims or other injury, including costs of litigation and attorney's fees to counsel of City's choice, arising from or in connection with claims or loss or damage to person or property arising out of the failure to comply with any applicable laws, rules, regulations or other requirements of local, state or federal authorities, for claims of libel, slander, invasion of privacy, or infringement of common law or statutory copyright, for breach of contract or other injury or damage in law or at equity which claim, directly or indirectly, results from CMF use of channels, funds, equipment, facilities or staff granted under this Agreement.
Section 4. Copyright Clearance. Before cablecasting video transmissions, CMF shall require all users to agree in writing that they have made all legally necessary and appropriate arrangements to obtain all rights to all material cablecast and clearances from broadcast stations, networks, sponsors, music licensing organizations representatives, and without limitation from the foregoing, any and all other persons as may be necessary to transmit its or their program material over CMF authorized channels. CMF shall maintain for the applicable statute of limitations for City's inspection, upon reasonable notice by City, copies of all such user agreements. CMF may conclusively rely upon such user agreement and is under no obligation to investigate or verify any of the information contained therein.
Section 5. Copyright and Ownership. CMF shall own the copyright of any programs that it may choose from time to time to produce. Copyright of programming produced by a member of the public shall be held by the person(s) who produces that programming, subject to the grant of license to CMF.
Section 6. Distribution Rights.
A. CMF may require that producers of programs using the equipment, Community Access Studio or staff of CMF grant to CMF a nonexclusive license to cablecast such program on channels operated by CMF, and to copy, perform and/or prepare derivative works based upon the program for educational, training and/or promotional purposes.
B. CMF may require that programs produced using CMF equipment, Community Access Studio or staff be cablecast at least once on channels operated by CMF.
C. CMF may require that programs produced using CMF equipment, Community Access Studio or staff not be used for commercial purposes, or if incidentally used for commercial purposes, that CMF be paid royalties for such commercial purposes.
D. At least at the beginning and the end of each day that video programming is cablecast on the channel(s) whose use is authorized by this Agreement, CMF shall display a credit stating "Partial funding for the operation of this channel is provided by the City of Monrovia." Such credit shall also state that opinions expressed in programming on the channel(s) are the sole responsibility of the program producers.
Section 7. Equipment and Facilities.
A. CMF shall be responsible for maintenance of all equipment and facilities owned, leased or loaned to it under this Agreement or purchased with funds provided pursuant to this Agreement. A complete inventory of equipment purchased with such funds will be kept and made available to the City upon request.
CMF Agreement Rev: 8/4/2015 Page 4 B. CMF shall own all equipment and facilities acquired by it and purchased with funds received pursuant to this Agreement, except that upon termination or non-renewal of this Agreement all such equipment or facilities purchased, fully or partially, with funds received pursuant to this Agreement shall be transferred to a non-profit entity designated by City. City shall have no interest in and shall make no claim to any equipment, facilities, deposit accounts, or any other assets or property, real or personal, that CMF acquires with funds that are not directly traceable to this Agreement or the proceeds thereof.
C Upon the dissolution of CMF, CMF shall, subject to the approval of City, transfer all assets of CMF representing City funded equipment and facilities, and/or the proceeds of either to City, or at City's option, to such organization or organizations designated by City to manage access. Any such organization designated by City shall at the time qualify as a tax exempt organization(s) underSection 501 (c)(3) of the Internal Revenue Code of 1986 -(or the corresponding provisions of any future United States Internal Revenue Code).
Section 8. Insurance Requirements. CMF shall procure and maintain for the duration of the Agreement the policies of insurance listed below for its obligations hereunder.
A. Minimum Scope of insurance. Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 20 10 07 04).
2. Insurance Services Office form number CA 0001 (01/87) covering Automobile Liability, code 1 (any auto).
3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
4. Errors and Omissions liability insurance appropriate to CMF profession.
B. Minimum Limits of Insurance. CMF shall maintain limits no less than.
1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
3. Employer's Liability: $1,000,000 per accident for bodily injury or disease.
4. Errors and Omissions Liability: $1,000,000 per occurrence.
C. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by City prior to the implementation of such deductible or retention. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its officers, officials, employees and volunteers; CMF shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration and defense expenses.
D. Other Insurance Provisions. The commercial general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
1. City, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of work or operations performed by or on behalf of CMF; or automobiles CMF Agreement Rev: 8/4/2015 Page 5 owned, leased, hired or borrowed by CMF.
2. For any claims related to this Agreement, CMF's insurance coverage shall be primary insurance as respects City, its officers, officials, employees or volunteers. Any coverage maintained by City shall be excess of CMF's insurance and shall not contribute with it.
3. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to City.
E. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A-:VII.
F. Verification of Coverage. CMF shall furnish City with original certificates and amendatory endorsements affecting coverage required by this clause. The endorsements should be on forms provided by City. If the endorsements are provided on other than City's forms, such endorsements shall be in a form acceptable to City Attorney and shall conform to City requirements set forth in this Section. All certificates and endorsements are to be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications at any time.
G. Equipment Insurance. Insurance shall be maintained on all equipment and facilities, including fixtures, funded in whole or in part under this Agreement at replacement cost. The insurance shall include, at a minimum, coverage against loss or damage beyond the user's control, theft, fire or natural catastrophe. City shall be shown as lien holder on all policies.
H. Cable Caster's Errors and Omission Insurance. Insurance shall be maintained to cover the content of productions which are cablecast on the access channel in, at minimum, the following areas: libel and slander; copyright or trademark infringement; infliction of emotional distress, invasion of privacy; plagiarism; misuse of musical or literary materials. This policy shall not be required to cover individual access producers.
Section 9. Non-discrimination in Employment and Service. CMF shall not discriminate against any person, employee, or applicant for employment or independent contractor or volunteer or producer in accordance with California and Federal law on the basis of race, color, national origin, religion or creed, gender (including pregnancy, childbirth, and related medical conditions), physical or mental disability, age, genetic information, marital status, sexual orientation or identity (including cisgender, lesbian, gay, bi-sexual, transsexual, intersexual), AIDS.HIV status, medical condition, political activities or affiliations, military or veteran status, citizenship status, status as a victim of domestic violence, assault or stalking, or genetic information. Nor shall CMF discriminate in the delivery of service upon any such basis.
Section 10. Independent Contractor. It is understood and agreed that CMF is an independent contractor and that no relationship of principal/agent or employer/employee exists between City and CMF. If in the performance of this Agreement any third persons are employed by CMF, such persons shall be entirely and exclusively under the control, direction and supervision of CMF. All terms of employment, including hours, wages, working conditions, discipline, hiring and discharging or any other term of employment shall be determined by CMF and City shall have no right or authority over such persons or terms of employment.
Section 11. Membership and Board Development. CMF shall have adopt a policy for the training of all Board Members on the Bylaws, policies and procedures, and meeting management adopted by CMF and the Brown Act of the State of California that will insure that anytime a Board vacancy occurs and/or a new Member joins the Board, adequate training will be provided. Board Members shall follow the Bylaws and policies and procedures adopted by CMF and comply with the Brown Act.
Section 12. Assignment and Subletting. Neither this Agreement nor any interest herein shall be CMF Agreement Rev: 8/4/2015 Page 6 assigned or transferred by CMF except as expressly authorized in writing by City.
Section 13. Annual Report. Prior to September 15 of each year, CMF shall submit to City an annual report for the preceding fiscal year (July 1-June 30). This report shall contain, at a minimum, the following information:
A. Statistics on programming and services provided;
B. Current and complete listing of the names of CMF's Board of Directors and their terms;
C. Year-end financial statements audited by an independent certified public accountant;
D. A log containing downtime for live broadcasts of City Council and Planning Commission meetings;
E. Statement of compliance with the program requirements listed in Section 1 of this Agreement;
F. Copies of any revised versions of the Bylaws andpolicies and procedures.
Section 14. Records. Fiscal Audit.
A. CMF shall maintain all necessary books and records, in accordance with generally accepted accounting principles, for a period of not less than three (3) years following the expiration of this Agreement or such longer period as provided by law.
B. Upon reasonable request from City, CMF shall, at any time during normal business hours, make available all of its records with respect to all matters covered by this Agreement
C. CMF shall annually prepare or have prepared and submit to City a fiscal audit by a certified public accountant
Section 15. Funding. City agrees to make funds and resources available to CMF as follows:
A. Time Warner Cable, the successor-in-interest to Champion Broadband known as Giggle Fiber, LLC, and AT&T have dedicated certain channel capacity to public, educational and government access use. City designates CMF as manager and operator of the channel capacity for public, educational and government access programming purposes, and shall notify all video providers of such designation.
B. City shall provide to CMF the one percent (1%) of gross revenue PEG fee paid to City by Time Warner Cable. City designates CMF as the proper recipient of the amount required to be paid by Time Warner Cable pursuant to State video franchising law and Monrovia Ordinance 2007-07.
C. City shall provide to CMF the one percent (1%) of gross revenue PEG fee paid to City by AT&T. City designates CMF as the proper recipient of the amount required to be paid by AT&T pursuant to State video franchising law and Monrovia Ordinance 2007-07.
D. City shall provide CMF an amount equal to one-fifth of the franchise fees paid to the City by Time Warner Cable. City designates CMF as the proper recipient of the amount required to be paid by Time Warner Cable pursuant to State video franchising law and Monrovia Ordinance 2007-07.
E. City shall also provide CMF an amount equal to one-fifth of the franchise fees paid to City by AT&T. City designates CMF as the proper recipient of the amount required to be paid by AT&T pursuant to State video franchising law and Monrovia Ordinance 2007-07.
F. City shall provide CMF an annual amount equal to $0.13 per Time Warner Cable subscriber per CMF Agreement Rev: 8/4/2015 Page 7 month. City designates CMF as the proper recipient of the amount required to be paid by Time Warner Cable pursuant to State video franchising law and Monrovia Ordinance 2007-07.
G. City shall provide CMF an annual amount equal to $0.13 per AT&T subscriber per month. City designates CMF as the proper recipient of the amount required to be paid by AT&T pursuant to State video franchising law and Monrovia Ordinance 2007-07.
H. Should the City and Giggle Fiber, LLC execute a Memorandum of Understanding Agreement which calls for Giggle Fiber, LLC to pay any type of fee to the City, upon execution of such a Memorandum of Understanding Agreement, the City and CMF agree to the following:
1. City shall provide CMF an annual amount equal to 30% of total revenues collected from Giggle Fiber, LLC.
2. City shall contract with Giggle Fiber, LLC to provide that Giggle Fiber, LLC shall manage ancillary issues related to CMF including, but not limited to, providing the highest possible bandwidth to the Community Access Studio so that CMF can provide the City of Monrovia, the Monrovia Unified School District, and all those who choose to have Internet access to view programming on all CMF channels, including but not limited to, KGEM, KGOV, and KMAC.
3. City shall contract with Giggle Fiber, LLC to provide that Giggle Fiber, LLC shall maintain all cable equipment and fiber optic feeds or other live feeds to and from the Community Access Studio serving or benefiting the City of Monrovia, the Monrovia Unified School District, and any other municipal entity served by Giggle Fiber, LLC.
4.. CMF will allow their content to be broadcast to Giggle Fiber, LLC customers.
Section 16. Annual Plan and Budget.
A. On or before April 15 of each year in which this Agreement is in effect, City shall provide CMF with an estimate of the funds (PEG fees plus one-fifth [1/5] of the franchise fees plus all amounts due from City’s agreement with Giggle Fiber LLC) that will be available to CMF for the upcoming fiscal year. As used herein, the fiscal year begins on July 1 and ends on June 30.
B. On or before March 31 of each year in which this Agreement is in effect, CMF shall provide to City an Access Activities Plan and Budget outlining activities and programs planned for the following fiscal year with funds and channel(s) received from City. Such plan shall contain: (1) a statement of anticipated number of hours of local original programming; (2) training classes to be offered and frequency of classes; (3) other access activities planned by CMF; and (4) an operating and capital equipment and facilities budget.
Section 17. Expenditure of Funds. CMF shall spend funds received from City for the purposes listed in its Annual Access Activities Plan and Budget and Section 1., Scope of Services of the Agreement except as otherwise agreed to between City and CMF during the term of this Agreement. Funds not expended in the any given year covered by the Annual Budget and Activities Plan shall be carried over into succeeding years during the term of this Agreement and any renewal or subsequent agreement between City and CMF. Upon termination or non-renewal of this Agreement all funds of any kind received from City and not expended by CMF, including expenditures for the payment of any outstanding financial obligation of whatever kind, shall be disbursed in accordance with the terms and provisions of Section 7. CMF shall provide for such fiscal controls and accounting procedures reasonably deemed necessary by City to assure proper disbursement and accounting for funds received from City.
Section 18. Receipt of Approved Funding. For each year in which CMF has submitted the Annual Access Activities Plan and Budget to City as required under Section 16 of this Agreement, City shall make semiannual payments to CMF at the first accounts payable check run after receipt of the franchise fee payments from Time Warner Cable and AT&T. The payments to CMF shall reflect an amount equal to CMF Agreement Rev: 8/4/2015 Page 8 one-fifth of the franchise fee payment received from each of the two firms, equal to a franchise fee of one percent (1%) on the same basis as the franchise fee is calculated.
PEG fees of one percent (1%) of gross annual revenue and per-subscriber fees of 13-cents per month paid by Time Warner Cable and AT&T shall also be paid semi-annually to CMF at the first accounts payable check run after the receipt of the fee payments from each of the firms.
City shall provide CMF an annual amount equal to 30% of total revenues collected from Giggle Fiber LLC payable semi-annually to CMF at the first accounts payable check run after the receipt of the fee payments from Giggle Fiber LLC.
Section 19. Funding From Other Sources. CMF may, during the course of this Agreement, receive supplemental funds from other sources, including, but not limited to fundraising activities. City has no interest and shall claim no interest in or to any funds, equipment, facilities, fixtures, deposit accounts, or any other property, real or personal, nor the proceeds thereof, acquired by CMF with funds not directly traceable to City.
Section 20. Term of Agreement.This Agreement shall be for a period of one (1) year commencing on July 1, 2015 and ending on June 30, 2016 unless terminated earlier, as provided in this Agreement. This Agreement may be extended, by mutual agreement of City and CMF, in writing, for additional period of up to two (2) years in accordance with Section 22 of this Agreement.
Section 21. Termination of Agreement: Transfer of Assets.
A. City may terminate this Agreement at any time, at the expiration of its term, or any extension thereof with or without cause. City will provide thirty (30) days notice to CMF of a public hearing before the Council to consider termination.
B. Upon termination of this Agreement, CMF shall immediately transfer to a non-profit entity named by City all equipment, real property, fixtures, contracts, leases, deposit accounts or other assets received by or purchased by CMF pursuant to this Agreement.
Section 22. Extension of Agreement. This Agreement may be renewed or extended for an additional two-years pursuant to the following process:
A. CMF may seek an extension of this Agreement by submitting on or before March 31 of the year it is otherwise set for termination, a letter of intent requesting extension.
B. On or before May 31, City shall respond in writing to CMF's letter of intent to request extension, setting forth its decision.
Section 23. Time. Time is of the essence in this Agreement and for the performance of all covenants and conditions of this Agreement
Section 24. Cooperation. Each party agrees to execute all documents and do all things necessary and appropriate to carry out the provisions of this Agreement.
Section 25. Applicable Law. This Agreement shall be interpreted and enforced under the laws of the State of California.
Section 26. Notices, All notices and other communications to be given by either party shall be in writing, depositing the same in the United States mail, postage prepaid and addressed to the appropriate
CMF Agreement Rev: 8/4/2015 Page 9 party as follows:
To City: Lauren Vasquez City Manager’s Office City of Monrovia 415 S. Ivy Avenue Monrovia CA 91016
To CMF: Lance Mungia Executive Director KGEM P.O. Box 227 Monrovia, CA 91017
Any party may change its address for notice by written notice to the other party at any time. City shall designate a person who shall act as liaison between City and CMF.
Section 27. Entire Agreement. This Agreement is the entire agreement of the parties and supersedes all prior negotiations and agreements whether written or oral. This Agreement may be amended only by written agreement executed by the parties and no purported oral amendment to this Agreement shall be valid.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date written above.
APPROVED AS TO FORM AND CONTENT:
______Craig A. Steele, City Attorney City of Monrovia
ATTEST: CITY OF MONROVIA (A California Municipal Corporation)
______Alice D. Atkins, CMC, City Clerk Oliver Chi, City Manager
Date: ______
APPROVED AS TO FORM AND CONTENT: COMMUNITY MEDIA OF THE FOOTHILLS (A California Non-Profit Corporation)
______Lorraine Grindstaff, Rena Delgado, Secretary Corporate Counsel Board of Directors
Date: ______
CMF Agreement Rev: 8/4/2015 Page 10