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HomeMy WebLinkAbout2007-09-25 - AGENDA REPORTS - LAUREN BROADCASTING MOU (2)Agenda Item• 7 CITY OF SANTA CLARITA AGENDA REPORT CONSENT CALENDAR City Manager Approval: Item to be presented by: Kevin Tonoian DATE: September 25, 2007 SUBJECT: MEMORANDUM OF UNDERSTANDING BETWEEN CITY OF SANTA CLARITA AND LAUREN BROADCASTING CORPORATION (LBC) DEPARTMENT: Administrative Services RECOMMENDED ACTION City Council approve a six-month MOU between the City and Lauren Broadcasting Corporation and authorize the City Manager to execute the MOU, subject to City Attorney approval. BACKGROUND In January of this year, the City was approached by Lauren Broadcasting Corporation (LBC, a for profit firm) with a conceptual proposal to expand the amount of original local programming currently available on the City's Public, Education & Government (PEG) Channel. In the months that have followed since receipt of this proposal, City staff, LBC (represented by Mr. Richard Budman), and representatives of Time Warner Cable have been working collaboratively in an effort to identify potential opportunities to provide expanded local programming on the City's PEG channel. At this time, LBC is interested in providing additional local programming on the City's PEG channel that would include community features, local news, high school sporting events, and other community events of interest. LBC has developed a proposal that seeks to fund the cost associated with the production of such local programming through the insertion of 30 -second sponsorship ads within programs they produce that appear on the PEG channel. To facilitate this public/private partnership, City staff has worked with LBC to develop a proposed Memorandum of Understanding (MOU) that would serve as the governing document for a six-month pilot program. The official pilot program would commence on or about October 1, 2007 and run through April 1, 2008. This pilot program has been developed to evaluate the V I P P Nt 101Eo' viability of using a contract firm to increase the availability of programming on the City's PEG channel. This proposed MOU provides LBC with a 24-hour block of time per week on the City's PEG channel that encompasses the evenings of Sundays, Mondays, and Thursdays from 6:00 p.m. to 10:00 p.m., Fridays from 11:00 p.m. to 2:00 a.m., and Tuesdays and Saturdays from 12 p.m. to 4:00 p.m. City staff and the City Attorney's Office have conducted an encompassing review of state and federal legislation regarding the insertion of advertising on the PEG channel. Specifically, California state law provides that PEG programming may be interrupted with "advertising, underwriting, or sponsorship recognition" within the meaning of Public Utilities Code § 5870(b). Unlike normal commercial television, sponsorship ads on PEG stations cannot generate a profit and can only be utilized to cover the production costs associated with the creation of original programming. As outlined in the proposed MOU, six minutes out of every 30 -minute segment of programming produced by LBC may be interrupted with "advertising, underwriting, or sponsorship recognition" within the meaning of Public Utilities Code § 5870(6). To the extent that there are any excess profits, such profits shall be deposited with the City for use only for PEG -related activities. At present, LBC has indicated to staff that its monthly incurred expenditures (inclusive of personnel and operations) exceed $85,000 and projects it will generate monthly revenues through sponsorship inserts of approximately $69,000. At the conclusion of the six-month period, staff will evaluate this pilot program in order to determine its overall value and benefit to the community. If the evaluation determines there is merit to continue, staff will return to the Council with a recommendation to consider proceeding with a public request for proposal process to identify and ultimately award a contract to a non-profit organization to provide local original programming on a continuing basis. Finally, it is important to note the proposed MOU includes language that clearly states the existence of this Agreement in no way suggests the City will in the future opt to authorize any party, including LBC, to create Programming to appear on Channel 20. ALTERNATIVE ACTIONS 1. Do not approve this MOU. 2. Other actions as identified by the City Council. FISCAL IMPACT There are no direct financial impacts associated with this MOU. Staff time and attorney costs associated with the development and review of the MOU have been previously budgeted as part of the Fiscal Year 2007/08 budget process. ATTACHMENTS Draft Memorandum of Understanding between the City and Lauren Broadcasting Corporation (LBC) MEMORANDUM OF UNDERSTANDING THIS MEMORANDUM OF UNDERSTANDING (MOU) is made and entered into this _ day of , 2007 by and between the City of Santa Clarita, California a municipal corporation, (the "City"), and Lauren Broadcasting Corp., a California Corporation ("LBC"), whose address is 25709 Rye Canyon Road No. 105, Santa Clarita, CA 91355. RECITALS WHEREAS, the City currently has sole control over the programming that appears on Time Warner Cable's Channel 20 and AT&T's Channel 20 (collectively, "Channel 20"); WHEREAS, production of programming that is locally produced and is relevant to the residents of the City is of substantial benefit to its citizens; WHEREAS, the City wishes to improve the quality and quantity of locally produced programming that appears on Channel 20; WHEREAS, the City wishes to assess the best method for creating such additional programming; WHEREAS, the City believes that entering into a pilot program is the appropriate mechanism to determine whether authorizing a private party to create that programming is the best method to meet the City's needs; WHEREAS, LBC operates Santa Clarita Valley Television ("SCVTV"); WHEREAS, LBC has proposed to create this programming on a trial basis; WHEREAS, LBC currently estimates that its monthly expenses in providing the Programming will be $85,000; WHEREAS, LBC intends to obtain underwriting, advertising, or sponsorship recognition, to be paid for at the average rate of $30 for a 30 second spot; WHEREAS, LBC has the ability to recoup approximately $69,000 each month in advertising revenue for an estimated net loss of $16,000/month; NOW, THEREFORE, in consideration of the premises and mutual obligations herein, the parties hereto do mutually agree as follows: A. Scone of Services: LBC shall perform the following services (hereinafter the "Services") in a professional manner: LA #4819-2918-8865 A 1. 24 Hours of Pro rg amming. LBC shall create and provide at least 4 hours of new programming per week to appear on Channel 20 (the "Programming"). When calculating the hours of the programming that LBC creates, any advertising, underwriting, or sponsorship recognition shall be considered "new" programming for these purposes. For example, if a particular television show is 24 minutes in length, and the television show includes 6 minutes of advertising, underwriting or sponsorship recognition, LBC shall be considered to have provided 30 minutes of new programming. The Programming must be: "non-commercial" within the meaning of Public Utilities Code § 5870, of particular interest to City residents, and distinct from any programming which would appear on traditional commercial television. All such programming must be developed at facilities other than those currently operated by Time Warner Cable, which facilities are cur ently located at 22505 14ffi Street, Unit E, Santa Clarita 91321. 2. Timin o� f Pro arg_mming. For each half hour of new programming that LBC creates, the City will grant LBC the option to require that the programming be shown for up to a total of six showings in one week, so long as the total number of hours of shown material does not exceed 24 hours in the particular week. The Programming shall be aired on Channel 20 at the following time slots: Sundays, Mondays, and Fridays between 6 p.m. and 10 p.m.; Fridays between 11:00 p.m. and 2:00 a.m.; and Tuesdays and Saturdays between 12 p.m. and 4 p.m. (the "Time Slots"). The Time Slots shall remain the same unless mutually agreed to by the parties in writing. If LBC fails to utilize all of the Time Slots, the City has full discretion to utilize those time slots in any manner it sees fit. 3. Direct Contact With Time Warner & AT&T. LBC shall take all steps reasonably necessary to ensure that the Programming is timely and properly aired on Channel 20 by both Time Warner Cable, Inc. ("Time Warner") and AT&T California ("AT&T"), when such service becomes technically available. This includes timely providing the Programming and promptly notifying the City if Time Warner and/or AT&T fail to timely or professionally broadcast the Programming. 4. Quality Programming. All programming must be of a contemporary quality and of the highest standard for non-commercial television material. 5. Preemption of Programming_ Notwithstanding any other provision of this MOU, if the City wishes to override any Programming to provide information, news, or programming which the City reasonably deems to be of broad community interest, which includes, but is not limited to a broadcast of any City Council meeting, or meeting of any other governmental body, the City may do so. If this occurs, then the City's obligation to provide up to a maximum of 24 hours of airtime per week during the Time Slots is lessened by the total length of time that the City overrides any programming pursuant to this section of the MOU. 6. City Has Discretion to Remove Programming. If, in its sole and unfettered discretion, the City determines that particular Programming is not consistent with the terms of this MOU, the City may unilaterally require LBC to not air that Programming. If the City opts to require LBC to not air that Programming, and there is substantial evidence that the City's decision was reasonable, then the prohibited Programming shall not count toward the minimum requirement to produce 4 hours/week of programming. 2 7. Compliance With Laws and Local Regulations. All Programming and all of LBC's operations must comply with all federal, state, and local laws, regulations and authorities addressing access or cablecast requirements, including Title 18, Section 1468 of the U.S. Code, which ensures that cablecasting of questionable material be aired at appropriate times. 8. Compliance with Santa Clarita Policies. All Programming, and any actions taken pursuant to this MOU must also comply with the generally applicable "Policies and Procedures" which apply to any provider of video content for Channel 20, and which may be updated from time to time. If such "Policies and Procedures" are amended, for a one month period thereafter, any actions taken by LBC that are inconsistent with the prior procedures, but inconsistent with the new procedures, shall not constitute a material breach of this MOU. Thereafter, LBC shall fully comply with the newly amended Policies and Procedures. 9. Non -Offensive and Non -Partisan. The Programming must be non-offensive to the reasonable viewer. Political issues may be discussed as part of the Programming, so long as such Programming is non-partisan and objective in its presentation of the issues. In no event shall any advertising, underwriting or sponsorship recognition in any way relato to any political matter, including any campaign, unless doing so is legally required and LBC notified the City in writing that it is legally required to allow such advertising, underwriting or sponsorship recognition. 10. No Bulletin Board. None of the programming may include Bulletin Board programming or similar material. 11. Locally Produced. All programming shall be locally produced. B. Advertising, Underwriting or Snonsorshia Recognition To offset LBC's costs in producing such Programming, six minutes of every 30 minute segment of Programming may be interrupted with "advertising, underwriting, or sponsorship recognition" within the meaning of Public Utilities Code § 5870(b). If and when, in a particular quarter, after expenses, LBC makes a profit from "advertising, underwriting or sponsorship recognition," LBC may keep those profits to the extent that doing so would not cause LBC to have, calculated since the inception of the MOU, obtained a profit from operating pursuant to this MOU. To the extent that there are any excess profits, such profits shall be deposited with the City for use only for PEG related activities. C. Provision of Information At such times and in such forms as the City may require, the City shall be promptly furnished with such statements, records, reports, data and information, as the City may request pertaining to matters covered by this MOU. The City shall have the right to audit all information reasonably related to this MOU. Unless authorized by the City, LBC will not release any information concerning the work product including any reports or other documents prepared pursuant to the MOU until the final product is submitted to the City. Unless expressly waived by the City in writing, LBC shall provide to the City the following documentation on a quarterly basis: LA #4819-2918-8865 v 1 3 a. Programming. Listing of the programming, and other relevant activities. b. Income Statement. An income statement detailing SCVTV's activities. C. Balance Sheet. A balance sheet detailing SCVTV's activities. d. Projections. A written summary of projected: income, funding strategies, operation, and programming. e. Performance Reports. Written report detailing compliance with the requirements and purposes of this MOU. D. Record Retention. Records shall be maintained by LBC in accordance with applicable law and requirements prescribed by the City with respect to all matters covered by this MOU. Except as otherwise authorized by the City, such records shall be maintained for a period of three (3) years. All documents provided to the City pursuant to this MOU shall be considered Public Records. E. Term. This MOU shall be effective on the first date that signatures of authorized representatives are affixed to this MOU (the "Effective Date"). This MOU shall terminate on the 183`d day after the Effective Date. The City, however, may unilaterally opt to extend the term of this MOU for any number of terms, so long as the total length of the additional term(s) do not exceed two years in the aggregate and, prior to termination of this MOU or any extension, the City sends written notice of the to LBC that it is extending the term of the MOU. F. Effect on Future Negotiations. The parties agree that in no event shall the existence of this MOU suggest that the City will in the future opt to authorize any party, including LBC, to create Programming to appear on Channel 20. LBC, on behalf of itself, and any party providing services pursuant to this contract, expressly disclaims any right, either by law or equity, to obtain any recompense regardless of any City decision on whether and how to provide any Programming at the termination of this MOU, regardless of any future oral communications between the parties. G. Personnel 1. LBC Provides Own Personnel. LBC represents that it has, or will secure at its own expense, all personnel required in performing all of the Services required under this MOU. Any work performed by such personnel shall be considered as completed by independent contractors and not by employees of the City. 2. Services Provided Only by LBC. All the Services required hereunder will be performed by LBC or under its supervision and all personnel engaged in the work shall be fully qualified and shall be authorized or permitted under state and local law to perform such Services. H. Bonds and Insurance. 4 1. Broadcasting Liability Insurance Required Upon execution of this MOU and on the renewal of all coverage, LBC shall furnish to the City a certificate or certificates in form satisfactory to the City showing that it has Broadcasting liability (media perils) insurance coverage with liability limits in amounts not less than one million dollars ($1,000,000) per occurrence. The insurance policies must insure against claims arising from broadcast, utterance, dissemination, or publication of any kind by any method, including but not limited to claims for libel, slander, defamation or any invasions of rights or privacy. 2. Certificates of Insurance. All certificates of insurance shall provide that thirty (30) days written notice be given to Kevin Tonoian, 23920 Valencia Blvd. Santa Clarita, CA 91355, before a policy is canceled, materially changed, or not renewed. The City shall be named an additional insured for all coverages and the coverages afforded shall be primary with respect to operations provided. 3. Approval of Insurance: Neither approval nor failure to disapprove certificates, policies, or the insurance by the City shall relieve LBC of full responsibility to maintain the required insurance in full force and effect. If part of the MOU is sublet, LBC shall include any or all subcontractors in its insurance policies, or require the subcontractors to secure insurance to protect itself against all hazards enumerated herein, which are not covered by LBC's insurance policies. I. Publication, Reproduction and Use of Material. LBC shall hold the copyright for all Programming. The City shall have an unrestricted license to broadcast, publish, disclose, distribute and otherwise use, in whole or in part, any Programming prepared under this MOU. Such license will continue after the termination of the MOU. J. Termination for Cause. If, through any cause, LBC fails to fulfill in a timely and proper manner its obligations under this MOU or if LBC violates any of the covenants, agreements, or stipulations of this MOU, the City may provide LBC with written notice of such violation(s). If LBC fails to diligently pursue a cure of all such violation(s) within 14 days of its receipt of such notice, or if, for any reason, all such violation(s) are not cured within 30 days of receipt of the written notice, the City may terminate this MOU by giving ten (10) days written notice to LBC of such termination and specifying the effective date of such termination. In this event, LBC shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of this MOU by LBC. K. Miscellaneous Provisions 1. Independent Contractor: Neither LBC, its affiliates, subsidiaries, or any other party related to LBC, including any of their employees, agents or assigns, shall be considered to be employees of the City of Santa Clarita for any purpose whatsoever. Rather, LBC, and any other party performing any duty relating to this MOU shall be an independent contractor. LBC further agrees that neither it nor its employees, agents or assigns are entitled to any benefits from the City unless expressly authorized pursuant to this contract. LA #4819-2918-8865 v1 5 2. Indemnification and Hold Harmless: LBC agrees to defend, indemnify and hold harmless the City and its officials, agents and employees from and against any and all claims, actions, suits or proceedings of any kind brought against said parties in relation to the award of this MOU, because of any injury or damage received or sustained by any person, persons or property not belonging to the City, arising out of or resulting from the Services performed by LBC under this MOU or by reason of any asserted act or omission, neglect or misconduct of LBC or LBC's agreements or employees or any subcontractor or its agents or employees. The indemnity required hereunder shall not be limited by reason of the specification of any particular insurance coverage in this MOU. 3. Discrimination Prohibited. In performing the Services required hereunder, LBC shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, physical handicap or disability, as defined in the Americans With Disabilities Act, gender, Vietnam Era or disabled veterans status, sexual orientation, gender identity or medical condition. 4. Assignment. LBC shall not assign any interest in this MOU and shall not transfer any interest in this MOU (whether by assignment or notation), without the prior written consent of the City. 5. _Construction and Severability: If any part of this MOU is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other part of this MOU so long as the remainder of the MOU is reasonably capable of completion. 6. Entire MOU: This MOU contains the entire MOU of the parties and supersedes any and all other agreements or understandings, oral or written. 7. Applicable Law: This MOU shall be governed by and construed and enforced in accordance with the laws of the State of California, and the laws, rules and regulations of the City of Santa Clarita. IN WITNESS WHEREOF, the City and LBC have executed this MOU as of the date first above written. CITY OF SANTA CLARITA LAUREN BROADCASTING CORP. Approved By: LE Ken Pulskamp, City Manager Date Approved as to Form: Un R Richard Budman, CEO Date Carl K. Newton, City Attorney Date LA #4819-29184865 vl 7