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HomeMy WebLinkAbout04/21/2009, C2 - AMENDMENT TO AGREEMENT WITH SLO COUNTY PUBLIC ACCESS (SLOCOPA) RELATED TO THE USE OF PUBLIC ACCESS � 1 Councit 4-21-09 j ac Enda Report CITY OF SAN LUIS OBISPO FROM: Audrey Hooper, City Clerloc e SUBJECT: AMENDMENT TO AGREEMENT WITH SLO COUNTY PUBLIC ACCESS (SLOCOPA) RELATED TO THE USE OF PUBLIC ACCESS TELEVISION FUNDS RECOMMENDATION Approve an Amendment to the Agreement with SLO County Public Access (SLOCOPA) for the continued use of the public portion of the PEG Access funds that will: 1) waive the requirement for year-end financial statements to be audited by an independent certified public accountant, and 2) extend the term of the Agreement for one year, expiring on March 31, 2010;and authorize the Mayor to execute the Amendment. DISCUSSION Background In 1995, the City of San Luis Obispo entered into a 15-year Franchise Agreement with Charter Communications (previously Sonic Cable Television) for the operation of a cable television system in the City. The Franchise Agreement included a commitment by the cable company to establish a PEG (public, education, government) Access account containing funds equal to I% of Charter's annual gross revenues for the purchase of capital equipment for local PEG Access broadcasting purposes. (These funds cannot be used for operational purposes nor can they be used for anything other than PEG Access broadcasting.) In order to collect the funds reserved in the PEG Access account established by Charter, the City was required to submit a PEG Access Operating Plan to Charter in compliance with the Franchise Agreement. On March 1, 2005, the City Council approved guiding principles to allow for the development of that Operating Plan. The guiding principles required that the monies received from Charter for PEG Access be distributed equally between the City of San Luis Obispo, San Luis Obispo County Public Access (SLOCOPA), and San Luis Coastal Unified School District(SLCUSD). On July 19, 2005, the City Council: 1) approved the City's Cable Television PEG Access Operating Plan; 2) authorized the City to enter into an agreement with SLCUSD to reserve the educational portion of these funds until SLCUSD had developed and received approval of its Operating Plan and entered into an agreement with the City for use of these funds; and 3) authorized the City to enter an agreement with SLOCOPA for use of the public portion of the PEG Access funds. At that time, accrued PEG Access funds equaled just over $600,000. With approval of the City's Operating Plan, Charter released these funds to allocate and use in accordance with the City's guiding principles and Operating Plan. These funds have continued Ca--- I Amended Agreement with SLOCOPA Page 2 to accrue at approximately $100,000 per year and are allocated equally for use for public access (SLOCOPA), education access (SLCUSD), and government access (City)purposes. Amendment to Agreement with SLOCOPA The City entered into a three-year Agreement with SLOCOPA, a non-profit organization, in March 2006 whereby the City agreed to provide one third of all funds that it receives from Charter Communications for PEG access to SLOCOPA to be used for the purchase of capital equipment and facilities. In exchange, SLOCOPA agreed to operate a public access television channel and manage a video production facility and equipment for use by the residents of the City of San Luis Obispo. As of January 2009, the City has released approximately $201,500 of the $370,000 funds that have accrued for the public portion of PEG Access funds. These funds are released only upon submittal of an annual budget, a list of equipment needs for the upcoming year, and upon receipt of invoices and/or written estimates by the vendors providing the equipment. Section 18 of the Agreement contained a provision that would authorize the extension of the Agreement for two additional periods of three years. However; staff is recommending that the Agreement be extended only for an additional one-year term (Attachment #1). The one-year extension is being recommended to: 1) coincide with the termination of the City's Franchise Agreement with Charter Communications; 2) allow the City to more thoroughly assess the relationship between the SLOCOPA Board, its members, and its non-member producers as recommended by the Human Relations Commission; and 3) allow SLOCOPA to obtain additional public feedback, improve its outreach, and provide the City with additional information that would assist it in assessing SLOCOPA's effectiveness as a public access television services provider. SLOCOPA concurs with staff s recommendation and has submitted a request for a one-year extension (Attachment#2). Staff is also recommending that the Agreement be amended to waive the requirement for year-end financial statements to be audited by an independent certified public accountant. Reasons for the waiver of audited financial statements and the one-year extension of the Agreement are indicated below. 1. Audit of Year-End Financial Statements Section 12, Annual Reports, of its Agreement with the City requires that SLOCOPA submit an audit of its year-end financial statements by an Independent Certified Public Accountant. For the past two years the City has received a request to waive the audit requirement. Because of the small size of SLOCOPA's budget and revenues (about $5,000 annually), the City concurred that such an audit was unduly burdensome for SLOCOPA and waived the requirement. Staff is concerned that should a financial need arise that cannot be met with the funding provided by the City for equipment or facilities, this provision could result in SLOCOPA having to cease operations. Although staff is recommending the requirement for an audit be waived for the term of the Amendment, SLOCOPA will still be required to submit its year-end financial statements with its Annual Report. Cod—cl Amended Agreement with.SLOCOPA Page 3 2. One-Year Extension In accordance with the Franchise Agreement, Charter has provided studio space for several years at no cost to its subscribers, the City, or SLOCOPA for public television broadcasting. Although there was no requirement to do so, in the spirit of promoting public television Charter has also been providing the services of a half-time employee to perform scheduling and other broadcasting duties for public television. Charter has provided this employee at no cost to the public, the City or SLOCOPA. The Franchise Agreement between Charter and the City will expire in April 2010. With the expiration of the Agreement, Charter will no longer be required to provide studio space for public television. It is unclear at this time whether Charter will continue to provide either studio space or the continued services of a half-time employee at no cost to the City or SLOCOPA after the expiration of the franchise. Therefore, should Charter decide not to continue to provide space or employee services at no cost, the City will need to enter into a new Agreement with SLOCOPA that contains provisions to address the needs resulting from this change. Other Related Issues 1. Human Relations Commission (HRC) Investi ation. As a result of concerns and complaints the City had received regarding the public access channel, particularly allegations of unlawful discrimination, on July 1, 2008, Council directed the HRC to investigate whether there was evidence of unlawful discrimination on the part of SLOCOPA. The HRC did not find any specific evidence of unlawful discrimination. However, the HRC was concerned with the failure of the SLOCOPA Board, its members, and its non-member producers to work together productively. Therefore, it recommended that if the SLOCOPA Agreement were to be extended beyond its expiration date, it be for a period of one year to coincide with the expiration of the Franchise Agreement. The purpose of this extension would be to allow the City to more thoroughly assess whether the parties have been working together productively. 2. Independent Performance Review. Section One of its Agreement with the City, requires SLOCOPA to contract with an expert in the area of public access to conduct a performance review of its operations. As a result, SLOCOPA contacted City of Santa Maria PEG Station Manager Alan Sutterfield, who has worked in the field of commercial television for many years. Mr. Sutterfield's performance review highlighted a number of improvements in the organization over the past few years and indicated that its public access programming and membership is comparable to the City of Santa Maria. However, the review failed to obtain adequate feedback from public television viewers and Mr. Sutterfield made recommendations for continuing a viewer survey over the next few months. He also made recommendations for improving SLOCOPA's outreach and operations. A one-year extension of the Agreement would provide SLOCOPA with an opportunity to obtain additional public feedback, improve its outreach, and provide the City with additional information that would assist it in assessing SLOCOPA's effectiveness as a provider of public access television services prior to entering into a new, multiple year Agreement with SLOCOPA. � a -3 I J Amended Agreement with SLOCOPA. Page 4 CONCURRENCES The City Attorney and the Finance and Informational Technology Director have reviewed these recommendations and concur with the recommended actions. FISCAL IMPACT There will be only minimal financial impact associated with managing the public and educational access funds for Public Access Television and SLCUSD. ALTERNATIVES Council could decide not to extend the Agreement. However, release of PEG funds by Charter Communications to the City was based on approval of the City's Operating Agreement, which included SLOCOPA as operators of the public access cable channel and community access center. Charter may require a revised Operating Plan with a new proposal by the City indicating who would assume responsibility for these services and the disposition and use of the equipment purchased for public access purposes. ATTACHMENTS 1. Proposed Amendment to Agreement with SLOCOPA 2. Letter from SLOCOPA Requesting a One-Year Extension of Its Agreement COUNCIL READING FILE 1. Franchise Agreement with Charter Communications (Ordinance No. 1278)(formerly Sonic Cable Television) 2. City PEG Operating Plan (Resolution No. 9708—2005 Series) 3. SLOCOPA Agreement dated March 8, 2006 G:\709-08 PEG Access\Council Agenda Reports\04-21-09 Extension of SLOCPA Agreentent.doc ATTACyMENT I AMENDMENT TO AGREEMENT THIS AMENDMENT TO AGREEMENT is made and entered in the City of San Luis Obispo on , 2009, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, herein after referred to as"City,"and SLO County Public Access, hereinafter referred to as"SLOCOPA." WITNESSETH: WHEREAS, on March 8, 2006, the City entered into an Agreement with SLOCOPA for the purpose of providing public programming and services;and NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained,the parties hereto agree as follows: 1. Section 12 Annual ReportThe requirement for year-end financial statements to be audited by an independent certified public accountant(subsection C) shall be waived for the remainder of the Term of Agreement (Section 19), as amended, i.e. through March 31, 2010. However, SLOCOPA shall continue to be responsible for providing financial statements that fairly present its financial results of operations and beginning and ending financial condition for the preceding fiscal year by May 31 in a format acceptable to the City as part of its annual report. 2. Section 19. Term of Agreement The term of the Agreement shall be extended for one year, and shall expire on March 31,2010. 3. All other terms and conditions of the Agreement remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first written above. ATTEST: CITY OF SAN LUIS OBISPO By: City Clerk Mayor APPROVED AS TO FORM: CONT TOR C: By: ttorney SLO County Public Access I � j ATTACH!?r?.T 2 March 23, 2009 RECEIVED ED SLOCOPA MAR 2 rt-)- 70109 P.O. Box 7155 SLO CITY CLE ie Los Osos, CA 93412. R Attn:Audrey Hooper, City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 Re: Extension of Agreement On behalf of San Luis Obispo County Public Access, the SLOCOPA Board of Directors would like to request an extension of the Agreement Between The City Of San Luis Obispo And SLO County Public Access pursuant to Section 21 of said Agreement. While the Agreement stipulates extensions of three years in length, SLOCOPA is requesting a one year extension concluding March 31, 2010. Salvador Espana Chairman of the Board of SLOCOPA