HomeMy WebLinkAboutGranicus LLC; 2023-08-07; 1 City Attorney Approved 12/28/2022
ASSIGNMENT AND ASSUMPTION AGREEMENT FOR VIDEO STREAMING SERVICES
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (“Assignment Agreement”) is made and entered into this _______ day of ___________ 2023, by and between the CITY OF CARLSBAD, a political subdivision of the State of California (“City”), Swagit Productions, LLC a Texas Limited Liability Company, (“Assignor”) and Granicus, LLC a Minnesota Limited Liability Company, (“Assignee”), and is made with reference to the following facts: RECITALS A. On July 15, 2021, the City and Assignor entered into that certain Professional Services Agreement concerning video streaming services using the Extensible Automated Streaming Engine software, (the “Agreement”).
B. Paragraph 8.5 of the Agreement allows Assignor to assign rights and obligations under the Agreement upon written approval of the City.
C. Assignor desires to assign its interest in the Agreement to Assignee. Further, Assignee desires to accept assignment of Assignor’s interest in the Agreement and City consents
to the assignment of the interest in the Agreement from Assignor to Assignee. NOW THEREFORE, incorporating the above recitals and in consideration of the covenants and obligations set forth herein, the parties hereto agree as follows: 1. Assignment. Assignor hereby assigns to Assignee all of Assignor’s rights and obligations as set forth in the Agreement. 2. Assumption. Assignee hereby assumes all of Assignor’s rights and obligations as set forth in the Agreement. 3. City Consent. City hereby agrees and consents to the assignment of all of Assignor’s rights and obligations as set forth in the Agreement to Assignee.
4. General Terms and Conditions. The following general terms and conditions shall apply to this Assignment Agreement.
4.1 Hold Harmless. In addition to the hold harmless provisions contained within the Agreement, and except as to the sole negligence, or willful misconduct of City, Assignee shall defend, indemnify and hold the City, its officers and employees, harmless from any and all loss,
damage, claim for damage, liability, expense or cost, including attorneys fees, which arises out of or is in any way connected with this Assignment Agreement, notwithstanding that City may have benefitted from this Assignment Agreement. The hold harmless provision shall apply to any acts or omissions, wilfull misconduct or negligent conduct, whether active or passive, on the part of Assignee.
The parties expressly agree that this section shall survive the expiration or early
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termination of this Agreement.
4.2. Counterparts. This Assignment Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument.
4.3. Successors and Assigns. It is mutually understood and agreed that this Assignment Agreement shall be binding upon City, Assignor and Assignee and their respective successors. Neither this Assignment Agreement or any part hereof nor any monies due or to become due hereunder may be assigned by Assignee without the prior consent of City. 4.4. Governing Law. This Assignment Agreement shall be governed by, interpreted under, and construed and enforced in accordance with, the laws of the State of California. 4.5. Venue. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Assignment Agreement shalt be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county.
4.6. Notices. Service of any notices, bills, invoices or other documents required or permitted under this Assignment Agreement shall be sufficient if sent by one party to the other by
United States mail, postage prepaid and addressed as follows: City: City Manager
City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Assignor: Swagit Productions, LLC 12801 North Central Expressway, Suite 900 Dallas, TX 75243 Assignee: Granicus, LLC 408 Saint Peter Street, Suite 600 Saint Paul, MN 55102
4.7. Nondiscrimination. During the term of this Assignment Agreement, the parties
shall comply with the state and federal laws regarding non-discrimination. 4.8 Authority. The parties executing this Assignment Agreement on behalf of City,
Assignor and Assignee each represent and warrant that they have the legal power, right and actual authority to bind the City, Assignor and Assignee, respectively, to the terms and conditions hereof. 4.9 Severability. Each provision, term, condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement shall be considered severable. In the event any
provision, term, condition, covenant, and/or restriction, in whole and in part, in this Assignment
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Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from this Assignment Agreement and shall not affect any other provision,
term, condition, covenant, and/or restriction, of this Assignment Agreement and the remainder of this Assignment Agreement shall continue in full force and effect.
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4.10 Effective Date. This Assignment Agreement shall be effective upon the date and year first above written.
ASSIGNOR:
Swagit Productions, LLC CITY OF CARLSBAD, a municipal corporation of the State of California
*By: By: (sign here) Assistant City Manager
(print name/title)
**By:
(sign here)
(print name/title) ATTEST:
ASSIGNEE:
Granicus, LLC SHERRY FREISINGER City Clerk
*By:
(sign here)
(print name/title)
**By:
(sign here)
(print name/title)
If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups: *Group A. Chairman, President, or
Vice-President
**Group B. Secretary, Assistant Secretary, CFO or
Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CINDIE K. McMAHON, City Attorney By:_____________________________ Deputy City Attorney
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7/27/2023
Alex Bern Contracts Manager
Bryan Halley
7/27/2023
President
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AGREEMENT FOR VIDEO STREAMING SERVICES CITY OF CARLSBAD and SWAGIT PRODUCTIONS, LLC _________________________________ This Agreement for Video Streaming Services (“Agreement”) is made by and between the City of Carlsbad, California (“City”), a municipal corporation with offices at 1200 Carlsbad Village Drive, Carlsbad, San Diego County, California 92008, and Swagit Productions, LLC, (“Provider”) a Texas Limited Liability Company, with offices at 12801 North Central Expressway, Suite 900, Dallas, Texas 75243 effective as of the date written
below. RECITALS
A. The City desires to enter into this Agreement in order to obtain video streaming services for scheduled meetings as outlined in the Scope of Services attached as Exhibit “A”; and
B. Provider has available and offers to provide the personnel necessary to provide
said services in accordance with the attached Exhibit A - Scope of Services included in this Agreement; and
C. Provider is in the business of providing video streaming services for businesses and governmental entities, and represents and warrants that it has the skills, qualifications, expertise and experience necessary to perform the work and
services to provide and implement video streaming services as described herein in an efficient, cost-effective manner with a high degree of quality and responsiveness and has performed and continues to perform the same and similar services for other buyers; and
D. On the basis of and in reliance upon such representations by Provider and others
made herein and in Provider’s proposal, the City desires to engage Provider to provide the work and services described herein under the terms and conditions of this Agreement.
For the reasons recited above, and in consideration of the mutual covenants contained in this Agreement, and other valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the City and Provider agree as follows:
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1. SERVICES TO BE PERFORMED BY PROVIDER
Provider agrees to perform the following work and services for the City: 1.1 Provider agrees to provide the work and services as set forth in Exhibit A - Scope of Services, attached hereto and incorporated herein.
2. COMPENSATION OF PROVIDER
2.1 Provider agrees to provide all of the services and equipment set forth in the Scope of Services and as described herein for the following amounts:
(a) The City shall pay to Provider a monthly fee in the amount of Six Thousand Three Hundred Ninety-Five and No/100 Dollars ($6,395.00) for on-
demand video streaming, live video streaming, sound search and video on-demand closed captions (as further described in Exhibit “A”, page 3, “Streaming Video Monthly Managed Services”).
2.2 Except as set forth herein, payments will be processed on a monthly basis, unless annual billing has been requested, with payment available within 30 days after
receipt of an invoice for the previous month’s service. All payments pursuant to this Agreement shall be made promptly and without undue delay, and in no circumstance beyond 60 days from the due date.
2.3 Should the City fail to pay any invoice that is outstanding more than 60 days, a 5% service fee will be applied to the total amount of that invoice, not including any
shipping or sales tax.
3. RIGHTS, OBLIGATIONS AND REPRESENTATIONS OF PROVIDER
3.1 Independent Contractor. The parties agree that Provider performs specialized services and that Provider enters into this Agreement with the City as an
independent contractor. Nothing in this Agreement shall be construed to
constitute Provider or any of Provider’s agents or employees as an agent, employee or representative of the City. Further, nothing in this Agreement is intended nor shall be construed to create an employer-employee relationship, a joint venture relationship, a joint enterprise, or to allow the City to exercise
discretion or control over the manner in which Provider performs the work and
services, which are the subject matter of this Agreement. As an independent contractor, Provider is solely responsible for all labor and expenses in connection with this Agreement and for any and all damages arising out of Provider’s performance under this Agreement.
3.2 Provider’s Control of Work. All services to be provided by Provider shall be performed in accordance with the Scope of Services. Provider shall furnish the qualified personnel, materials, equipment and other items necessary to carry out the terms of this Agreement. Provider shall be responsible for and in full control of the work of all such personnel. Provider warrants and represents that all equipment
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and other goods and materials provided by Provider shall be safe, fully operational, and will not cause injury or damage to any person or property, and that all persons provided by Provider to perform the work and services under this Agreement shall
be adequately trained and capable of performing the work and services.
3.3 Reports to the City. Although Provider is responsible for control and supervision of work and services performed under this Agreement, the work and services provided shall be acceptable to the City and shall be subject to a general right of inspection and supervision to ensure satisfactory completion. This right of
inspection and supervision shall include, but not be limited to, all reports to be provided by Provider to the City and the right of the City, as set forth in the Scope of Services.
3.4 Compliance with All Laws. Provider shall comply with all applicable laws, statutes,
ordinances, rules, regulations, standards, codes, and executive orders of the
federal, state and local government, which may affect the performance of this Agreement.
3.5 Organization and Authorization. Provider warrants and represents that: (i) it is a limited liability company duly organized, validly existing and in good standing under
the laws of the State of Texas, and which shall remain in good standing throughout
the term of this Agreement; (ii) it has the requisite power and authority to carry on its business as it is now being conducted; (iii) it has the legal capacity to enter into this Agreement; (iv) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been
authorized and approved by all action required on the part of Provider; (v) has the
right and authority to sell the hardware and software to the City; (vi) all hardware and software shall be in good working order; and, (vii) all licenses and warranties regarding the software and hardware shall be conveyed to the City.
3.6 No Conflict. Provider warrants and represents that the execution and delivery of
this Agreement and ancillary agreements hereto by Provider does and will not: (i)
conflict with, or result in any violation or breach of, any provision of Provider’s charter documents; (ii) result in any violation or breach of, or constitute a default under, or require a consent or waiver under, any of the terms, conditions or provisions of any license, contract or other agreement to which Provider is a party;
or (iii) conflict with or violate any franchise, license, judgment, order, statute, law,
rule or regulation applicable to Provider.
3.7 Warranty. Provider warrants that: (i) any streaming server hardware provided by Swagit (as further described in the Scope of Services, page 3, “Streaming Video
Hardware”) not in good working order and used under normal operating conditions,
will be fully replaced for a period of three (3) years; (ii) thereafter, all costs of
streaming server hardware replacement due to any failure or caused by normal wear and tear, shall be at the City’s expense; (iii) all operating and proprietary software for any streaming server shall be fully replaced or upgraded, at no cost to the City, for the life of the contract; and (iv) in the event of a complete hardware
failure within the warranty period, Provider shall overnight replacement parts and/or
a new server at its sole expense.
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3.8 Provider’s Service Network. Provider’s content delivery network and service level represents that: (i) it maintains full N+1 redundancy on all service critical-
infrastructure in order to protect against outages. Multiple mirror facilities provide
diverse geographic redundancy. Within each facility servers have multiple power supplies, network interfaces and RAID protected storage. Provider is connected to upstream bandwidth providers by multiple gigabit uplinks, transitioning to gigabit and ten-gigabit connections to multiple “tier 1” bandwidth providers, offering route
diversity and redundancy. These bandwidth providers maintain 24/7 staffs familiar
with mitigating Denial of Service attacks, should the need arise, which they have sufficient capacity to absorb-and-filter; (ii) Provider utilizes external, 3rd party monitoring services to track server availability metrics. This service tracks availability from approximately 30 international points which helps isolate regional
networking issues, in addition to any centralized failures; (iii) Content is stored and
viewable to the public on the Provider’s networks indefinitely during the term of the Agreement. All Content is stored and backed up offline indefinitely for the life of the Agreement. Content can also be stored locally on the City’s network for an indefinite period of time limited only by storage capacity, with the added benefit of
cached delivery to local users. City is consulted before they exceed any storage
horizon and may extend the window for additional years; (iv) Content is stored in widely accessible formats and is available for export at any time. Exported data will include multimedia content and associated documents in their native format as well as any structured metadata in XML format. Access to exported content can be via
FTP but in such an event the City is encouraged to provide a portable hard drive to
ease the transition of storage and bandwidth intensive content; and (v) the City may verify compliance with these policies at any time in consultation with Provider engineers and officers.
4. NOTICE PROVISIONS
Notice. Any notice concerning this Agreement shall be in writing and (i) sent by certified or registered mail, return receipt requested, postage prepaid, (ii) delivered personally, or (iii) placed in the custody of Federal Express Corporation or other nationally recognized carrier to be delivered overnight; and addresses for such notice are as follows:
To the City’s Authorized Representative: To Provider:
IT Director
City of Carlsbad
1635 Faraday Avenue Carlsbad, CA 92008 760/602-2454
David Owusu
Director of Streaming
Swagit Productions, LLC 12801 N. Central EXPY., Ste 900 Dallas, Texas 75243 800/573-3160
Notice shall be deemed given upon receipt by the party to whom it is sent.
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5. INDEMNIFICATION
PROVIDER’S INDEMNITY OBLIGATION. PROVIDER COVENANTS, AGREES
TO, AND SHALL DEFEND (WITH COUNSEL REASONABLY ACCEPTABLE TO THE CITY), INDEMNIFY, AND HOLD HARMLESS THE CITY OF CARLSBAD, CALIFORNIA AND THE ELECTED OFFICIALS, THE OFFICERS, EMPLOYEES, REPRESENTATIVES, AND VOLUNTEERS OF THE CITY OF CARLSBAD,
CALIFORNIA, INDIVIDUALLY OR COLLECTIVELY, IN BOTH THEIR OFFICIAL
AND PRIVATE CAPACITIES (THE CITY OF CARLSBAD, CALIFORNIA, AND THE ELECTED OFFICIALS, THE OFFICERS, EMPLOYEES, REPRESENTATIVES, AND VOLUNTEERS OF THE CITY OF CARLSBAD, CALIFORNIA EACH BEING A "CARLSBAD PERSON" AND COLLECTIVELY
THE "CARLSBAD PERSONS"), FROM AND AGAINST ANY AND ALL CLAIMS,
LIABILITIES, JUDGMENTS, LAWSUITS, DEMANDS, HARM, LOSSES, DAMAGES, PROCEEDINGS, SUITS, ACTIONS, CAUSES OF ACTION, LIENS, FEES, FINES, PENALTIES, EXPENSES, OR COSTS, OF ANY KIND AND NATURE WHATSOEVER MADE UPON OR INCURRED BY THE CITY OF
CARLSBAD, CALIFORNIA AND/OR ANY OTHER CARLSBAD PERSON,
WHETHER DIRECTLY OR INDIRECTLY, (THE “CLAIMS”), THAT ARISE OUT OF, RESULT FROM, OR RELATE TO: (I) ANY OF THE WORK AND SERVICES OF THE PROVIDER AS DESCRIBED IN SECTION 1 OF THIS AGREEMENT, (II) ANY REPRESENTATIONS AND/OR WARRANTIES BY
PROVIDER UNDER THIS AGREEMENT, AND/OR (III) ANY ACT OR
OMISSION UNDER, IN PERFORMANCE OF, OR IN CONNECTION WITH THIS AGREEMENT BY PROVIDER, OR BY ANY OF PROVIDER’S OWNERS, DIRECTORS, OFFICERS, SHAREHOLDERS, MANAGERS, PARTNERS, EMPLOYEES, AGENTS, ENGINEERS, ARCHITECTS, CONSULTANTS,
CONTRACTORS, SUBCONTRACTORS, INVITEES, PATRONS, GUESTS,
CUSTOMERS, TENANTS, SUBTENANTS, LICENSEE, SUBLICENSEE, CONCESSIONAIRES, OR ANY OTHER PERSON OR ENTITY FOR WHOM PROVIDER IS LEGALLY RESPONSIBLE, AND THEIR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, SHAREHOLDERS, MANAGERS,
PARTNERS, EMPLOYEES, AGENTS, ENGINEERS, ARCHITECTS,
CONSULTANTS, CONTRACTORS, SUBCONTRACTORS, INVITEES, PATRONS, GUESTS, CUSTOMERS, PROVIDERS, AND CONCESSIONAIRES. SUCH DEFENSE, INDEMNITY AND HOLD HARMLESS SHALL AND DOES INCLUDE CLAIMS ALLEGED OR FOUND TO HAVE BEEN CAUSED IN
WHOLE OR IN PART BY THE NEGLIGENCE OR GROSS NEGLIGENCE OF
ANY CARLSBAD PERSON, OR CONDUCT BY ANY CARLSBAD PERSON THAT WOULD GIVE RISE TO STRICT LIABILITY OF ANY KIND. PROVIDER SHALL PROMPTLY ADVISE THE CITY IN WRITING OF ANY
CLAIM OR DEMAND AGAINST ANY CARLSBAD PERSON RELATED TO OR
ARISING OUT OF PROVIDER'S ACTIVITIES UNDER THIS AGREEMENT AND SHALL SEE TO THE INVESTIGATION AND DEFENSE OF SUCH CLAIM OR DEMAND AT PROVIDER'S SOLE COST AND EXPENSE. THE CARLSBAD PERSONS SHALL HAVE THE RIGHT, AT THE CARLSBAD PERSONS’
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OPTION AND OWN EXPENSE, TO PARTICIPATE IN SUCH DEFENSE WITHOUT RELIEVING PROVIDER OF ANY OF ITS OBLIGATIONS HEREUNDER. THE DEFENSE, INDEMNITY, AND HOLD HARMLESS
OBLIGATIONS SET FORTH HEREIN SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. 6. INSURANCE
Provider and its subcontractors shall procure and maintain in a company or companies lawfully authorized to do business in California and until all of their obligations have been discharged and satisfied (and including during any warranty periods under this Agreement), insurance against claims for injury to persons or damage to property which may arise from or in connection with the performance of the services and work
hereunder by Provider, its agents, representatives, employees or subcontractors. The insurance requirements herein are minimum requirements for this Agreement and in no way limit the indemnity covenants contained in this Agreement. The City in no way warrants that the minimum limits contained herein are sufficient to protect Provider
from liabilities that may arise out of the performance of the services and work under this Agreement by Provider, its agents, representatives, employees or subcontractors and Provider is free to purchase additional insurance as may be determined necessary. A. Minimum Scope and Limits of Insurance. Provider shall provide coverage at least as broad and with limits of liability not less than those stated below.
1. Commercial General Liability - Occurrence Form (Form CG 0001, ed. 10/93 or any replacements thereof) General Aggregate $2,000,000 Products-Completed Operations Aggregate $1,000,000
Personal & Advertising Injury $1,000,000 Each Occurrence $1,000,000 Fire Damage (Any one fire) $ 50,000 Medical Expense (Any one person) Optional (This coverage must be amended to provide for an each-project aggregate limit
of insurance) 2. Workers' Compensation and Employer’s Liability Workers' Compensation Statutory
Employer's Liability: Each Accident $ 500,000
Disease-Each Employee $ 500,000 Disease-Policy Limit $ 500,000 3. Professional Liability $1,000,000
4. Cyber-Liability Each Occurrence $1,000,000 Aggregate $2,000,000
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B. OTHER INSURANCE REQUIREMENTS: The foregoing insurance policies shall be endorsed to contain the following provisions:
1. The City of Carlsbad, its officers, officials, agents, employees and volunteers shall be named as additional insureds with respect to general liability, including liability arising out of activities performed by, or on behalf of, the Provider; products and completed operations of the
Provider, and automobiles owned, leased, hired or borrowed by the
Provider. 2. The Provider's insurance shall contain broad form contractual liability coverage.
3. The City of Carlsbad, its, officers, officials, agents, employees and volunteers shall be additional named insureds to the full limits of liability purchased by the Provider even if those limits of liability are in excess of those required by this Agreement.
4. The Provider's insurance coverage shall be primary insurance with respect to the City, its, officers, officials, agents, and employees (and must be endorsed to read as primary coverage regardless of the application of other insurance). Any insurance or self-insurance
maintained by the City, its officers, officials, agents, employees, or
volunteers shall be in excess to the coverage of the Provider's insurance and shall not contribute to it. 5. The Provider's insurance shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits
of the insurer's liability. 6. Coverage provided by the Provider shall not be limited to the liability assumed under the indemnification provisions of this Agreement.
7. The policies shall contain a waiver of subrogation in favor of the City, its officers, officials, agents, and employees. 8. All liability policies shall contain no cross liability exclusions or insured
versus insured restrictions applicable to the claims of the City of
Carlsbad. 9. All insurance policies shall be endorsed to require the insurer to immediately notify the City of Carlsbad, California of any material
change in the insurance coverage.
10. Provider may maintain reasonable and customary deductibles, subject to approval of the City.
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11. Insurance must be purchased from insurers that are financially acceptable to the City and licensed to do business in the State of California.
6.1 Notice of Cancellation. Each insurance policy required by the insurance provisions of this Agreement shall provide the required coverage and shall not be suspended, voided or canceled, or not renewed, except after sixty (60) days prior written notice has been given to the City, except when cancellation is for non-payment of
premium, then at least ten (10) days prior notice shall be given to the City. Such notice shall be sent directly to:
Risk Manager
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
6.2 Acceptability of Insurers. Insurance shall be placed with insurers duly licensed or authorized to do business in the State of California and with an “A.M. Best” rating
of not less than A- VII, or receiving prior approval by the City. The City in no way
warrants that the above-required minimum insurer rating is sufficient to protect Provider from potential insurer insolvency. All insurance must be written on forms filed with and approved by the California Department of Insurance.
6.3 Verification of Coverage. Prior to commencing work or services, Provider shall
furnish the City with certificates of insurance (ACORD form or equivalent approved by the City) as required by this Agreement (and update the same as needed to comply with this Agreement). The certificates for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf.
Certificates of Insurance shall: 1. List each insurance coverage described and required herein. Such certificates will also include a copy of the endorsements necessary to
meet the requirements and instructions contained herein.
2. Specifically set forth the notice-of-cancellation or termination provisions to the City of Carlsbad.
All certificates and any required endorsements shall be received and approved by the City before work commences. Each insurance policy required by this Agreement
shall be in effect at or prior to commencement of work under this Agreement and
remain in effect for the duration of this Agreement. Failure to maintain the insurance policies as required by this Agreement or to provide evidence of renewal shall constitute a material breach of contract.
All certificates required by this Agreement shall be sent directly to Risk Manager,
City of Carlsbad, 1635 Faraday Avenue, Carlsbad, CA 92008. The City reserves
the right to request and receive within ten (10) days, complete copies of all insurance
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policies (certified to be true and correct by the insurance carrier) required by this Agreement at any time. The City shall not be obligated, however, to review same or to advise Provider of any deficiencies in such policies and endorsements, and such
receipt shall not relieve Provider from, or be deemed a waiver of the City’s right to insist on, strict fulfillment of Provider’s obligations under this Agreement.
6.4 Subcontractors. Providers’ certificate(s) shall include all subcontractors as
additional insureds under its policies or Provider shall furnish to the City separate
certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to the minimum requirements and all provisions identified above.
6.5 Approval. Any modification or variation from the insurance requirements in this
Agreement shall be made by the City’s risk manager, whose decision shall be final. Such action shall not require a formal amendment to this Agreement, but may be made by administrative action.
7. DEFAULT AND TERMINATION 7.1 Events of Default Defined. The following shall be Events of Default under this Agreement:
7.1.1 Any material misrepresentation made by Provider to the City;
7.1.2 Any failure by Provider to perform its obligations under this Agreement including, but not limited to, the following:
7.1.2.1 Failure to commence work at the time(s) specified in this Agreement due to a reason or circumstance within Provider’s
reasonable control;
7.1.2.2 Failure to perform the work with sufficient personnel and equipment or with sufficient equipment to ensure completion of the work within the specified time due to a reason or circumstance within Provider’s reasonable control;
7.1.2.3 Failure to perform the work in a manner reasonably satisfactory to
the City;
7.1.2.4 Failure to promptly correct or re-perform within a reasonable time work that was rejected by the City as unsatisfactory or erroneous;
7.1.2.5 Discontinuance of the work for reasons not beyond Provider’s reasonable control;
7.1.2.6 Failure to comply with a material term of this Agreement, including, but not limited to, the provision of insurance; and
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7.1.2.7 Any other acts specifically stated in this Agreement as constituting a default or a breach of this Agreement.
7.2 Remedies. The following shall be remedies under this Agreement.
7.2.1 Upon the occurrence of any Event of Default, the City may declare Provider in default under this Agreement. The City shall provide written notification of the Event of Default and any intention of the City to terminate this
Agreement. Upon the giving of notice, the City may invoke any or all of the
following remedies: 7.2.1.1 The right to cancel this Agreement as to any or all of the services yet to be performed;
7.2.1.2 The right of specific performance, an injunction or any other
appropriate equitable remedy;
7.2.1.3 The right to monetary damages;
7.2.1.4 The right to withhold all or any part of Provider’s compensation under this Agreement;
7.2.1.5 The right to deem Provider non-responsive in future contracts to be
awarded by the City; and
7.2.1.6 The right to seek recoupment of public funds spent for impermissible purposes.
7.2.2 The City may elect not to declare an Event of Default or default under this
Agreement or to terminate this Agreement upon the occurrence of an Event
of Default. The parties acknowledge that this provision is solely for the benefit of the City, and that if the City allows Provider to continue to provide the Services despite the occurrence of one or more Events of Default, Provider shall in no way be relieved of any of its responsibilities or
obligations under this Agreement, nor shall the City be deemed to waive or
relinquish any of its rights under this Agreement. 7.3 Right to Offset. Any excess costs incurred by the City in the event of termination of this Agreement for default, or in the event the City exercises any of the remedies
available to it under this Agreement, may be offset by use of any payment due for
services completed before termination of this Agreement for default or the exercise of any remedies. If the offset amount is insufficient to cover excess costs, Provider shall be liable for and shall remit promptly to the City the balance upon written demand from the City.
8. GENERAL PROVISIONS
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8.1 Headings. The section and subsection headings contained herein are for convenience only and shall not be used in interpretation of this Agreement and are
not intended to define or limit the scope of any provision of this Agreement.
8.2 Governing Law and Venue. This Agreement shall be governed by and administered and interpreted under the laws of the State of California, without regard to any conflict of laws provisions. Venue for any action, cause or action or proceeding under this Agreement lies exclusively in the State District Court of San
Diego County, California, and the parties agree to submit to the personal and subject matter jurisdiction of said court. 8.3 Severability. The sections, paragraphs, sentences, phrases, words, and all other
provisions of this Agreement are severable, and if any part of this Agreement is
determined by a court of competent jurisdiction to be illegal, unlawful, unconstitutional, or void for any reason, the parties intend that the remaining provisions of this Agreement shall remain in full force and effect unless the stricken provision leaves the remaining Agreement unenforceable.
8.4 Mediation. As a condition precedent to any party to this Agreement filing a lawsuit the parties shall conduct mediation. The parties to this Agreement covenant, agree, warrant, and represent that they will conduct the mediation in good faith seeking to resolve any dispute between the parties prior to filing a
lawsuit. The parties further covenant, agree, warrant, and represent that should
a party file a lawsuit without first attending a mediation, the non-filing party shall be entitled to abate the lawsuit until such time as the parties have conducted a mediation. The parties will make a good faith attempt to agree on a mediator. If the parties cannot agree on a mediator, then each party will select a mediator
and the two mediators will select a mediator for the parties. The selection of
mediator made by the two mediators who are selected by the parties are binding on the parties. At the conclusion of the mediation, at the time the mediator declares an impasse, or at the time the parties execute a final settlement agreement between the parties, whichever occurs first, the parties will be
deemed to have complied with the requirements of this section. Each party
agrees to bear its own costs in mediation 8.5 Assignment. This Agreement is binding on the heirs, successors and assigns of the parties hereto. This Agreement may not be sold, assigned, pledged,
subcontracted, transferred or otherwise conveyed by any means whatsoever by
either the City or Provider without prior written consent of the other, and any sale, assignment, pledge, subcontract, transfer or other conveyance by either party without the other party’s prior written consent shall be null and void.
8.6 Conflict of Interest. Provider covenants that Provider presently has no interest and
shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of the work and services required to be performed under this Agreement. Provider further covenants that in the performance of this Agreement, Provider shall not engage any employee or apprentice having any such
interest.
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8.7 Authority to Contract. The undersigned officers and/or representatives of the
parties hereto are the properly authorized persons and have the necessary
authority to execute this Agreement on behalf of the parties hereto, and each party hereby certifies to the other that it has taken all actions necessary to authorize entering into this Agreement.
8.8 Integration; Modification. This Agreement represents the entire understanding of
City and Provider as to those matters contained in this Agreement, and no prior oral or written understanding shall be of any force or effect with respect to those matters. This Agreement may not be modified or altered except in writing signed by duly authorized representatives of the parties.
8.9 Non-appropriation. If the City Council does not appropriate funds to continue this
Contract and pay for charges hereunder, the City may terminate this Agreement at the end of the then current fiscal year, or at the time that funds are no longer available to meet the City’s payment obligations hereunder. The City agrees to give written notice of termination to the Provider at least sixty (60) days prior to
any termination for non-appropriation of funds and will pay the Provider in
accordance with this Agreement through the date of termination of this Agreement. 8.10 Subcontractors. This Agreement or any portion hereof shall not be sub-
contracted without the prior approval of the City. No subcontractor shall, under
any circumstances, relieve Provider of its liability and obligation under this Agreement. The City shall deal through Provider and any subcontractor shall be dealt with as a worker and representative of Provider. Provider assumes responsibility to the City for the proper performance of the work and service of all
subcontractors and any acts and omissions in connection with such performance.
Nothing in this Agreement shall, or is intended or deemed to, create any legal, contractual or other relationship between the City and any subcontractor or sub-subcontractor.
8.11 No Waiver. The failure by the City to exercise any right, power, or option given to
it by this Agreement, or to insist upon strict compliance with the terms of this Agreement, shall not constitute a waiver of the terms and conditions of this Agreement for any reason whatsoever, including with respect to any such right, power or option or to such compliance or to any other or subsequent default or breach hereof, nor a waiver by the City of its rights at any time to exercise any
such right, power or option or to require exact and strict compliance with all the terms hereof. Any rights and remedies the City may have arising out of this Agreement shall survive the cancellation, expiration or termination of this Agreement.
8.12 No Third Party Beneficiaries. This Agreement and all of its provisions are solely for the benefit of Provider and the City and are not intended to and shall not create or grant any rights, contractual or otherwise, to any third person or entity.
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8.13 “Includes”. For purposes of this Agreement, "includes" and "including" are terms of enlargement and not of limitation or exclusive enumeration, and use of the
terms does not create a presumption that components not expressed are
excluded. 8.14 Incorporation of Recitals and Exhibits. The Exhibits and Recitals to this Agreement are incorporated herein and made a part hereof for all purposes.
9. DISCLOSURE OF AGREEMENT; INTERLOCAL ARRANGEMENTS. 9.1 Disclosure of Agreement Terms. The terms and conditions of this Agreement may be disclosed by either party to other public agencies for the purpose of such
other agencies purchasing services under this Agreement pursuant to an
interlocal or cooperative arrangement with the City. In addition, Provider may disclose the terms and conditions of this Agreement in an effort to show that the terms offered to another public agency are fair and reasonable or to determine the best value. It is understood that the Provider shall not be precluded from
disclosing the terms and conditions of its form of Service Agreement to any other
third party at Swagit’s sole discretion and for any reason. 9.2 Included Parties; Interlocal Agreement. Pursuant to any interlocal, intergovernmental, or other such cooperative agreement with the City, Provider
will accept orders from, and will furnish the Provider’s Software, Hardware,
Professional Services, and Managed Services as outlined in the Proposal to any governmental agency or other public entity authorized by the City to use the Proposal, based upon substantially the same terms and conditions of this Agreement, with the exception of price schedules.
9.3 Political Subdivision Participation. The Provider agrees to supply, sell, and contract separately with other similar or related political subdivisions (i.e., colleges, school districts, counties, cities, etc.) of the City, based upon substantially the same terms and conditions of this Agreement, with the
exception of price schedules, in an effort to establish the terms and conditions as
fair and reasonable. 9.4 Public Records Act. Provider acknowledges that the City of Carlsbad is a governmental agency and may be required to disclose certain information,
including this Agreement, under a request made pursuant to the provisions of the
California Public Records Act (California Government Code sections 6250 – 6270.5). 10. DURATION
This Agreement shall become effective upon the date written below, any prior or previous Agreements between the parties will terminate and the terms of this Agreement shall control and continue in force for an initial term of thirty-six (36) months, unless sooner terminated as provided above. All pricing is to remain firm during the contract period.
The City shall have two (2) one-year renewal options to extend, which shall be
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exercised in the City’s sole discretion. The City shall provide written notice of its intent to extend not less than sixty (60) days prior to the end of the then current term, unless previously terminated by either party.
11. SURVIVAL OF COVENANTS Any of the representations, warranties, covenants, and obligations of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the
termination of this Agreement shall survive termination. 12. COUNTERPARTS; EXECUTION OF AGREEMENT 12.1 Counterparts. This Agreement may be executed in counterparts. Each of the
counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one and the same instrument. 12.2 Execution of Agreement. The City shall first sign this Agreement in one or more
counterparts and deliver them to Provider. This Agreement shall not be effective
until Provider accepts and signs this Agreement in one or more counterparts at its corporate offices in Dallas, Texas, and delivers to the City a counterpart of this Agreement signed by the City and Provider.
City of Carlsbad Swagit Productions, LLC
Geoff Patnoe, Assistant City Manager Bryan R. Halley, President
Attest:
City Clerk
Approved as to form:
City Attorney Date of Execution:
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for City of Carlsbad 7/15/2021
for
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Scope of Services – Exhibit A
EASE Solution
Built upon years of industry experience, Extensible Automated Streaming Engine (EASE) is a software framework
comprised of foundation and extension modules that work together to automate many otherwise manually
intensive tasks. This completely hands-off solution meets the current and future needs of your entity without
creating any additional work for clerks or webmasters.
• Video Capture and Encoding
EASE Encoder records content according to your broadcast schedule and transfers the recorded
audio/video to the Swagit Content Network via a secure Virtual Private Network (VPN) connection,
making it available for live and/or on-demand streaming.
• Indexing and Cross Linking
Using your published meeting agendas as a guide, Swagit’s Managed Service Division (SMSD) indexes the
meetings without any work from the staff. SMSD will annotate your content by adding jump-to points
with specific item headings, giving users the greatest flexibility to find the specific content they need.
With these jump-to points, users can step through video by searching for or clicking specific items.
• Agenda Management Integration
If meeting packets or other related information are available online, SMSD will link them directly to the
video player for easy access.
Swagit’s EASE solution integrates with all Document/Agenda Management solutions.
• Archiving
Client audio/video can be stored securely on the Swagit Content Network indefinitely. Fault tolerance
and high availability is assured through replication of audio/video content to multiple, geographically
redundant, Storage Area Networks (SAN). Our standard packages include unlimited storage for meetings
and special content.
• Presentation
By navigating through the video library, end users can view a list of meetings chronologically and once
in a selected meeting end users can unleash the power of the jump-to markers to search for specific
points within individual audio/video clips.
• Delivery
In order to deliver on-demand content to end users in a format that is native to their computer’s
operating system, Swagit can deliver content in all major streaming video formats: HTML5, Flash,
Windows Media, QuickTime and Real. Swagit is proud to support HTML5 and Flash as its default
formats, which has proven itself as the format of choice from such vendors as YouTube, Google Video,
Facebook, ABC and NBC/Universal.
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12801 N. Central Expressway, Suite 900 · Dallas, TX 75243 · 214-432-5905 · www.swagit.com
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EASE Solution
• Monitoring
Swagit is monitoring all aspects of the Swagit Content Network to ensure its health and availability. This
monitoring extends to cover remote Swagit EASE Encoders deployed on client premises. In the rare
event of trouble our engineers are promptly notified so that they may dispatch a swift response in
accordance with our support procedures.
• Statistics
Swagit collates log files from our streaming servers monthly and processes them with the industry
recognized Google Analytics. Google Analytics generates reports ranging from high-level, executive
overviews to in depth quality of service statistics. These reports help to highlight growth trends and
identify popular content.
• Support
Beyond our proactive monitoring and response, Swagit offers ongoing, 24/7 technical support for any
issues our clients may encounter. While our choice of quality hardware vendors and a thorough pre-
installation testing phase go a long way toward ensuring trouble free operation of our EASE Encoders,
we do recognize that occasionally unforeseen issues arise. In the event that our engineers detect a fault,
they will work to diagnose the issue. If necessary, next business day replacement of parts will be
completed. Swagit offers continual software updates and feature enhancements to our services and
products for the life of your managed services contract.
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12801 N. Central Expressway, Suite 900 · Dallas, TX 75243 · 214-432-5905 · www.swagit.com
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Investment-Streaming Video
Streaming Video Hardware
Item Description Type Up-front Cost
Hardware/Software/Provisioning 1U N/A
City already has a Swagit EASE H Encoder delivered in August 2017. Swagit warranty provides coverage on
existing hardware with respect to the August 2017 delivery date.
Streaming Video Monthly Managed Services
Item Description Monthly Cost
Package 5: Up To 150 Indexed Meetings per year (EASE) - Includes Media On-
Demand, 24/7 LIVE Stream, Sound Search and up to 120 hours of additional
specialty content per year (No staff involvement—Hands Free).
Includes: Video on-demand closed captioning for 150 meetings per year, with a
VOD captions turnaround time of 4-5 business days from the end of the meeting.
$6,395.00
Optional Services/Overages/Individual Pricing
Item Description Cost
Each Additional Indexed On-Demand Meeting $150.00
Each Additional Captioned Meeting $325.00
Programming, Development or Design Implementation $120.00/hour
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granicus.com
December 6, 2022
Dear Customer,
On October 12th, 2022 Granicus, the leading provider of cloud-based government transparency, legislative management,
and digital marketing solutions for government agencies across North America and the United Kingdom, completed the
acquisition of Rock Solid. Granicus and Rock Solid share a long commitment of developing and growing digital
modernization capabilities that streamline government operations, enhance transparency, and drive a more accessible legislative process that leads to engaged communities and increased trust.
Your current partner will continue to hold your contract and provide the high level of service you have come to expect, however, we are excited to extend the payment and billing services provided by Granicus’ billing department to Rock Solid customers. In addition, we would like to take the opportunity to provide updated certificates of insurance and vendor tax forms as may be required to update Rock Solid in your vendor records.
To that end, please update your records to reflect the new payment information below along with a Granicus W-9 and COI on pages 2 and 3.
Payments via check can be directed to:
Granicus Dept CH – Box 19634
Palatine, IL 60055 - 9634
Payments via ACH can be directed to:
Routing #: 022000020 Account #: 269099115
If you have any questions regarding payments, tax exemption certificates or billing, please contact ar@granicus.com. For contract, certificates of insurance and vendor registration questions, please submit your inquiry to contracts@granicus.com.
We welcome you to the Granicus family! Please do not hesitate to contact your account manager if you have any questions or concerns.
Sincerely,
Raj Amin CFO, Granicus
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Form W-9
(Rev. October 2018)
Department of the Treasury Internal Revenue Service
Request for Taxpayer
Identification Number and Certification
▶Go to www.irs.gov/FormW9 for instructions and the latest information.
Give Form to the
requester. Do not
send to the IRS.
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3
.
1 Name (as shown on your income tax return). Name is required on this line; do not leave this line blank.
2 Business name/disregarded entity name, if different from above
3 Check appropriate box for federal tax classification of the person whose name is entered on line 1. Check only one of the
following seven boxes.
Individual/sole proprietor or
single-member LLC
C Corporation S Corporation Partnership Trust/estate
Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=Partnership) ▶
Note: Check the appropriate box in the line above for the tax classification of the single-member owner. Do not check
LLC if the LLC is classified as a single-member LLC that is disregarded from the owner unless the owner of the LLC is
another LLC that is not disregarded from the owner for U.S. federal tax purposes. Otherwise, a single-member LLC that
is disregarded from the owner should check the appropriate box for the tax classification of its owner.
Other (see instructions) ▶
4 Exemptions (codes apply only to
certain entities, not individuals; see
instructions on page 3):
Exempt payee code (if any)
Exemption from FATCA reporting
code (if any)
(Applies to accounts maintained outside the U.S.)
5 Address (number, street, and apt. or suite no.) See instructions.Requester’s name and address (optional)
7 List account number(s) here (optional)
Part I Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid
backup withholding. For individuals, this is generally your social security number (SSN). However, for a
resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other
entities, it is your employer identification number (EIN). If you do not have a number, see How to get a
TIN, later.
Note: If the account is in more than one name, see the instructions for line 1. Also see What Name and
Number To Give the Requester for guidelines on whose number to enter.
Social security number
––
or
Employer identification number
–
Part II Certification
Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and
2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal RevenueService (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I amno longer subject to backup withholding; and
3. I am a U.S. citizen or other U.S. person (defined below); and
4. The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct.
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later.
Sign Here Signature of
U.S. person ▶Date ▶
General Instructions
Section references are to the Internal Revenue Code unless otherwise
noted.
Future developments. For the latest information about developments
related to Form W-9 and its instructions, such as legislation enacted
after they were published, go to www.irs.gov/FormW9.
Purpose of Form
An individual or entity (Form W-9 requester) who is required to file an
information return with the IRS must obtain your correct taxpayer
identification number (TIN) which may be your social security number
(SSN), individual taxpayer identification number (ITIN), adoption
taxpayer identification number (ATIN), or employer identification number
(EIN), to report on an information return the amount paid to you, or other
amount reportable on an information return. Examples of information
returns include, but are not limited to, the following.
• Form 1099-INT (interest earned or paid)
• Form 1099-DIV (dividends, including those from stocks or mutual
funds)
• Form 1099-MISC (various types of income, prizes, awards, or gross
proceeds)
• Form 1099-B (stock or mutual fund sales and certain other
transactions by brokers)
• Form 1099-S (proceeds from real estate transactions)
• Form 1099-K (merchant card and third party network transactions)
• Form 1098 (home mortgage interest), 1098-E (student loan interest),
1098-T (tuition)
• Form 1099-C (canceled debt)
• Form 1099-A (acquisition or abandonment of secured property)
Use Form W-9 only if you are a U.S. person (including a resident
alien), to provide your correct TIN.
If you do not return Form W-9 to the requester with a TIN, you might
be subject to backup withholding. See What is backup withholding,
later.
Cat. No. 10231X Form W-9 (Rev. 10-2018)
GRANICUS LLC
4
4 P
408 SAINT PETER STREET, SUITE 600
6 City, state, and ZIP codeSAINT PAUL MN 55102
4 1 1 9 4 1 0 8 8
1/3/2023
Remit Payment To Address;
Dept CH - Box 19634
Palatine, IL 60055-9634 SAINT PAUL MN 55102
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Administrative Services
Information Technology
1635 Faraday Ave. Carlsbad, CA ZIP code 760-602-2450 t
Memorandum
July 31, 2023
To: Geoff Patnoe, Assistant City Manager
From: Maria Callander, Director of IT
Zack Korach, Acting Deputy City Manager, Administrative Services
Re: Assignment & Assumption Agreement with Granicus, LLC for Swagit
Productions, LLC for video streaming of Public Meetings.
This memorandum provides an explanation of the assignment and assumption agreement with
Granicus, LLC due to their purchase of Swagit Productions, LLC for video streaming services for
public meetings with the city.
Background
Swagit Productions, LLC entered into a 3-year agreement with two one-year extension options
with the city on July 15, 2021, for video streaming services for all City Council and Planning
Commission meetings in the amount of $76,740 annually. These services include ‘live’ video
streaming to broadcast and record meetings and ‘on-demand’ video streaming services to
replay past meetings. The ‘on-demand’ streaming services include an index feature for
recorded meetings where residents can search for and replay specific meeting agenda items. A
closed caption feature is also provided. This cost represents video streaming services for 150
meetings per year.
On October 12, 2022 Granicus, LLC purchased Rock Solid of which Swagit is a subdivision of. In
order to execute the remaining years of the agreement signed with Swagit on July 15, 2021 the
city needs to execute an assignment & assumption agreement with Granicus.
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Geoff Patnoe, Assistant City Manager
July 19, 2023
Page 2
Fiscal Impact
Funding for the annual costs associated with streaming board, commission and council
meetings was included in the FY 2023-24 annual budget request from the Communications
Department using Public, Educational and Government (PEG) funds.
Next Steps
Once the assignment & assumption agreement is executed staff will be able to process the
annual billing for the video streaming services for public meetings.
Attachments: A. Granicus, LLC Assignment & Assumption Agreement
B. Swagit Productions, LLC Agreement
C. Granicus, LLC Purchase Memo
cc: Brent Gerber, IT Dept. Senior Management Analyst
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To whom it may concern:
19346679.
The above inbox is for automating electronic delivery of certificates only. Please do NOT send
future certificate requests to this inbox.
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in rem
in personam
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AGREEMENT FOR VIDEO STREAMING SERVICES CITY OF CARLSBAD and SWAGIT PRODUCTIONS, LLC _________________________________ This Agreement for Video Streaming Services (“Agreement”) is made by and between the City of Carlsbad, California (“City”), a municipal corporation with offices at 1200 Carlsbad Village Drive, Carlsbad, San Diego County, California 92008, and Swagit Productions, LLC, (“Provider”) a Texas Limited Liability Company, with offices at 12801 North Central Expressway, Suite 900, Dallas, Texas 75243 effective as of the date written
below. RECITALS
A. The City desires to enter into this Agreement in order to obtain video streaming services for scheduled meetings as outlined in the Scope of Services attached as Exhibit “A”; and
B. Provider has available and offers to provide the personnel necessary to provide
said services in accordance with the attached Exhibit A - Scope of Services included in this Agreement; and
C. Provider is in the business of providing video streaming services for businesses and governmental entities, and represents and warrants that it has the skills, qualifications, expertise and experience necessary to perform the work and
services to provide and implement video streaming services as described herein in an efficient, cost-effective manner with a high degree of quality and responsiveness and has performed and continues to perform the same and similar services for other buyers; and
D. On the basis of and in reliance upon such representations by Provider and others
made herein and in Provider’s proposal, the City desires to engage Provider to provide the work and services described herein under the terms and conditions of this Agreement.
For the reasons recited above, and in consideration of the mutual covenants contained in this Agreement, and other valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the City and Provider agree as follows:
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1. SERVICES TO BE PERFORMED BY PROVIDER
Provider agrees to perform the following work and services for the City: 1.1 Provider agrees to provide the work and services as set forth in Exhibit A - Scope of Services, attached hereto and incorporated herein.
2. COMPENSATION OF PROVIDER
2.1 Provider agrees to provide all of the services and equipment set forth in the Scope of Services and as described herein for the following amounts:
(a) The City shall pay to Provider a monthly fee in the amount of Six Thousand Three Hundred Ninety-Five and No/100 Dollars ($6,395.00) for on-
demand video streaming, live video streaming, sound search and video on-demand closed captions (as further described in Exhibit “A”, page 3, “Streaming Video Monthly Managed Services”).
2.2 Except as set forth herein, payments will be processed on a monthly basis, unless annual billing has been requested, with payment available within 30 days after
receipt of an invoice for the previous month’s service. All payments pursuant to this Agreement shall be made promptly and without undue delay, and in no circumstance beyond 60 days from the due date.
2.3 Should the City fail to pay any invoice that is outstanding more than 60 days, a 5% service fee will be applied to the total amount of that invoice, not including any
shipping or sales tax.
3. RIGHTS, OBLIGATIONS AND REPRESENTATIONS OF PROVIDER
3.1 Independent Contractor. The parties agree that Provider performs specialized services and that Provider enters into this Agreement with the City as an
independent contractor. Nothing in this Agreement shall be construed to
constitute Provider or any of Provider’s agents or employees as an agent, employee or representative of the City. Further, nothing in this Agreement is intended nor shall be construed to create an employer-employee relationship, a joint venture relationship, a joint enterprise, or to allow the City to exercise
discretion or control over the manner in which Provider performs the work and
services, which are the subject matter of this Agreement. As an independent contractor, Provider is solely responsible for all labor and expenses in connection with this Agreement and for any and all damages arising out of Provider’s performance under this Agreement.
3.2 Provider’s Control of Work. All services to be provided by Provider shall be performed in accordance with the Scope of Services. Provider shall furnish the qualified personnel, materials, equipment and other items necessary to carry out the terms of this Agreement. Provider shall be responsible for and in full control of the work of all such personnel. Provider warrants and represents that all equipment
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and other goods and materials provided by Provider shall be safe, fully operational, and will not cause injury or damage to any person or property, and that all persons provided by Provider to perform the work and services under this Agreement shall
be adequately trained and capable of performing the work and services.
3.3 Reports to the City. Although Provider is responsible for control and supervision of work and services performed under this Agreement, the work and services provided shall be acceptable to the City and shall be subject to a general right of inspection and supervision to ensure satisfactory completion. This right of
inspection and supervision shall include, but not be limited to, all reports to be provided by Provider to the City and the right of the City, as set forth in the Scope of Services.
3.4 Compliance with All Laws. Provider shall comply with all applicable laws, statutes,
ordinances, rules, regulations, standards, codes, and executive orders of the
federal, state and local government, which may affect the performance of this Agreement.
3.5 Organization and Authorization. Provider warrants and represents that: (i) it is a limited liability company duly organized, validly existing and in good standing under
the laws of the State of Texas, and which shall remain in good standing throughout
the term of this Agreement; (ii) it has the requisite power and authority to carry on its business as it is now being conducted; (iii) it has the legal capacity to enter into this Agreement; (iv) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been
authorized and approved by all action required on the part of Provider; (v) has the
right and authority to sell the hardware and software to the City; (vi) all hardware and software shall be in good working order; and, (vii) all licenses and warranties regarding the software and hardware shall be conveyed to the City.
3.6 No Conflict. Provider warrants and represents that the execution and delivery of
this Agreement and ancillary agreements hereto by Provider does and will not: (i)
conflict with, or result in any violation or breach of, any provision of Provider’s charter documents; (ii) result in any violation or breach of, or constitute a default under, or require a consent or waiver under, any of the terms, conditions or provisions of any license, contract or other agreement to which Provider is a party;
or (iii) conflict with or violate any franchise, license, judgment, order, statute, law,
rule or regulation applicable to Provider.
3.7 Warranty. Provider warrants that: (i) any streaming server hardware provided by Swagit (as further described in the Scope of Services, page 3, “Streaming Video
Hardware”) not in good working order and used under normal operating conditions,
will be fully replaced for a period of three (3) years; (ii) thereafter, all costs of
streaming server hardware replacement due to any failure or caused by normal wear and tear, shall be at the City’s expense; (iii) all operating and proprietary software for any streaming server shall be fully replaced or upgraded, at no cost to the City, for the life of the contract; and (iv) in the event of a complete hardware
failure within the warranty period, Provider shall overnight replacement parts and/or
a new server at its sole expense.
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3.8 Provider’s Service Network. Provider’s content delivery network and service level represents that: (i) it maintains full N+1 redundancy on all service critical-
infrastructure in order to protect against outages. Multiple mirror facilities provide
diverse geographic redundancy. Within each facility servers have multiple power supplies, network interfaces and RAID protected storage. Provider is connected to upstream bandwidth providers by multiple gigabit uplinks, transitioning to gigabit and ten-gigabit connections to multiple “tier 1” bandwidth providers, offering route
diversity and redundancy. These bandwidth providers maintain 24/7 staffs familiar
with mitigating Denial of Service attacks, should the need arise, which they have sufficient capacity to absorb-and-filter; (ii) Provider utilizes external, 3rd party monitoring services to track server availability metrics. This service tracks availability from approximately 30 international points which helps isolate regional
networking issues, in addition to any centralized failures; (iii) Content is stored and
viewable to the public on the Provider’s networks indefinitely during the term of the Agreement. All Content is stored and backed up offline indefinitely for the life of the Agreement. Content can also be stored locally on the City’s network for an indefinite period of time limited only by storage capacity, with the added benefit of
cached delivery to local users. City is consulted before they exceed any storage
horizon and may extend the window for additional years; (iv) Content is stored in widely accessible formats and is available for export at any time. Exported data will include multimedia content and associated documents in their native format as well as any structured metadata in XML format. Access to exported content can be via
FTP but in such an event the City is encouraged to provide a portable hard drive to
ease the transition of storage and bandwidth intensive content; and (v) the City may verify compliance with these policies at any time in consultation with Provider engineers and officers.
4. NOTICE PROVISIONS
Notice. Any notice concerning this Agreement shall be in writing and (i) sent by certified or registered mail, return receipt requested, postage prepaid, (ii) delivered personally, or (iii) placed in the custody of Federal Express Corporation or other nationally recognized carrier to be delivered overnight; and addresses for such notice are as follows:
To the City’s Authorized Representative: To Provider:
IT Director
City of Carlsbad
1635 Faraday Avenue Carlsbad, CA 92008 760/602-2454
David Owusu
Director of Streaming
Swagit Productions, LLC 12801 N. Central EXPY., Ste 900 Dallas, Texas 75243 800/573-3160
Notice shall be deemed given upon receipt by the party to whom it is sent.
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5. INDEMNIFICATION
PROVIDER’S INDEMNITY OBLIGATION. PROVIDER COVENANTS, AGREES
TO, AND SHALL DEFEND (WITH COUNSEL REASONABLY ACCEPTABLE TO THE CITY), INDEMNIFY, AND HOLD HARMLESS THE CITY OF CARLSBAD, CALIFORNIA AND THE ELECTED OFFICIALS, THE OFFICERS, EMPLOYEES, REPRESENTATIVES, AND VOLUNTEERS OF THE CITY OF CARLSBAD,
CALIFORNIA, INDIVIDUALLY OR COLLECTIVELY, IN BOTH THEIR OFFICIAL
AND PRIVATE CAPACITIES (THE CITY OF CARLSBAD, CALIFORNIA, AND THE ELECTED OFFICIALS, THE OFFICERS, EMPLOYEES, REPRESENTATIVES, AND VOLUNTEERS OF THE CITY OF CARLSBAD, CALIFORNIA EACH BEING A "CARLSBAD PERSON" AND COLLECTIVELY
THE "CARLSBAD PERSONS"), FROM AND AGAINST ANY AND ALL CLAIMS,
LIABILITIES, JUDGMENTS, LAWSUITS, DEMANDS, HARM, LOSSES, DAMAGES, PROCEEDINGS, SUITS, ACTIONS, CAUSES OF ACTION, LIENS, FEES, FINES, PENALTIES, EXPENSES, OR COSTS, OF ANY KIND AND NATURE WHATSOEVER MADE UPON OR INCURRED BY THE CITY OF
CARLSBAD, CALIFORNIA AND/OR ANY OTHER CARLSBAD PERSON,
WHETHER DIRECTLY OR INDIRECTLY, (THE “CLAIMS”), THAT ARISE OUT OF, RESULT FROM, OR RELATE TO: (I) ANY OF THE WORK AND SERVICES OF THE PROVIDER AS DESCRIBED IN SECTION 1 OF THIS AGREEMENT, (II) ANY REPRESENTATIONS AND/OR WARRANTIES BY
PROVIDER UNDER THIS AGREEMENT, AND/OR (III) ANY ACT OR
OMISSION UNDER, IN PERFORMANCE OF, OR IN CONNECTION WITH THIS AGREEMENT BY PROVIDER, OR BY ANY OF PROVIDER’S OWNERS, DIRECTORS, OFFICERS, SHAREHOLDERS, MANAGERS, PARTNERS, EMPLOYEES, AGENTS, ENGINEERS, ARCHITECTS, CONSULTANTS,
CONTRACTORS, SUBCONTRACTORS, INVITEES, PATRONS, GUESTS,
CUSTOMERS, TENANTS, SUBTENANTS, LICENSEE, SUBLICENSEE, CONCESSIONAIRES, OR ANY OTHER PERSON OR ENTITY FOR WHOM PROVIDER IS LEGALLY RESPONSIBLE, AND THEIR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, SHAREHOLDERS, MANAGERS,
PARTNERS, EMPLOYEES, AGENTS, ENGINEERS, ARCHITECTS,
CONSULTANTS, CONTRACTORS, SUBCONTRACTORS, INVITEES, PATRONS, GUESTS, CUSTOMERS, PROVIDERS, AND CONCESSIONAIRES. SUCH DEFENSE, INDEMNITY AND HOLD HARMLESS SHALL AND DOES INCLUDE CLAIMS ALLEGED OR FOUND TO HAVE BEEN CAUSED IN
WHOLE OR IN PART BY THE NEGLIGENCE OR GROSS NEGLIGENCE OF
ANY CARLSBAD PERSON, OR CONDUCT BY ANY CARLSBAD PERSON THAT WOULD GIVE RISE TO STRICT LIABILITY OF ANY KIND. PROVIDER SHALL PROMPTLY ADVISE THE CITY IN WRITING OF ANY
CLAIM OR DEMAND AGAINST ANY CARLSBAD PERSON RELATED TO OR
ARISING OUT OF PROVIDER'S ACTIVITIES UNDER THIS AGREEMENT AND SHALL SEE TO THE INVESTIGATION AND DEFENSE OF SUCH CLAIM OR DEMAND AT PROVIDER'S SOLE COST AND EXPENSE. THE CARLSBAD PERSONS SHALL HAVE THE RIGHT, AT THE CARLSBAD PERSONS’
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OPTION AND OWN EXPENSE, TO PARTICIPATE IN SUCH DEFENSE WITHOUT RELIEVING PROVIDER OF ANY OF ITS OBLIGATIONS HEREUNDER. THE DEFENSE, INDEMNITY, AND HOLD HARMLESS
OBLIGATIONS SET FORTH HEREIN SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. 6. INSURANCE
Provider and its subcontractors shall procure and maintain in a company or companies lawfully authorized to do business in California and until all of their obligations have been discharged and satisfied (and including during any warranty periods under this Agreement), insurance against claims for injury to persons or damage to property which may arise from or in connection with the performance of the services and work
hereunder by Provider, its agents, representatives, employees or subcontractors. The insurance requirements herein are minimum requirements for this Agreement and in no way limit the indemnity covenants contained in this Agreement. The City in no way warrants that the minimum limits contained herein are sufficient to protect Provider
from liabilities that may arise out of the performance of the services and work under this Agreement by Provider, its agents, representatives, employees or subcontractors and Provider is free to purchase additional insurance as may be determined necessary. A. Minimum Scope and Limits of Insurance. Provider shall provide coverage at least as broad and with limits of liability not less than those stated below.
1. Commercial General Liability - Occurrence Form (Form CG 0001, ed. 10/93 or any replacements thereof) General Aggregate $2,000,000 Products-Completed Operations Aggregate $1,000,000
Personal & Advertising Injury $1,000,000 Each Occurrence $1,000,000 Fire Damage (Any one fire) $ 50,000 Medical Expense (Any one person) Optional (This coverage must be amended to provide for an each-project aggregate limit
of insurance) 2. Workers' Compensation and Employer’s Liability Workers' Compensation Statutory
Employer's Liability: Each Accident $ 500,000
Disease-Each Employee $ 500,000 Disease-Policy Limit $ 500,000 3. Professional Liability $1,000,000
4. Cyber-Liability Each Occurrence $1,000,000 Aggregate $2,000,000
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B. OTHER INSURANCE REQUIREMENTS: The foregoing insurance policies shall be endorsed to contain the following provisions:
1. The City of Carlsbad, its officers, officials, agents, employees and volunteers shall be named as additional insureds with respect to general liability, including liability arising out of activities performed by, or on behalf of, the Provider; products and completed operations of the
Provider, and automobiles owned, leased, hired or borrowed by the
Provider. 2. The Provider's insurance shall contain broad form contractual liability coverage.
3. The City of Carlsbad, its, officers, officials, agents, employees and volunteers shall be additional named insureds to the full limits of liability purchased by the Provider even if those limits of liability are in excess of those required by this Agreement.
4. The Provider's insurance coverage shall be primary insurance with respect to the City, its, officers, officials, agents, and employees (and must be endorsed to read as primary coverage regardless of the application of other insurance). Any insurance or self-insurance
maintained by the City, its officers, officials, agents, employees, or
volunteers shall be in excess to the coverage of the Provider's insurance and shall not contribute to it. 5. The Provider's insurance shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits
of the insurer's liability. 6. Coverage provided by the Provider shall not be limited to the liability assumed under the indemnification provisions of this Agreement.
7. The policies shall contain a waiver of subrogation in favor of the City, its officers, officials, agents, and employees. 8. All liability policies shall contain no cross liability exclusions or insured
versus insured restrictions applicable to the claims of the City of
Carlsbad. 9. All insurance policies shall be endorsed to require the insurer to immediately notify the City of Carlsbad, California of any material
change in the insurance coverage.
10. Provider may maintain reasonable and customary deductibles, subject to approval of the City.
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11. Insurance must be purchased from insurers that are financially acceptable to the City and licensed to do business in the State of California.
6.1 Notice of Cancellation. Each insurance policy required by the insurance provisions of this Agreement shall provide the required coverage and shall not be suspended, voided or canceled, or not renewed, except after sixty (60) days prior written notice has been given to the City, except when cancellation is for non-payment of
premium, then at least ten (10) days prior notice shall be given to the City. Such notice shall be sent directly to:
Risk Manager
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
6.2 Acceptability of Insurers. Insurance shall be placed with insurers duly licensed or authorized to do business in the State of California and with an “A.M. Best” rating
of not less than A- VII, or receiving prior approval by the City. The City in no way
warrants that the above-required minimum insurer rating is sufficient to protect Provider from potential insurer insolvency. All insurance must be written on forms filed with and approved by the California Department of Insurance.
6.3 Verification of Coverage. Prior to commencing work or services, Provider shall
furnish the City with certificates of insurance (ACORD form or equivalent approved by the City) as required by this Agreement (and update the same as needed to comply with this Agreement). The certificates for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf.
Certificates of Insurance shall: 1. List each insurance coverage described and required herein. Such certificates will also include a copy of the endorsements necessary to
meet the requirements and instructions contained herein.
2. Specifically set forth the notice-of-cancellation or termination provisions to the City of Carlsbad.
All certificates and any required endorsements shall be received and approved by the City before work commences. Each insurance policy required by this Agreement
shall be in effect at or prior to commencement of work under this Agreement and
remain in effect for the duration of this Agreement. Failure to maintain the insurance policies as required by this Agreement or to provide evidence of renewal shall constitute a material breach of contract.
All certificates required by this Agreement shall be sent directly to Risk Manager,
City of Carlsbad, 1635 Faraday Avenue, Carlsbad, CA 92008. The City reserves
the right to request and receive within ten (10) days, complete copies of all insurance
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policies (certified to be true and correct by the insurance carrier) required by this Agreement at any time. The City shall not be obligated, however, to review same or to advise Provider of any deficiencies in such policies and endorsements, and such
receipt shall not relieve Provider from, or be deemed a waiver of the City’s right to insist on, strict fulfillment of Provider’s obligations under this Agreement.
6.4 Subcontractors. Providers’ certificate(s) shall include all subcontractors as
additional insureds under its policies or Provider shall furnish to the City separate
certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to the minimum requirements and all provisions identified above.
6.5 Approval. Any modification or variation from the insurance requirements in this
Agreement shall be made by the City’s risk manager, whose decision shall be final. Such action shall not require a formal amendment to this Agreement, but may be made by administrative action.
7. DEFAULT AND TERMINATION 7.1 Events of Default Defined. The following shall be Events of Default under this Agreement:
7.1.1 Any material misrepresentation made by Provider to the City;
7.1.2 Any failure by Provider to perform its obligations under this Agreement including, but not limited to, the following:
7.1.2.1 Failure to commence work at the time(s) specified in this Agreement due to a reason or circumstance within Provider’s
reasonable control;
7.1.2.2 Failure to perform the work with sufficient personnel and equipment or with sufficient equipment to ensure completion of the work within the specified time due to a reason or circumstance within Provider’s reasonable control;
7.1.2.3 Failure to perform the work in a manner reasonably satisfactory to
the City;
7.1.2.4 Failure to promptly correct or re-perform within a reasonable time work that was rejected by the City as unsatisfactory or erroneous;
7.1.2.5 Discontinuance of the work for reasons not beyond Provider’s reasonable control;
7.1.2.6 Failure to comply with a material term of this Agreement, including, but not limited to, the provision of insurance; and
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7.1.2.7 Any other acts specifically stated in this Agreement as constituting a default or a breach of this Agreement.
7.2 Remedies. The following shall be remedies under this Agreement.
7.2.1 Upon the occurrence of any Event of Default, the City may declare Provider in default under this Agreement. The City shall provide written notification of the Event of Default and any intention of the City to terminate this
Agreement. Upon the giving of notice, the City may invoke any or all of the
following remedies: 7.2.1.1 The right to cancel this Agreement as to any or all of the services yet to be performed;
7.2.1.2 The right of specific performance, an injunction or any other
appropriate equitable remedy;
7.2.1.3 The right to monetary damages;
7.2.1.4 The right to withhold all or any part of Provider’s compensation under this Agreement;
7.2.1.5 The right to deem Provider non-responsive in future contracts to be
awarded by the City; and
7.2.1.6 The right to seek recoupment of public funds spent for impermissible purposes.
7.2.2 The City may elect not to declare an Event of Default or default under this
Agreement or to terminate this Agreement upon the occurrence of an Event
of Default. The parties acknowledge that this provision is solely for the benefit of the City, and that if the City allows Provider to continue to provide the Services despite the occurrence of one or more Events of Default, Provider shall in no way be relieved of any of its responsibilities or
obligations under this Agreement, nor shall the City be deemed to waive or
relinquish any of its rights under this Agreement. 7.3 Right to Offset. Any excess costs incurred by the City in the event of termination of this Agreement for default, or in the event the City exercises any of the remedies
available to it under this Agreement, may be offset by use of any payment due for
services completed before termination of this Agreement for default or the exercise of any remedies. If the offset amount is insufficient to cover excess costs, Provider shall be liable for and shall remit promptly to the City the balance upon written demand from the City.
8. GENERAL PROVISIONS
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8.1 Headings. The section and subsection headings contained herein are for convenience only and shall not be used in interpretation of this Agreement and are
not intended to define or limit the scope of any provision of this Agreement.
8.2 Governing Law and Venue. This Agreement shall be governed by and administered and interpreted under the laws of the State of California, without regard to any conflict of laws provisions. Venue for any action, cause or action or proceeding under this Agreement lies exclusively in the State District Court of San
Diego County, California, and the parties agree to submit to the personal and subject matter jurisdiction of said court. 8.3 Severability. The sections, paragraphs, sentences, phrases, words, and all other
provisions of this Agreement are severable, and if any part of this Agreement is
determined by a court of competent jurisdiction to be illegal, unlawful, unconstitutional, or void for any reason, the parties intend that the remaining provisions of this Agreement shall remain in full force and effect unless the stricken provision leaves the remaining Agreement unenforceable.
8.4 Mediation. As a condition precedent to any party to this Agreement filing a lawsuit the parties shall conduct mediation. The parties to this Agreement covenant, agree, warrant, and represent that they will conduct the mediation in good faith seeking to resolve any dispute between the parties prior to filing a
lawsuit. The parties further covenant, agree, warrant, and represent that should
a party file a lawsuit without first attending a mediation, the non-filing party shall be entitled to abate the lawsuit until such time as the parties have conducted a mediation. The parties will make a good faith attempt to agree on a mediator. If the parties cannot agree on a mediator, then each party will select a mediator
and the two mediators will select a mediator for the parties. The selection of
mediator made by the two mediators who are selected by the parties are binding on the parties. At the conclusion of the mediation, at the time the mediator declares an impasse, or at the time the parties execute a final settlement agreement between the parties, whichever occurs first, the parties will be
deemed to have complied with the requirements of this section. Each party
agrees to bear its own costs in mediation 8.5 Assignment. This Agreement is binding on the heirs, successors and assigns of the parties hereto. This Agreement may not be sold, assigned, pledged,
subcontracted, transferred or otherwise conveyed by any means whatsoever by
either the City or Provider without prior written consent of the other, and any sale, assignment, pledge, subcontract, transfer or other conveyance by either party without the other party’s prior written consent shall be null and void.
8.6 Conflict of Interest. Provider covenants that Provider presently has no interest and
shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of the work and services required to be performed under this Agreement. Provider further covenants that in the performance of this Agreement, Provider shall not engage any employee or apprentice having any such
interest.
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8.7 Authority to Contract. The undersigned officers and/or representatives of the
parties hereto are the properly authorized persons and have the necessary
authority to execute this Agreement on behalf of the parties hereto, and each party hereby certifies to the other that it has taken all actions necessary to authorize entering into this Agreement.
8.8 Integration; Modification. This Agreement represents the entire understanding of
City and Provider as to those matters contained in this Agreement, and no prior oral or written understanding shall be of any force or effect with respect to those matters. This Agreement may not be modified or altered except in writing signed by duly authorized representatives of the parties.
8.9 Non-appropriation. If the City Council does not appropriate funds to continue this
Contract and pay for charges hereunder, the City may terminate this Agreement at the end of the then current fiscal year, or at the time that funds are no longer available to meet the City’s payment obligations hereunder. The City agrees to give written notice of termination to the Provider at least sixty (60) days prior to
any termination for non-appropriation of funds and will pay the Provider in
accordance with this Agreement through the date of termination of this Agreement. 8.10 Subcontractors. This Agreement or any portion hereof shall not be sub-
contracted without the prior approval of the City. No subcontractor shall, under
any circumstances, relieve Provider of its liability and obligation under this Agreement. The City shall deal through Provider and any subcontractor shall be dealt with as a worker and representative of Provider. Provider assumes responsibility to the City for the proper performance of the work and service of all
subcontractors and any acts and omissions in connection with such performance.
Nothing in this Agreement shall, or is intended or deemed to, create any legal, contractual or other relationship between the City and any subcontractor or sub-subcontractor.
8.11 No Waiver. The failure by the City to exercise any right, power, or option given to
it by this Agreement, or to insist upon strict compliance with the terms of this Agreement, shall not constitute a waiver of the terms and conditions of this Agreement for any reason whatsoever, including with respect to any such right, power or option or to such compliance or to any other or subsequent default or breach hereof, nor a waiver by the City of its rights at any time to exercise any
such right, power or option or to require exact and strict compliance with all the terms hereof. Any rights and remedies the City may have arising out of this Agreement shall survive the cancellation, expiration or termination of this Agreement.
8.12 No Third Party Beneficiaries. This Agreement and all of its provisions are solely for the benefit of Provider and the City and are not intended to and shall not create or grant any rights, contractual or otherwise, to any third person or entity.
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8.13 “Includes”. For purposes of this Agreement, "includes" and "including" are terms of enlargement and not of limitation or exclusive enumeration, and use of the
terms does not create a presumption that components not expressed are
excluded. 8.14 Incorporation of Recitals and Exhibits. The Exhibits and Recitals to this Agreement are incorporated herein and made a part hereof for all purposes.
9. DISCLOSURE OF AGREEMENT; INTERLOCAL ARRANGEMENTS. 9.1 Disclosure of Agreement Terms. The terms and conditions of this Agreement may be disclosed by either party to other public agencies for the purpose of such
other agencies purchasing services under this Agreement pursuant to an
interlocal or cooperative arrangement with the City. In addition, Provider may disclose the terms and conditions of this Agreement in an effort to show that the terms offered to another public agency are fair and reasonable or to determine the best value. It is understood that the Provider shall not be precluded from
disclosing the terms and conditions of its form of Service Agreement to any other
third party at Swagit’s sole discretion and for any reason. 9.2 Included Parties; Interlocal Agreement. Pursuant to any interlocal, intergovernmental, or other such cooperative agreement with the City, Provider
will accept orders from, and will furnish the Provider’s Software, Hardware,
Professional Services, and Managed Services as outlined in the Proposal to any governmental agency or other public entity authorized by the City to use the Proposal, based upon substantially the same terms and conditions of this Agreement, with the exception of price schedules.
9.3 Political Subdivision Participation. The Provider agrees to supply, sell, and contract separately with other similar or related political subdivisions (i.e., colleges, school districts, counties, cities, etc.) of the City, based upon substantially the same terms and conditions of this Agreement, with the
exception of price schedules, in an effort to establish the terms and conditions as
fair and reasonable. 9.4 Public Records Act. Provider acknowledges that the City of Carlsbad is a governmental agency and may be required to disclose certain information,
including this Agreement, under a request made pursuant to the provisions of the
California Public Records Act (California Government Code sections 6250 – 6270.5). 10. DURATION
This Agreement shall become effective upon the date written below, any prior or previous Agreements between the parties will terminate and the terms of this Agreement shall control and continue in force for an initial term of thirty-six (36) months, unless sooner terminated as provided above. All pricing is to remain firm during the contract period.
The City shall have two (2) one-year renewal options to extend, which shall be
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exercised in the City’s sole discretion. The City shall provide written notice of its intent to extend not less than sixty (60) days prior to the end of the then current term, unless previously terminated by either party.
11. SURVIVAL OF COVENANTS Any of the representations, warranties, covenants, and obligations of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the
termination of this Agreement shall survive termination. 12. COUNTERPARTS; EXECUTION OF AGREEMENT 12.1 Counterparts. This Agreement may be executed in counterparts. Each of the
counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one and the same instrument. 12.2 Execution of Agreement. The City shall first sign this Agreement in one or more
counterparts and deliver them to Provider. This Agreement shall not be effective
until Provider accepts and signs this Agreement in one or more counterparts at its corporate offices in Dallas, Texas, and delivers to the City a counterpart of this Agreement signed by the City and Provider.
City of Carlsbad Swagit Productions, LLC
Geoff Patnoe, Assistant City Manager Bryan R. Halley, President
Attest:
City Clerk
Approved as to form:
City Attorney Date of Execution:
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for
Scope of Services – Exhibit A
EASE Solution
Built upon years of industry experience, Extensible Automated Streaming Engine (EASE) is a software framework
comprised of foundation and extension modules that work together to automate many otherwise manually
intensive tasks. This completely hands-off solution meets the current and future needs of your entity without
creating any additional work for clerks or webmasters.
• Video Capture and Encoding
EASE Encoder records content according to your broadcast schedule and transfers the recorded
audio/video to the Swagit Content Network via a secure Virtual Private Network (VPN) connection,
making it available for live and/or on-demand streaming.
• Indexing and Cross Linking
Using your published meeting agendas as a guide, Swagit’s Managed Service Division (SMSD) indexes the
meetings without any work from the staff. SMSD will annotate your content by adding jump-to points
with specific item headings, giving users the greatest flexibility to find the specific content they need.
With these jump-to points, users can step through video by searching for or clicking specific items.
• Agenda Management Integration
If meeting packets or other related information are available online, SMSD will link them directly to the
video player for easy access.
Swagit’s EASE solution integrates with all Document/Agenda Management solutions.
• Archiving
Client audio/video can be stored securely on the Swagit Content Network indefinitely. Fault tolerance
and high availability is assured through replication of audio/video content to multiple, geographically
redundant, Storage Area Networks (SAN). Our standard packages include unlimited storage for meetings
and special content.
• Presentation
By navigating through the video library, end users can view a list of meetings chronologically and once
in a selected meeting end users can unleash the power of the jump-to markers to search for specific
points within individual audio/video clips.
• Delivery
In order to deliver on-demand content to end users in a format that is native to their computer’s
operating system, Swagit can deliver content in all major streaming video formats: HTML5, Flash,
Windows Media, QuickTime and Real. Swagit is proud to support HTML5 and Flash as its default
formats, which has proven itself as the format of choice from such vendors as YouTube, Google Video,
Facebook, ABC and NBC/Universal.
DocuSign Envelope ID: 5B646C92-9AA9-4E9A-A409-7FF3DAAE9E01
12801 N. Central Expressway, Suite 900 · Dallas, TX 75243 · 214-432-5905 · www.swagit.com
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EASE Solution
• Monitoring
Swagit is monitoring all aspects of the Swagit Content Network to ensure its health and availability. This
monitoring extends to cover remote Swagit EASE Encoders deployed on client premises. In the rare
event of trouble our engineers are promptly notified so that they may dispatch a swift response in
accordance with our support procedures.
• Statistics
Swagit collates log files from our streaming servers monthly and processes them with the industry
recognized Google Analytics. Google Analytics generates reports ranging from high-level, executive
overviews to in depth quality of service statistics. These reports help to highlight growth trends and
identify popular content.
• Support
Beyond our proactive monitoring and response, Swagit offers ongoing, 24/7 technical support for any
issues our clients may encounter. While our choice of quality hardware vendors and a thorough pre-
installation testing phase go a long way toward ensuring trouble free operation of our EASE Encoders,
we do recognize that occasionally unforeseen issues arise. In the event that our engineers detect a fault,
they will work to diagnose the issue. If necessary, next business day replacement of parts will be
completed. Swagit offers continual software updates and feature enhancements to our services and
products for the life of your managed services contract.
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12801 N. Central Expressway, Suite 900 · Dallas, TX 75243 · 214-432-5905 · www.swagit.com
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Investment-Streaming Video
Streaming Video Hardware
Item Description Type Up-front Cost
Hardware/Software/Provisioning 1U N/A
City already has a Swagit EASE H Encoder delivered in August 2017. Swagit warranty provides coverage on
existing hardware with respect to the August 2017 delivery date.
Streaming Video Monthly Managed Services
Item Description Monthly Cost
Package 5: Up To 150 Indexed Meetings per year (EASE) - Includes Media On-
Demand, 24/7 LIVE Stream, Sound Search and up to 120 hours of additional
specialty content per year (No staff involvement—Hands Free).
Includes: Video on-demand closed captioning for 150 meetings per year, with a
VOD captions turnaround time of 4-5 business days from the end of the meeting.
$6,395.00
Optional Services/Overages/Individual Pricing
Item Description Cost
Each Additional Indexed On-Demand Meeting $150.00
Each Additional Captioned Meeting $325.00
Programming, Development or Design Implementation $120.00/hour
DocuSign Envelope ID: 5B646C92-9AA9-4E9A-A409-7FF3DAAE9E01
To the members of the:
CITY COUNCIL
Date %ri:11 CA ✓ CC ✓
CM ~ ✓DCM{3) ✓ ~-~
Feb.25,2021
Council Memorandum
To:
From:
Via:
Re:
Honorable Mayor Hall and Members ofthe City Council
Faviola Medina, City Clerk Services Ma~a er
Geoff Patnoe, Assistant City Manager ~
Board & Commission Meetings {Distri ? All)
{city of
Carlsbad
Memo ID #2021051
This memorandum provides an update to the minute motion from Nov. 12, 2019, requesting
staff develop a procedure to conduct board and commission meetings in the same manner as
City Council meetings, as well as develop an archive of the meeting proceedings.
Background
On Nov. 12, 2019, City Council directed staff to establish a plan to create a permanent record of
video or audio of board and commission meetings. The city has 15 boards and commissions that
hold a combined total of approximately 150 meetings a year. Historically, only the City Council
and Planning Commission meetings have been streamed live on the city's website. Only the City
Council meetings have been broadcast live on the city's cable channel.
Following the unanimous approval of the Nov. 12, 2019, minute motion, staff began exploring
options for livestreaming all board and commission meetings. The COVID-19 public health
emergency has since required temporary changes to how the city conducts all public meetings.
Due to social distancing requirements, all meetings are now held online via Zoom. The discussion
below presents the plan established for meeting the original goal of increasing transparency and
public involvement at all board and commission meetings.
Discussion
The city's board, commission and various other public meetings are critical to maintaining an
effective and responsive local government. New technologies enable the city to hold meetings in
a manner that facilitates increased public access and participation. Restrictions on in person
meetings due to COVID-19 have accelerated the adoption of these technologies to the point
where they can be considered for a broader use.
Some of the goals staff considered when developing options for on line streaming of board and
commission meetings during the COVID-19 public health emergency included:
• Provide a convenient and consistent user experience across all city meetings.
• Present meetings in a professional manner that builds public confidence.
Policy & Leadership
City Clerk Department
1200 Carlsbad Village Drive I Carlsbad, CA 92008 I 760-434-5989 t
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Council Memo - B.oard & Commission Meetings (Districts -All)
Feb. 25,2021
Page 2
• Create a process that can be easily replicated by more than a dozen staff who manage
and administer city boards and commissions.
• Make prudent use of public resources.
• · Maintain proper cyber security/prevent meeting disruption from hackers.
• Maintain a record of meeting videos that can be easily referenced later.
Throughout the COVID-19 pandemic, staff has been utilizing the Zoom meeting platform along
with a livestream device to livestrear:n board and commission meetings. However, the platform
used does not have the functionality as that being used for City Council and Planning Commission
meetings. For instance, the agenda is not linked to the video for ease of playback and the video
archive is not in the same location as the City Council and Planning Commission meetings.
Since the COVID-19 pandemic has continued longer than staff had originally anticipated, staff are
now going to transition the board and commission meetings one by one to the same virtual
format as the City Council meetings, which is the Zoom webinar format. This will allow for public
participation to occur via telephone as it does with the City Council meetings. Staff estimates
that it will cost approximately $42,000 to obtain all the necessary licenses to conduct the
meetings utilizing the Zoom webinar format. Funding for managing public meetings with Zoom
during the COVID-19 pandemic was approved in the fiscal year 2020-21 Budget, within the
Innovation Fund. As part of the fiscal year 2021-22 Budget, staff will be requesting ongoing
funding for the use of Zoom for public meetings and training classes.
As part of the fiscal year 2021-22 Budget, staff will be requesting funding in the amount of
approximately $76,740 to accommodate moving all board and commission meetings to the same
livestream provider (Swagit) as City Council and Planning Commission meetings. This will provide
one location and consistent functionality across all city meetings. The following are some
features of that platform:
• A central location where people can watch the meeting live and after that fact.
• The ability to retrieve specific video segments by clicking on the corresponding agenda
item.
• A feature that lets viewers of the archived video find clips based on a keyword search.
• Closed captioning for the archived video.
The Information Technology {IT) Department contracts with AVI to provide technical support for
all public meetings. Prior to the COVID-19 pandemic, AVI provided support for only the City
Council and Planning Commission meetings. When the other boards and commissions shifted to
the Zoom platform, extended AVI support for those meetings was required in order to manage
the tools that stream the meetings to the city's website. Funding for extended AVI support
during the COVID-19 pandemic was approved in the fiscal year 2020-21 Budget, within the
Innovation Fund. AVI support will continue to be required once all board and commission
meetings are back in person and live streamed on the city's website and broadcast on the city's
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Council Memo -Board & Commission Meetings (Districts -All)
Feb.25,2021
Page 3
cable channels. Staff estimates that the costs associated with expanding the AVI contract to
include support for all board and commission meetings will be approximately $35,369 per year.
As part of the fiscal year 2021-22 Budget, staff will be requesting ongoing funding for extended
AVI support.
When meetings are permitted to be conducted in-person once again, the Communications
Department will contract with a videographer service for all board and commission meetings to
ensure the same quality of livestream and broadcast as the City Council meetings. The estimated
cost to provide th~t service for all board and commission meetings is $60,000.
Fiscal Impact
Funding for the costs associated with transitioning boards and commission meetings to a virtual
format throughout the COVID-19 pandemic has been absorbed by the IT Department throughout
fiscal year 2020-21. Funding to livestream, broadcast and archive all board and commission
meetings in the same manner as City Council and Planning Commission meetings will be
requested as part of the fiscal year 2021-22 Budget process.
Next Steps
Staff will continue livestreaming city board and commission meetings during the COVID-19 public
health emergency using the Zoom webinar platform. Beginning in July, staff will transition all
meetings to the Swagit platform that is utilized by the City Council and Planning Commission so
that all meetings are in one location with the increased functionality of agenda accessibility,
tagging and archiving.
cc: Scott Chadwick, City Manager
Celia Brewer, City Attorney
Sheila Cobian, Assistant to the City Manager
Kristina Ray, Communication & Engagement Director
Maria Callander, Information Technology Director
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Administrative Services
Information Technology Department
1635 Faraday Avenue Carlsbad, CA ZIP 92008 760-602-2450
Memorandum
June 7, 2021
To: Roxanne Muhlmeister, Purchasing Officer
From: Ruthann Pearlman, IT Client Services Manager
Via: Maria Callander, IT Director
Re: Request for Exemption of Competitive Bidding for Swagit Productions, LLC.
The purpose of this letter is to request authorization of an exemption to the bidding process
per Purchasing Code 3.28.110 (N) Exemptions. This code provides a bidding exemption for
professional services when solicitations of bids are not in the best interests of the city.
Staff currently retains the services of Swagit Productions, LLC. to provide professional
multimedia services that include live video streaming broadcasts, on-demand video indexing
and archiving (storage) services for all City Council and Planning Commission meetings. The city
wishes to expand the use of Swagit services to include broadcasting of all boards and
commissions meetings (See Attachment A). The additional services results in a total annual
agreement cost of up to $111,540. The city’s procurement rules state that any procurement of
professional services over $30,000 require a formal bidding process. Staff is seeking approval
from the Purchasing officer for an exemption to the bidding process.
Swagit Productions has provided professional multimedia services since September 20, 2016. It
is in the best interest of the city to continue with Swagit Productions, LLC for the following
reasons:
1. Fourteen years of previous meetings are stored and available for viewing to the public
on the Swagit platform and it would be a lengthy and costly process to move them to a
new platform. The move to a new platform might also cause a loss in functionality.
2. Carlsbad residents and users of the city’s website are familiar with the Swagit platform.
Continuing to use Swagit will avoid having to require our residents to learn a new
technology and will provide a convenient and consistent viewing experience across all
city meetings.
3. The Swagit platform also provides closed captioning of all meetings without the need to
engage additional third-party resources.
Approval for Exemption
__________________________________ _____________
Roxanne Muhlmeister, Purchasing Officer Date
6/8/2021
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Memo – Swagit Sole Source Request
June 7, 2021
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Attachments:
A. Memo to City Council via Assistant City Manager re: Board and
Commission Meetings, February 25, 2021.
CC: Maria Callander, IT Department Director
Cindie McMahon, Assistant City Attorney
Brent Gerber, Senior Management Analyst
Shea Sainz, Senior Contract Administrator
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Administrative Services
Information Technology
1635 Faraday Ave. Carlsbad, CA ZIP code 760-602-2450 t
Memorandum
July 13, 2021
To: Geoff Patnoe, Assistant City Manager
From: Maria Callander, Director of IT
Re: Professional Services Agreement for Swagit Productions for video streaming of
Public Meetings.
This memorandum provides an explanation of the agreement with Swagit Productions, LLC for
video streaming services for public meetings that will include board, commission and council
meetings.
Background
Swagit Productions LLC is the current provider for video streaming services for all City Council
and Planning Commission meetings. These services include ‘live’ video streaming to broadcast
and record meetings and ‘on-demand’ video streaming services to replay past meetings. The
‘on-demand’ streaming services include an index feature for recorded meetings where
residents can search for and replay specific meeting agenda items. A closed caption feature is
also provided.
This memorandum is a follow up to the memo you received on February 25, 2021 on Boards
and Commission meetings from Faviola Medina, City Clerk Services Manager. (See attachment
“A”). The goal is to provide a convenient and consistent user experience across all city
meetings. To meet that goal, the memo outlined a plan to request funding in the amount of
$76,740 to accommodate moving all board and commission meetings to the same livestream
provider (“Swagit”) as City Council and Planning Commission meetings.
This new agreement is for a three-year term with the option to renew for two one-year terms
for a total of five years. The monthly fee is $6,395 with an annual cost of $76,740. This cost
represents video streaming services for 150 meetings per year.
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Geoff Patnoe, Assistant City Manager
June 24, 2021
Page 2
Fiscal Impact
Funding for the increased costs associated with streaming board, commission and council
meetings is included in the FY 2021-22 Communications supplemental budget request using
Public, Educational and Government (PEG) funds.
Next Steps
Once the agreement is executed staff will begin the process to transition all Board and
Commission meetings to the Swagit platform so that all future meetings are in one archive
location for residents to easily access from the city website. Residents will be able to watch
future archived meetings using the same agenda features and functionality that are currently
available with Council and Planning Commission meetings.
Attachments: A. Memo to Assistant City Manager re: Board and Commission Meetings,
February 25, 2021.
B. Swagit Productions, LLC Agreement
C. Sole Source letter approval from Purchasing Officer
cc: Brent Gerber, IT Dept. Senior Management Analyst
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