HomeMy WebLinkAbout000985 Original Contract City of Port Angeles
Record # 000985
CONTRACT BETWEEN THE CITY OF PORT ANGELES
AND
PENINSULA AREA PUBLIC ACCESS (PAPA)
AGREEMENT
This Agreement is made this day of Rb�QMW , 2015, by and between
the City Of Port Angeles (the "City"), and Peninsula Area Public Access
("PAPA"), a Washington nonprofit corporation, In consideration of the mutual
promises and covenants set forth herein and the performances to be rendered,
the parties recite, covenant, and agree as follows:
SECTION 1. RECITALS
1. The City has granted a franchise to WaveDivision Holdings LLC ("Wave")
to operate a cable television system in the City through City ordinance No.
3138, adopted February 18, 2003, hereafter referred to as the "Franchise."
2. The City desires to provide support for the use of public, educational and
governmental access cable channels provided pursuant to federal law,
and in accordance with the Franchise.
3. The Franchise provides that certain channel capacity (up to 3 channels)
and fiber links shall be made available to the City. Such channel capacity
provided by the Franchise is hereafter referred to as the "Access
Channels."
4. The Franchise provides that certain payments shall be made by the
Franchisee for Access Channel capital equipment and facilities.
5. The City has determined it is in the public interest to activate the
Franchisee's support of Access Channels.
6. The City has selected PAPA as the nonprofit Designated Access Channel
Manager (DACM) to operate and administer the Access Channels,
facilities, services and programming.
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7. PAPA has agreed to serve the City by establishing and managing a
Community Media Center and providing Access programming and
services.
SECTION 2. DESIGNATION OF DACM. The City hereby designates and
appoints PAPA to be the nonprofit Designated Access Channel Manager
(DACM) to manage, operate, and administer the Access Channels, facilities,
services and programming; and to receive from the Franchisee the payments,
resources, and services to be provided by the Franchisee to support Access
Channel uses.
SECTION 3. SCOPE OF SERVICES. In exchange for the resources provided to
it, PAPA shall provide the following services:
A. OPERATE CABLE ACCESS CHANNEL(S). Operate and manage the
cable Access Channel(s) for access programming purposes in a
manner that is consistent with the Cable Franchise Agreement, with
the primary purpose being to manage, administer, coordinate, and
assist those requesting access on a non-discriminatory basis.
B. ESTABLISH AND OPERATE A COMMUNITY MEDIA CENTER.
Establish, operate, and manage a media production facility and
equipment, available for public use at such hours and times as are
determined by PAPA. Access to equipment and facilities shall be open
to all those who: (1) satisfactorily complete required training classes
provided by PAPA; or (2) receive certification from PAPA, identifying
said persons as having satisfied training requirements through other
means.
C. PROVIDE NONDISCRIMINATORY ACCESS. Provide access to the
equipment, facilities, channels, and services provided hereunder on a
non-discriminatory basis to all residents of the City for non-commercial i
programming purposes, whether individuals or organizations, pursuant
to operating rules promulgated by PAPA.
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D. DEVELOP OPERATING POLICIES AND PROCEDURES. Develop
policies and procedures for use and operation of the Access Channel
equipment, facilities, and channels. The policies and procedures shall
be filed with the City and shall be provided to any resident of the City
who requests them.
E. COMPLIANCE WITH LAWS, RULES, AND REGULATIONS.
Administer the Access Channels and facilities in compliance with all
applicable federal, state, and local laws, rules, regulations, and in
compliance with the Cable Franchise Agreement.
F. TRAINING. Train residents of the City and, when requested,
employees of the City and local school or college employees, in the
techniques of media production, and provide technical advice in the
execution of productions.
G. PLAYBACK/CABLECAST. Provide for the playback/cablecasting of
programs on the Access Channels. Within twelve months of the
completion and opening of the media center for use by the public,
PAPA shall cablecast an average of at least four(4) hours per day that
is distinct and non-repetitive, five (5) days per week during any ten (10)
week period in accordance with the Cable Franchise Section 7.2.1..
PAPA shall not edit, revise, or condense any programming provided to
it by an educational or governmental entity; and if PAPA purports to
broadcast a meeting of a governmental entity or agency, it shall
broadcast the entire meeting without interruption or alteration.
H. MAINTENANCE OF EQUIPMENT. Provide regular maintenance and
repair of all equipment purchased with monies received pursuant to
this Agreement and/or donated, loaned, or leased to PAPA by the City.
I. SPECIAL NEEDS GROUPS. Support special needs groups in
program production through training and other means.
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J. PROMOTION. Actively promote the use and benefits of the Access
Channels and facilities to cable subscribers, the public, Access
Channel users, and the Franchisee.
K. OTHER ACTIVITIES. Undertake other Access Channel programming
activities and services as deemed appropriate by PAPA and consistent
with the obligation to facilitate and promote Access programming and
provide non-discriminatory access.
SECTION 4. PUBLIC ACCESS CHANNELS OPEN TO PUBLIC: PAPA agrees
to keep the Access Channel(s) open to all potential users regardless of their
viewpoint, subject the Cable Franchise Agreement, FCC regulations and other
relevant laws. Neither the City, the Franchisee, nor PAPA shall have the
authority to control the content of programming placed on the Access Channel(s)
so long as such programming is lawful. PAPA, the City, or the Franchisee, each
in its sole discretion, may produce or sponsor programming; underwrite
programming; or engage in activities designed to promote production of certain
types of programming or use by targeted groups as consistent with applicable
law and rules for use of the channel(s). PAPA may develop and enforce policies
and procedures which are designed to promote local use of the channel(s) and
make programming accessible to the viewing public, consistent with such time,
place, and manner regulations as are appropriate to provide for and promote use
of Access Channels, equipment and facilities.
SECTION 5. INDEMNIFICATION. PAPA shall indemnify, defend, and hold
harmless the City, its officers, agents, and employees from and against any and
all claims, suits, actions, causes of action, losses, damage, or liabilities of any
kind, nature or description, including payment of litigation costs and attorneys'
fees, brought by any person or persons for or on account of any loss, damage or
injury to person, property or any other interest, tangible or intangible, sustained
by or accruing to any person or persons, howsoever the same may be caused,
directly or indirectly arising or resulting from any alleged acts or omission of
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PAPA, its officers, employees, agents or subcontractors arising out of or resulting
from the performance of this Agreement.
PAPA shall indemnify and hold harmless the City, its officers, agents, employees
and volunteers from and against any and all claims or other injury, including
costs of litigation and attorney's fees, arising from or in connection with claims or
loss or damage to person or property arising out of the failure to comply with any
applicable laws, rules, regulations or other requirements of local, state or federal
authorities, for claims of libel, slander, invasions of privacy, or infringement of
common law or statutory copyright, for breach of contract of other injury or
damage in law or at equity which claims, directly or indirectly, result from PAPA
use of channels, funds, equipment, facilities or staff granted under this
Agreement or franchise agreements between the City and WAVE.
The City shall indemnify, defend, and hold harmless PAPA, its officers, agents
and employees from and against any and all claims, losses, liabilities, or damage
including payment of reasonable attorneys' fees arising out of or resulting from
the City's sole negligence in the performance of this Agreement.
SECTION 6. COPYRIGHT CLEARANCE. Before cablecasting any program
material, PAPA shall require all users (i.e. video content producers) to agree in
writing that they shall make all appropriate arrangements to obtain all rights to all
material cablecast and clearances from broadcast stations, networks, sponsors,
music licensing organizations' representatives, and without limitation from the
foregoing, any and all other persons as may be necessary to transmit their
program material over the Access Channels that are operated and managed by
PAPA. PAPA shall maintain copies of all such user agreements for inspection by
the City, upon reasonable notice, and for the term of the applicable statute of
limitations.
SECTION 7. COPYRIGHT AND OWNERSHIP. PAPA shall own the copyright of
any programs that it may choose from time to time to produce. Copyright of
programming produced by other parties shall be held by the persons who
produced said programming.
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SECTION 8. DISTRIBUTION RIGHTS.
A. PAPA shall require that all programs produced with funds, equipment,
facilities, or staff made available to it pursuant to this Agreement shall
be distributed on the channels whose use is authorized by this
Agreement. This subparagraph shall not be interpreted to restrict
other distribution (beyond distribution on channels authorized by this
Agreement), so long as such other distribution is consistent with any
pertinent guidelines established in the Access Channel operating
policies and procedures.
SECTION 9. EQUIPMENT AND FACILITIES.
A. PAPA shall be responsible for maintenance of all equipment and
facilities donated, leased or loaned to it pursuant to this Agreement or
purchased with funds made available to it pursuant to this Agreement.
B. PAPA, as a corporation, and no one else, shall be the owner of all
equipment and facilities acquired by it and purchased with funds
received pursuant to this Agreement. Upon expiration, termination, or
non-renewal of this Agreement, all equipment or facilities purchased
with funds received pursuant to this Agreement shall become the
property of the City. PAPA shall convey all such assets to the City in
the manner determined by the City, which shall ensure that all such
equipment or facilities shall be used for Access Channel purposes.
To secure all of its obligations under this Agreement, PAPA hereby
grants to the City a security interest in the assets and interests owned
or hereafter acquired by PAPA with funds made available to it pursuant
to this Agreement, and the proceeds thereof, including but not limited
to PAPA deposit accounts, inventory, and all equipment and fixtures
acquired with funds made available to it pursuant to this Agreement.
PAPA agrees to take all steps reasonably requested by the City to
perfect and enforce the security interest of the City, including the
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execution and processing of financing statements and continuation
statements under the Washington Uniform Commercial Code. PAPA
will also notify any institution with which it now or hereafter maintains
any deposit account of the existence of a security interest by the City in
the account in an amount equal to funds acquired under this
agreement.
The City agrees to subordinate its interest if reasonably necessary to
finance the purchase of equipment or property. The subordination
shall only be with respect to the specific equipment or property that
PAPA might wish to finance.
C. Upon the dissolution of PAPA, it shall, subject to the approval of the
City, transfer all assets of PAPA representing equipment and facilities
made available to it pursuant to this Agreement, and/or the proceeds of
either to the City, or at the option of the City, to such organization or
organizations, which shall at the time qualify as a tax exempt
organization(s) under Section 501(c)(3) of the Internal Revenue Code
(or the corresponding provisions of any superseding law), designated
by the City to manage the Access Channels.
SECTION 10. INSURANCE. PAPA shall maintain in full force and effect at all
times during the term of this Agreement insurance as required by this Section.
The cost of such insurance shall be borne by PAPA.
A. COMPREHENSIVE LIABILITY INSURANCE. Comprehensive liability
insurance, including protective, completed operations and broad form
contractual liability, property damage and personal injury coverage,
and comprehensive automobile liability including owned, hired, and
non-owned automobile coverage. The limits of such coverage shall be
at a minimum: (1) bodily injury including death, $1,000,000 for each j
person, each occurrence and aggregate; and (2) property damage,
$1,000,000 for each occurrence and aggregate.
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B. EQUIPMENT INSURANCE. Insurance shall be maintained on all
equipment and facilities, including fixtures, funded in whole or in part
under this Agreement to replacement cost. The insurance shall
include, at a minimum, insurance against loss or damage beyond the
user's control, theft, fire, and natural catastrophe. The City shall be
shown as lien holders on all policies.
C. WORKERS' COMPENSATION. Full Workers' Compensation
Insurance and Employer's Liability with limits as required by
Washington law with an insurance carrier in good standing with the
State of Washington.
D. CABLECASTER'S ERRORS AND OMISSIONS INSURANCE.
Insurance shall be maintained to cover the content of productions that
are cablecast on the Access channels in, at minimum, the following
areas: libel and slander; copyright or trademark infringement; infliction
of emotional distress, invasion of privacy; plagiarism; misuse of
musical or literary materials. This policy shall not be required to cover
individual Access Channel producers.
E. CITY AS CO-INSURED OR ADDITIONAL INSURED. All City shall be
named as co-insured or additional insured on all aforementioned
insurance policies. The policies shall provide that no cancellation,
major change in coverage or expiration may be affected by the
insurance company or PAPA without first giving each of the City thirty
(30) days written notice prior to the effective date of such cancellation
or change in coverage. Any insurance or self-insurance maintained by
the City, their officers, agents, employees, or volunteers shall be in
excess of PAPA's insurance and shall not contribute to it.
F. NOTIFICATION OF COVERAGE. PAPA shall file with the City proof
of insurance coverage as follows: (1) Comprehensive Liability and
Workers' Compensation upon commencement of the employment of
the Executive Director; (2) equipment insurance upon the acquisition of
any equipment; and (3) cablecaster's errors and omissions insurance
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within thirty (30) days of the commencement of cablecasting of
programming from a Community Media Center.
SECTION 11. NON-DISCRIMINATION IN EMPLOYMENT AND SERVICE.
A. PAPA shall not discriminate against any person, employee or applicant
for employment or subcontractor on the basis of race, color, creed,
religion, sex, sexual orientation, marital status, ancestry, national origin
or physical or mental disability.
B. PAPA shall not discriminate in the delivery of services on the basis on
race, color, creed, religion, sex, sexual orientation, marital status,
ancestry, national origin or physical or mental disability.
SECTION 12. INDEPENDENT CONTRACTOR. It is understood and agreed
that PAPA is an independent contractor and that no relationship of
principal/agent or employer/employee exists between the City and PAPA. If in
the performance of this Agreement any third persons are employed by PAPA,
such persons shall be entirely and exclusively under the control, direction and
supervision of PAPA. As to PAPA's employees, all terms of employment,
including hours, wages, employee benefits, working conditions, discipline, hiring
and discharging or any other term of employment shall be determined by PAPA
and the City shall have no right or authority over such persons or terms of
employment.
SECTION 13. ASSIGNMENT OR TRANSFER. Neither this Agreement nor any
interest herein shall be assigned or transferred by PAPA, except as expressly
authorized in writing by the City.
SECTION 14. ANNUAL REPORTS. Prior to April 15 of each year, PAPA shall
submit to the City an annual report regarding its activities during the preceding
fiscal year (January 1 - December 31). This report shall contain, at a minimum, y
the following information:
A. Statistics on programming and services provided;
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B. Current and complete listing of PAPA's Board of Directors; and
C. Year-end financial statements reviewed by an independent certified
public accountant.
SECTION 15. RECORDS, FISCAL AUDIT.
A. PAPA shall maintain all necessary books and records, in accordance
with generally accepted accounting principles.
B. Upon request from the City, PAPA shall, at any time during normal
business hours, make available all of its records with respect to all
matters covered by this Agreement.
C. PAPA shall prepare (or have prepared) and submit to the City a fiscal
audit by an independent certified public accountant, at the expiry of this
Agreement.
SECTION 16. FUNDING AND OTHER RESOURCES. The City agrees to make
the following funds and resources available to PAPA:
A. Funds and Resources from the Franchisee.
1. Pursuant to Section 7.1 and 7.2 of its Franchise, the Franchisee
has dedicated certain channel capacity (spectrum on the cable
system) for Access Channel use. The City hereby designates
PAPA to manage that channel capacity for PEG access
programming purposes.
2. Pursuant to Section 7.8 and 7.10.3. of the Franchise, the
Franchisee has agreed to provide certain Access Channel Links
(video feeds) and Headend links and associated equipment. The
City hereby designates PAPA to receive and manage these
resources for Access Channel network purposes.
3. Pursuant to Section 7.10.1 and 7.10.2 of the Franchise , the
Franchisee has dedicated certain other resources and in-kind
support for Access Channel purposes as stated in the Cable
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Franchise . The City hereby designates PAPA to receive and
utilize all such resources and in-kind support for Access Channel
purposes.
4. Pursuant to Section 7.11.1 and 7.11.5 of the Franchise, the
Franchisee has provided the following grants in support of Access
Channel uses upon the following timetable:
(a) On the effective date of this agreement, or as early as
practical, (i) funds for Access Channel production facilities,
and equipment in the amount of $60,000, or (ii) access
channel equipment specified in writing by the City up to the
aggregate value of $60,000.
(b) An annual operation contribution to support the
adequate operation of the Access Channel(s) in the amount
of $0.05 per subscriber per month.
5. The City shall transfer to PAPA all funds received from the
Franchisee for Access Channel purposes. The City shall transfer
those funds within 20 days after PAPA submits a letter to the City
requesting those funds be transferred to PAPA. Thereafter, the
City shall direct the Franchisee to pay all such funds directly to
PAPA. PAPA shall utilize such funds for the purposes delineated
in this Agreement and the Cable Franchise Agreement. In
accordance with Section 7.11.3 of the Cable Franchise
Agreement, within 90 days of receipt of funds, PAPA will provide
to the City and the Franchisee, a detailed accounting of the
capital expenditures with such funds.
SECTION 17. ANNUAL PLAN AND BUDGET.
A. On or before September 30 of each year in which this Agreement is in
effect, PAPA shall provide to the City an "Annual Plan and Budget"
outlining activities and programs planned for the following fiscal year.
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Such plan shall contain:
1. A statement of the anticipated number of hours of Access
Channel programming to be cablecast;
2. Training classes to be offered and frequency of classes;
3. Other Access Channel activities planned by PAPA; and
4. A detailed operating and capital equipment and facilities budget.
SECTION 18. EXPENDITURE OF FUNDS. PAPA shall spend funds received
pursuant to this Agreement and the Cable Franchise for the purposes listed in
its Annual Plan and Budget and Section 1 ("Scope of Services") of this
Agreement. Funds not expended in the year covered by the Annual Plan and
Budget may be carried over by PAPA into succeeding years. Upon termination
of this Agreement all funds of any kind received pursuant to this Agreement and
not expended by PAPA shall be returned to the City, in proportion to the
amounts previously provided by the City. All such returned funds shall be used
by the City for Access Channel purposes. PAPA shall provide for such fiscal
control and accounting procedures as are necessary to assure proper
disbursement and accounting for funds received from the City.
SECTION 19. FUNDING FROM OTHER SOURCES. PAPA may, during the
course of this Agreement, receive supplemental funds from other sources,
including but not limited to fundraising activities.
SECTION 20. TERM OF AGREEMENT. This Agreement shall be for the
duration of the current Cable Franchise Agreement, which terminates on May 26,
2017, unless terminated earlier, as provided for in this Agreement. This
Agreement may be renegotiated, for additional periods upon establishment of,
and in accordance with, a new Franchise.
SECTION 21. SUBSEQUENT AGREEMENT. The Parties recognize that the
City may enter into a subsequent agreement that replaces this Agreement after a
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new franchise is executed with Wave. If so, in selecting the contractor to
manage access channels in the subsequent agreement, the City shall consider
PAPA's demonstrated quality in the performance of Agreement.
SECTION 22. TERMINATION OF AGREEMENT: TRANSFER OF ASSETS.
A. The City shall have the right upon one hundred twenty (120) days
written notice to PAPA to terminate this Agreement for:
1. Material breach of any provision of this Agreement by PAPA;
2. Malfeasance, misfeasance, misappropriation of funds; or
3. Loss of 501(c)(3) status by PAPA or revocation or suspension of
its Articles of Incorporation by the State of Washington.
B. PAPA may avoid termination by curing any such breach to the
satisfaction of the City within one hundred twenty (120) days of
notification or within a time frame agreed to by the City and PAPA.
The City may also terminate this Agreement at the expiration of its
term, or any extension thereof.
C. Upon termination of this Agreement, PAPA shall immediately transfer
to the City all equipment, real property, fixtures, contracts, leases,
deposit accounts or other assets received by or purchased by PAPA
with funds received pursuant to this Agreement. All such transferred
items shall be used by the City for Access Channel purposes.
SECTION 23. COOPERATION. Each party agrees to execute all documents
and do all things necessary and appropriate to carry out the provisions of this
Agreement.
SECTION 24. APPLICABLE LAW. This Agreement shall be interpreted and
enforced under the laws of the State of Washington.
SECTION 25. NOTICES. Wherever this Agreement requires notice to be given
to or a filing to be made with the City, such notice or filing shall be given to the
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City. All notices and other communications to be given by either party may be
given in writing, depositing the same in the United States mail, postage prepaid
and addressed to the appropriate party as follows:
To the City:
City Manager
City of Port Angeles
321 E. 5t" St.
Port Angeles, WA 98362
To Peninsula Area Public Access:
Any party may change its address by written notice to the other parties at any
time.
SECTION 26. ENTIRE AGREEMENT. This Agreement is the entire agreement
of the parties and supersedes all prior negotiations and agreements whether
written or oral. This Agreement may be amended only by written agreement and
no purported oral amendment to this Agreement shall be valid.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date written above.
CITY OF PORT ANGELES PENINSULA AREA PUBLIC
ACCESS, a Washington
nonprofit corporation
Dan McKeen, City Manager President, Board of Directors
Date Date
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