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HomeMy WebLinkAbout001271 Original Contract City of Port Angeles Record #001271 CONTRACT BETWEEN THE CITY OF PORT ANGELES AND PENINSULA AREA PUBLIC ACCESS (PAPA) AGREEMENT This Agreement is made as of the date of the last signature affixed below, 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 is currently negotiating a renewal of the franchise to Wave Division Holdings LLC ("Wave") to operate a cable television system in the City hereafter referred to as the "Franchise". 2. The City desires to provide support for the use of educational and governmental access cable channels provided pursuant to federal law, and in accordance with the Franchise. 3. The City anticipates the Franchise will provide that certain channel capacity and fiber links be made available to the City. Such channel capacity provided by the Franchise is hereafter referred to as the "Access Channel". 4. The City anticipates the Franchise will provide that certain payments and in-kind services be made by Wave for Access Channel capital equipment, facilities and operations in accordance with the Franchise. 5. The City selects PAPA as the nonprofit Designated Access Channel Manager (DACM) to operate and administer the Access Channel, facilities, services, and programming. 6. PAPA agrees to serve the City by establishing and managing a Community Media Center and providing Access programming and services. I 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 Channel, facilities, services and programming; and to receive from Wave the payments, resources, and services to be provided by Wave to support Access Channel uses in accordance with the Franchise. SECTION 3. SCOPE OF SERVICES. In,exchange for the resources provided to it, PAPA shall provide the following services.- A. OPERATE CABLE ACCESS CHANNEL, Operate and manage the cable Access Channel for access programming purposes in a manner that is consistent with the Franchise, 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 an individual 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 programming purposes, whether individuals or organizations, pursuant to operating rules promulgated by PAPA. 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. 2 E. COMPLIANCE WITH LAWS, RULES, AND REGULATIONS. Administer the Access Channel 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 who are members of PAPA 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. PLAYBACKICABLECAST, Provide for the playback/cablecasting of programs on the Access Channel. 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. 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. K 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. 1, SPECIAL NEEDS GROUPS. Support special needs groups in program production through training and other means. J. PROMOTION. Actively promote the use and benefits of the Access Channel and facilities to cable subscribers, the public, Access Channel users, and Wave. 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. 3 SECTION 4. PUBLIC ACCESS CHANNEL OPEN TO PUBLIC. PAPA agrees to keep the Access Channel open to all potential users regardless of their viewpoint, subject the Cable Franchise Agreement, FCC regulations and other relevant laws. Neither the City, Wave, nor PAPA shall have the authority to control the content of programming placed on the Access Channel so long as such programming is lawful. PAPA, the City, or Wave, 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 that 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 Channel, 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 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. 4 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 Channel 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. SECTION 8. DISTRIBUTION RIGHTS. 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, [eased or loaned to it pursuant to this Agreement or purchased with funds made available to it pursuant to this Agreement, 5 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 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. 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 Channel. 6 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 person, each occurrence and aggregate; and (2) property damage, $1,000,000 for each occurrence and aggregate. 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 users 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 Employees 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 channel in, at minimum, the following areas: libel and slander; copyright or trademark infringement; infliction of emotional distress, invasion of privacy; plagiarism; misuse of musical or literary materials. This policy shall not be required to cover individual Access Channel producers, E. CITYAS CO-INSURED OR ADDITIONAL INSURED. The 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 7 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 within thirty (30) days of the commencement of cablecasting of programming from a Community Media Center, SECTION 11. NOWD ISCRI M I NATION IN EMPLOYMENT AND SERVICE. X 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 I - December 31). This report shall contain, at a minimum, the following information: X Statistics on programming and services provided as proposed by the plan in Section 17; B. Current and complete listing of PAPA's Board of Directors-, and C. Year-end financial statements reviewed by an independent certified public accountant or another similarly qualified individual as determined by the City Manager. D. Provide an updated inventory of all equipment purchased, or partially purchased, with funds that are assigned to PAPA from the City. 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 or another similarly qualified individual as determined by the City Manager, 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 Wave. 9 1 In accordance with the Franchise the City anticipates that Wave may dedicate 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, if granted. 2. In accordance with the Franchise, the City anticipates that Wave may agree 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, if granted. 3. In accordance with the Franchise, the City anticipates that Wave may dedicate certain other resources and in-kind support for Access Channel, The City hereby designates PAPA to receive and utilize all such resources and in-kind support for Access Channel purposes, if granted. 4. In accordance with the Franchise, Wave may provide the following grants in support of Access Channel which the City herby designates PAPA to receive and utilize for Access Channel purposes, if granted: (a) Funds for Access Channel production facilities, and equipment. (b) An annual operation contribution to support the adequate operation of the Access Channel, 5. The City shall transfer to PAPA all funds received from Wave for Access Channel purposes, The City shall transfer those funds to PAPA within 20 days after receipt from Wave. PAPA shall utilize such funds for the purposes delineated in this Agreement and the Cable Franchise Agreement. SECTION 17. ANNUAL PLAN AND BUDGET. In addition to the report required by Section 14, on or before September 30 of each year in which this Agreement is in effect, to PAPA shall provide to the City an "Annual Plan and Budget" outlining activities and programs planned for the following fiscal year. Such plan shall contain: I. 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 I ("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 five years commencing on the date of the last signature affixed below. This Agreement may be renegotiated, for additional periods upon establishment of, and in accordance with, a new Cable Franchise. SECTION 21. 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: I. Material breach of any provision of this Agreement by PAPA, including, but not limited to, failing to file the reports required by Sections 14 or 17 or providing the programming required in Section 3(G); 2. Malfeasance, misfeasance, misappropriation of funds; or 1 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 purchased, or partially 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 22. COOPERATION. Each party agrees to execute all documents and do all things necessary and appropriate to carry out the provisions of this Agreement. SECTION 23, APPLICABLE LAW. This Agreement shall be interpreted and enforced under the laws of the State of Washington. SECTION 24, 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 City. All notices 12 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. 5th 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 25. 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 PENINSULA AREA PUBLIC ACCESS, a Washington nonprofit corporation City Manager, City of Port Angeles Ir-esi&W, Board of Directors "WrwOvx-w el 10 -1 %Z 14-1 Z/7 Date Date 13