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HomeMy WebLinkAboutFresno Clovis Community Media Authority CMAC agmtCONTRACT BETWEEN THE FRESNOICLOVIS COMMUNITY MEDIA AUTHORITY AND COMMUNITY MEDIA ACCESS COLLABORATWE AGREEMENT This Agreement Is. made Nis L day of Ss+Praaeec 2009, by and behveen the FresmlClovis Community Media Authority ("FCCMA'), a joint Powers agency of tiro J State of California, and Ne Community Media Access CallaboaUve ("CMAC'I, a California nonprofit corporation, who agrce as follows: RECITALS 1 The FCCMA, a joint powers agency organized under Sartain 6500 at segof the Government Code Of the State of California, local as Its members at Me Ilene of this Agreement the Cities of Fresno and Clovis, pursuant to Joint Powers Agreement effective (__) t, 201 Incorporated herein. 2. The FCCMA was created by the Cities of Fresno and Clovis to act as III jointly designated PEG provider, winch is responsible far negotiating and entering Into a an agreement with CMAC to manage and administer PEG channels, programming, and services. 1 Comcast and AT&T (-State Fmncblside) have each been granted a state franchise to provide video services in the cies represented by FCCMA by the Califomia Public Utilities Commission pursuant to Ne Digital Infrastructure and Video Competition Act ('DIVCA'). 6. hill provides that certain channel capacity shall be provided for public, educational, and government ('PEG-) access. & DIVCA authorizes FCCMA member lursdidons to receive ceHain grant payments from State Fronctilsees for PEG access purposes as defined by Section 5070(n) of DIVCA 8. FCCMA member )usdictions have each aulhonzed the receipt of such PEG channels and Payments via City of Frappe Ordinance 2007-94 and City of Clovis Ordinance Ti T. The FCCMA has determined that It wishes to designate CMAC as the access management organization to develop, manage and administer the PEG access channels and to operate are or more Community Media Centers. 8. CMAC has agreed to serve FCCMA by developing, programming, antl administering the PEG access channels, and operating ane or more Community Media Centers from which to provide services as described herein. NOW, THEREFORE, In consideration of to mutual promises and covenants set forth herein, the pardes agree as fellows: SECTION 1 SCOPE OF SERVICES. In exchange for the resources provided by the FCCMA to CMAC, pursuant to this Agreement, CMAC shall provide Ne Wicnabng services: A. OPERATE PUBLIC ACCESS CABLE CHANNEL(S). Operate Me public access cable channel(s) for publichommunity access programming purposes In a manner that Is consistent with the pdnciplas set fodM1 under federal and state law, with the primary purpose being to administer, coordinate, and assist Mose requi =ass on a non- diacriminatory basis. B. OPERATE EDUCATIONAL AND GOVERNMENTAL ACCESS CHANNELS. Operate me educational and governmental access channels), with the primary purpose being b administer, personate, and assist the Cities and educational insOudons requesting access on a nondiscriminatory basis. C OPERATEACOMMUNITYMEOIACENTER(S). Manageoneormorecommunity middle production fachlyhes) and equipment, available for public use at such hours and times as are determined by CMAC. ACCESS to implement and hadillies shall be open to all those who: (1) salisfactodly complete required training classes provided by CMAC: or (2) receive combustion ustion from CMAC, Identifying said persons as having spindled training requirements through other means. O. PROVIDE NONDISCRIMINATORY ACCESS. ProvIde access to the equipment, hadlifies, channels, and services provided hereunder on a non-discriminatory basis W residents of Ne titles represented by FCCMA for non-commercial programming purposes, whether individuals or organ ounims, pursuant to operi roles promulgated by CMAC. E. DEVELOP OPERATING POLICIES AND PROCEDURES. Develop wild" and procedures for use and natural of she PEG access equipment, faclllties, and channels, The patches and procedures shall be filed wit the FCCMA and shall be provided W any resWent of the dies represented by FCCMA Immo requests them. F. COMPLIANCE WITH LAWS, RULES, AND REGULATIONS. Administer the PEG access channels and facltbes In compliance with applicable Ions, rules, and regulations.. G TRAINING. Train CMAC members and residents of Ne titles represented by FCCMA In the techniques of media Production, and provide natural advice In the exec Wan of productions. H. PROGRAMMING DISTRIBUTION. Provide for the distdbWan of PEG access programming though playbacklcableci stall webcastng w other readily avaliable means of distribution of programs on the PEG access channels. Within twelve months of the completion and opening of a Community Media Canter for use by the public, CMAC shall cablecast an average of at least 20 hours of programming per week. L MAINTENANCE OF EQUIPMENT. Provide regular maintenance and repair of all Muni mant purchased with montes received pursuant to tis Agreement. J. PROMOTION. Actively promote Ne use and benefits of the PEG access charnels and fadiii to cable subscribers, the public, and PEG access users. K PERFORMANCE REVIEW. CMAC at Its sale cast shall, after four (411 years of operation under Ibis Agreement, contract wit an entry trmn outside Fresno that is expert in PEG access matters to conduct a performance review of CMC's operations. CMAC and FCCMA shall meet and conger W identify an expel Nat is mutually agreeable to both partes. This review shall Induce an opportunity For PEG access users and cable subscribers W provide input. Upon Immolator, a copy of the performance review shall be submitted to FCCMA. L. OTHER ACTIVITIES. Undertake other PEG access activities and services as deemed appropriate by CMAC and that are consistent with the obligation to fac itale and promote PEG access programming and provide rwndiscriminatwy access. SECTION 2. PUBLIC ACCESS CHANNELS OPEN TO PUBLIC: CMAC agrees to keep the public access chanark) open to all potential users regardless of their viewpoint, subject m FCC regulations and other relevant laws. Neither FCCMA. State Franchisees, nor CMAC shall have the authority to control the content of programming placed on the public access channels) so long as such programming Is lawful. Provided that, nothing herein shall prevent CMAC, FCCMA, or State Franchisees from producing or sponsoring programming, prevent FCCMA or State Franchisees from undemanding programming, or prevent FCCMA, State Fmnchlsees, or CMAC from engaging in activities designed to promote production M domain types of programming or use by targeted groups as consistent with applicable law and rules for use of the channell CMAC may develop and onferae policies and procedures which are designed to promote local use of the channels) and make programming accessible to the viewing public, consistent with such tore, place, and manner regulations as are appropriate to provide for and promote use of PEG access channels, equipment and brothers. SECTION d INDEMNIFICATION. CMAC shall indemnify, defend and hold harmless FCCMA, its directors, ofiders, agel volunteers and employees from and against any and all claims, sults, actions, causes of action, theses, damage, or Ilabl flies of any kind nature or descr pilon, including payment of litigation casts and attorneysteas, 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 thesame may be caused directly or indirectly ening or resulting from any alleged acts or until of CMAC, its directors, Its officers, employees, agents or subcontractors arising out of or resulting from the performance of this Agreement. In addition and wi hout limiting the foregoing, CMAC shall indemnify and bald harmless FCCMA, gs consu rs, officers, agents, employees and volunteers from and against any and all claims or other injury, including costs of litigation and attorneys fees, arising from or in connection with claims or lose or damage to person or property ameN Out of the failure to comply with any applicable laws, rules, regulations or other requirements of local, state or federal authodties, far del" of libel, Pander, Invasions of privacy. or infringement of common law or statutory copyright, for breach of mnVad of other Injury or damage In law or at equity which Palms, elect or Indirectly, result from CMAC's use of channels, funds, mkwmenl, ocilkes or staff granted under this Agreement or handles agreements issued to State Franchisees. FCCMA wall Indemnify, defend. and had harmless CMAC, Its lectors, officers, Name, volunteers and employees ham and against any and all Palms, suits, adions, causes of adbn, losses, damage, or liabilities of any kind nature or description, Including payment of litigation costs and adomeys' 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 pemorrs, howsoever the same may be caused diredly or indirectly arising or resulting from any alleged wilful misconduct or negligent acts or omission of FCCMA Its directors, Its officers, employees, agents or subcomractors araing out of or resuding from the Performance of MIs Agreement. SECTION d COPYRIGlfT C APN Before telecast of any program material, CMAC shall require all users to agree in wmirg Met they shall make all appropriate anangemmR toobtain all mill to all material cableceal or distributed through any ober means such as Me. Internet and clearances from broadcast womins, networks, sponsors, music licensing organizations' representatives, and without limitation from Me foregoing, any and all other persons as may be necessary to transmit Meir program material over the PEG access channels bat are operated and managed by CMAC. CMAC mail maintain for Inspection by FCCMA upon reasonable notice by FCCMA and for the term of Me applicable statute of gmitations, copies of all such user agreements. SECTION 5 COPYRIGHT AND OWN RSHIP. CMAC shall own the copyright of any programs which 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. $ECTION 6. DISTRIBUTION RIGH -S. A. CMAC shall require that all programs produced with funds, equipment facilities, or SW granted under NIS Agreement shall be distressed on the channels whose use is authorized by this Agreement This subparagraph shall not be interereted 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 PEG access operating polities and procedures. B. At Ne beginning and end of each day that programming Is dablarzst on Me PEG Session channels whose use is authorized by MIs Agreement CMAC shall display a credit stating, "Partial funding for Me operation of this channel is proNded by Me Fresno Clovis Community Media Authority'. Suitt credit shall also state that opinions expressed In PEG access programs are Me sole responsibility of Me program Producers. SECTION] EQUIPMENT AND FACILITIES A CMAC shall be responsible per maintenance of all equipment and teddies owned, leaned or loaned to It under this Agreement or purchased vhth funds provided pursuant to this Agreement. B. CMAC shall own all equipment and fadlilles acquired by it and purchased war funds receNad pursuant to this Agreement. To secure all of Its obligations under this Agreement CMAC hereby grants to Me FCCMA a security Interest in Me assets and immesh; owned or hereafter acquired by CMAC with Nnds powder! by FCCMA, and the proceeds thereat, including but not limited b CMAC deposit Obscure, Inventory, and all equipment and fixtures acquired with funtls provided by FCCMA. CMAC agrees Is take all steps reasonably requested by FCCMA to perfect and enforce the security interest of FCCMA. Including the execution and processing of financing statements and continuation statements under the California Uniform Commercial Code. CMAC will also notify any insllNtion with whiU h now or hereafter maintains any deposit account of the existence of a security interest by FCCMA in the assume. FCCMA agrees to subordinate Its interest if necessary to finance the pumhass of equipment or property necessary b earl out the purpose of this Agreement The sutroNinadon shall only be with respect to the specific equipment or property that CMAC might wish to finance C. Upon the senior of lemllnation, expiration or dissolution of CMAC, it shall. subject to the approval Of FCCMA, transfer all assets of CMAC representing equipment and facilides owned by CMAC and funded by FCCMA, and/or the proceeds of eller to such Organization or organimtlons designated by FCCMA to manage PEG access which shall at the time qualify as a as exempt organlzagon(s) under Section 501(c$3) of one Internal Revenue Code (or the corresponding provisions of any superseding law). SECTION B INSURANCE CMAC shell maintain In full fares and effect at all limes dudfg the tum of this Agreement insurance as required by this Section. The insurance shall be. Issued by insurance company(las) admitted to do business in California and rated no less than'A-VII" In Best's Insurance Bell Guide. The cost of such insurance shall be home by CMAC and may be Included In its annual budget CMAC shall discontlnue wore hereunder In the absence of such coverages. A. COMPREHENSIVE LIABILITY INSURANCE, Comprehensive liability insurance, Including protective, completed oparetion; and broad form contractual liability, property damage, ParewW Injury, and Ativertisiig Injury coverages, and comprehensive automobile liability including sense, hired and non -owned automobile coverage. The Omits of $uch coverage shall be at a minimum. (1) bodily Injury including death. $1,000,000 for cock Person, each occurrence and aggregate; and (2) property damage, $1,000,000 far each occurrence and aggregate. B. EQUIPMENT INSURANCE. Insurance shall be maintained on all equipment and facilities, including fixtures, funded In whale or In part under this Agreement to replacement cast The insurance shall include, at a minimum insurance against loss or damage beyond Me users control, Met fire or natural catastrophe. The FCCMA shall be shown as lien holders on all policies. C, WORKERS' COMPENSATION. Full Workers' Compensation Insurance sell Employer's Liability with limits as required by Callbmla law with an Insurance abler satisfactory to Ne FCCMA. Such policy shall contain a wavier of subrogation as to FCCMA and its directors, officem, agents, employees and volunteers. 0. CABLECASTER'S ERRORS AND OMISSIONS INSURANCE Insurance shall be maintained to cover the content of productions which are ablecast on Ne PEG access channels in, at minimum. Ne following areas: libel and slander, copyright or traderi Infringement: infliction of emotional distress, invasion of privacy; plagiarism; misuse of musical or literary materials. This policy shall not be requlrerl to cover individual PEG access producers. E. FCCMA AS COJNSURED OR ADDITIONAL INSURED. FCCMA shall be named as co-msured or additional Insured on all aforementioned insurance policies. The policies shall provide that the insurance company or CMAC may affect no cancellation, major change in coverage or explosion wizard first giving FCCMA thirty (30) days Much notice poor to the eRecbve date of such cancellation or change In coverage. Any insurance or self-insurance maintained by Ne FCCMA, their officers, agents, employees, or volunteers shell be In .excess of CMAC's Insurance and shall not contrbute to it. CMAC shall pay all deductibles. FCCMA shall be provided wth copies Of policies upon its reasonable request. F. NOTIFICATION OF COVERAGE CMAC shall file with the FCCMA proof M Insurance coverage as follows: (t) Comprehensive Liability and Workers' Compensation upon commencement of the employment of rhe Executive Director: (2) Equipment Insurance upon the aCculatioh of any equipment: and (3) cablepstera share and omissions insurance will thirty (30) days of Ne date that CMAC commences cable ®sting of programming on the Camast able system. SECTI0N9 NON-OISCRIMI TION IN EMPLOYMENT AND SERVICE. A. CMAC .shall not discriminate against any person, employee or applicant for employment or subcontractor on the basis of race, color, awes, religbn, sex, sexual wimp gen, marital status, ancestry, natlonal origin or physical or mental disability. B. CMAC shall not discriminate in the delivery of services on Na basis on race, color, creed, rallglon, sax, sexual orientation, marital status, ancestry, natlonal on& or physical or mental disability, SECTION 10i INDEPENDENT coNTgACTog. It is understood and agreed that CMAC is an Independent contractor and that no relationship of pdncipagagent or employerlemployee exists between FCCMA and CMAC. If In the performance of this Agreement any third persons are employed by CMAC, such persons shall be entirely and exclusively under the contrd, direction and supervision of CMAC. Wdhoul trilling the foregoing, FCCMA shall have no responsibility or liability as to terms of employment, Including hours, wages, employee benefits, walling conditions, discipline, hiring and discharging or any other term of employment, which shall be determined! by CMAC, and FCC" shall have no right or authority over such Parsons or letms of employment. No III party shall be a beneficiary under elle Agreement. SECTION 11. ASSIGNMENT OR T[WISFER. Neither tra Agreement nor any Interest herein shall be assigned or transferred by CMAC. except as expressly autlmrized In writing by FCCMA. SECTION 12 ANNUAL REPORTS. Poor to April 15 of each year, CMAC shell Submit to FCCMA an annual report regarding he activities during Iiia preceding fiscal year (January 1 - December 31).. This regal shall contain, at a minimum, the following Information: A. Stadstics on programming and services provided; B. Current and complete listing of CMAC's Board of Direcmrs, and C. Year-end financial statements reviewed by a certified public accountant. D. A cannot Inventory of epulpmemt used to advice PEG programming (including data of acquisition, condition, and anticipated useful lifespan). yYai�x •,s A. CMAC shall maintain all necessary books and records, in accordance with generally accepted accounting principle. B. Upon reasonable request from FCCMA, CMAC shall, at any time during normal business hours, make oval all of its records with respect to all matters covered by this Agreement C, Mer the second full fiscal year of operation under this Agreement CMAC shall prepare (or have prepared) and submit to the FCCMA a fiscal audit by an Independent certified public accountard. Thereafter. CMAC shall prepare (or have prepared) and submit to the FCCMA a fiscal audit by an independent berthed public accountant at least every three (3) years. SECTION 14 FUNDING AND OTHER RESOURCES The parties to this Agreement acknowledge that the primary funding source for the services descrbe l herein Is a PEG access fee that is provided to Me member jurisdictions of Me FCCMA by Ne various wall servke providers providing such services in Fresno and Clovis as licensed by the Callfomia Public lhilltles Commission pursuant to DIVCA. Pursuant to Section 5870(n) of DIVCA those PEG funds can only be used for PEG related purposes. FCCMA was established by Its member jurisdictions to provide the mechanism W the delivery of PEG programming and services to Ne member dues of the FCCMA using said funds. The FCCMA agrees to make the allmving funds and resources available to CMAC: A. The California Public Unlides Commission has granted t0 each State Franchise e franchise b provide video services In Me open represented by Oe FCCMA Pursuant to those state franchises and to City of Fresno Ordinance 200744 and City of Clovis Ordinance 07-36, each State Franchisee is obligated to provide to each FCCMA member judsdddon a minimum of those and a maximum of four channels for PEG access purposes. The FCCMA agrees to permit CMAC to manage chat bandwidth/channel capacity for PEG access programming purposes. B. Pursuant to Nose state franchises and to City of Fresno Ordinance 2007-94 and City of Clovis Ordinal 07-36, each State Franchisee Is obligated to provide t0 FCCMA member predictions far PEG access purpmes one percent It 30) of its gross revenues carved from the delivery of video services In Fresno and Clovis.. FCCMA shall carrier to CMAC any accrued funds and interest on Nose funds received from FCCMA member judadicions for PEG purposes withln thirty (30) days of CMAC submitting and FCCMA approving a budget for its first faced year, Thereafter, no ]star than thirty (30) days after FCCMA receives the quarterly PEG had payment from FCCMA member iuoso ictione, FCCMA shall transfer those funds to CMAC. C. State Franchisees are obligated pursuant Section 5870 of GIVCA to provide to FCCMA member jurisdictions connectivity necessary M transpoMnteroonnect PEG programming from public, aducabonzl, and government primary program Pollination ships to Me State Franchisee for transmission on PEG channels to calut"dw service subscribers. FCCMA shall tansler b CMAC the ability to use MIs PEG connectivity to deliver PEG programming. CMAC shall work in collaboration with FCCMA member jurisdlchon W assure mal such conoeotivity Is ac5vated for PEG purposed. O. Should the PEG access obligations of State Franchisees serving FCCMA member jurisdictions be modified, CMAC and FCCMA will meet and costar to determine N and 1f so how Mia Agreement would need to be modified to accommodate the changed PEG obligations of the State Franchisees. E. Nothing in this Agreement shall be deemed to prohibit FCCMA from contracting with CMAC for additional services. SECTION15 ANNUALPLANANOBUOGErt A By no later than bL�s� %O LMAC shall provide FCCMA a copy of its business plan and budget for its first fiscal year of operatics under this Agreement- Thereafter, by no later that October 30 0l each year in which this Agreement is in effect. CMAC shall provide to FCCMA an'Annual Plan and Budget' outlining activities and programs planned for the follovnng fis®I year with funds and other resources provided by the FCCMA. Such plan shall contain: 1. A statement of the an dlosted number of hours of PEG access 11 programming m be cablerast; 2. Training classes to badgered! and frequency of classes; 3. ONer PEG access ectivi0es planned by CMAC: 4. An operating and capital equipment and facilities budget and S. GrantvMfing or fundraising activities and estimated level of funding to be generated from such activities. SECTION 16 EXPENDITURE OF FUNDS. CMAC shall spend funds received from Ne FCCMA for the general purposes Ilstetl In he Annual Plan and Budget and Section 1 ("Scope of Services) of this Agreement CMAC shall pmvide for such fiscal control and accounting procedures as are necessary to assure proper disbursement and accounting for funds received Tom the FCCMA SECTION 17FINDING FROM OTHER SOUR . CMAC may, during the course of No Agreement receive supplemental funds from other sources, including but not Ilmited to fundraising actrAtles. SECTION 18TERM OF AGREEMENT. This Agreement shall be for an Initial term of five (5) years commencing on ctYDd!2 f , 2009 and ending on 16staftlen-ffi 30 .2014 unless terminated eamen as provided for In this Agreement. This Agreement may be renewed or extended, by mutual agreement of FCCMA add CMAC, in wring, for additional gedods in accordance with Sacred 20 of this AgraemenL SECTION19. TE IONOFAGREE SFE SETS. A. The FCCMA shall have Na right upon one hundred twenty (120) days whiten notice to CMAC to terminate Nis Agreement for. 1. Material breach of any provision of this Agreement by CMAC; 2. Malfeasance, misfeasance, misuse of funs; or 3. Was of 501(c$3) status by CMAC or revocation or suspension of its Anides of Incorporation by Ne State of Calilomia; or Failure of State Franchisees M provide funds obligated for PEG purposes to Cties resulting in Close Inability to provide FCCMA funding. B. The written Contract violation notice provided by FCCMA shall ate the specific section of this Agreement which FCCMA belleves CMAC to have breached and Provide sumaeet detail to permit CMAC to nearly understand Me nature of Me core requested by FCCMA. C. CMAC may avoid nomination by Curing any such breach to Me satisfaction M Me FCCMA wlMln one hundred twenty (120)days of no0flcafion or within a time trame agreed to by Me FCCMA and CMAC. If Me nature of the default is such Mat more than one hundred twenty (120) days are reasonably required for i6 cure, Men CMAC shall not be deemed to be In default f it has commenced a cure within Me one hundred twenty (120) day perlatl and thereafter diligently prosecutes such cure of completion within Me time pard reasonably established by the FCCMA, D. Upon termination or expiration of this Agreement, CMAC shall Immediately transfer all equlpment, real property, fixtures, contacts, leases, deposit accounts or other assets received by or purchased by CMAC wish funds removed pursuant M this Agreement to such organization or Organizations designated by the FCCMA to manage PEG access, which shall at Me time quality as a tax exempt organiaationls) under Search 501(c)(3) of Me Internal Revenue Code (or Me corresponding provisions of any superseding law. SECTION 20 EXTENSION OF AGREEMENT. This Agreement may be extended for an additional term of Mrse (3) years upon FCCMA§ approval of the written request of CMAC filed war the FCCMA at least one hundred and twenty days (120) before Me expiation of the initial term provided that CMAC Is In compliance with the terms of this 13 Agreement. CMAC shall be deemed in compliance with this Agreement unless the FCCMA has provided CMAC with a notice of violation and such violation Is not finely cured. This Agreement may be further emended, by mutual agreement of the FCCMA and CMAC, In writing, for additional three-year terms. SECTION 21 TIME. Time is of the essence In this. Agreement and for the Performance of all covenants and conditions of this Agreement. SECTION 22 COOPERATION. Each party agrees b execute all documents and do all Kings necessary and appmptlate to Carty aut Ne previsions of this Agreement. RECTION 23 APPLICABLE LAW. This Agreement shall be Interpreted and enforced under the laws of tie Stale of California. SECTION 24 NOTICES All notices and other communications to be given by ether Party may be given In writing, depositing the same In the United States mail, poslage prepaid and addressed to the appropriate party as bellows: Fresno/Clovis Communhy Media ANhority C/o ORma of the Ciry Clark 2600 Fresno Street Fresno, CA 93721 Communtry Media Access Collaborative rip Roberts Barton, Secretary Fresno County Public Llbrary 2420 Mariposa Street Fresno, CA 93721 Any party may Mange Its address by women notice to me other parties at any time. SECTION 25 ENTIRE AGREEMEW. This Agreement is the entire agreement of the partes and supersedes all prior negotiations and agreements whether written or oral. This Agreement may he amended only by written agreement and no purported oral amendment to this Agreement shall be valid. 15 IN WITNESS WHEREOF, the pates have executed this Agreement as of the date written above. Fresno/Clovis Community Media Authority, a joint powers agency of the State of California. t �. 4. 1'z ©9 Date Community Media Access, Collaborative, a California nonprofit Corporation.