(Draft Changes -- Revised 10/13/09)
CONTRACT BETWEEN CITY OF FAYETTEVILLE, ARKANSAS
AND
COMMUNITY ACCESS TELEVISION (CAT)
A 501-C-3 NONPROFIT ORGANIZATION
AGREEMENT
This Agreement is made this 16th day of December, 2009, by and between the City of Fayetteville, a municipal corporation (“City”), and Community Access Television, a nonprofit corporation (“CAT”), who agree as follows:
PURPOSE AND INTENT
1. The City desires to provide support for the use of cable television public, educational, and government (“PEG”) access channels provided pursuant to federal law.
2. The purpose of the public access television is to provide training for the public for public access television productions and to ensure “first-come, first-served, non-discriminatory” programming, in accordance with the First Amendment, as a limited public forum for citizens.
3. This contract for the public access television station is contingent upon the City retaining a franchise contract with a cable television services operator, such as it is at present.
4. The franchise agreement with Cox Cable Company Communications provides that certain channel capacity be provided for PEG access for non-commercial programming.
5. The City’s Telecommunications Board Ordinance #4504 provides for a standing body to advise the City Council on telecommunications issues and to coordinate and oversee use of the public rights of way designated for public, educational, and governmental use on any telecommunication system serving the City of Fayetteville.
6. The City has determined that it will provide support for PEG access and that it will provide physical space and equipment located at the PEG City of Fayetteville Television Center, located at 101 W. Rock Street, Fayetteville.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties agree as follows:
SECTION 1. SCOPE OF SERVICES. In exchange for the funding provided by the City to CAT, pursuant to this Agreement, CAT shall provide the following services and report progress in each area to the Telecommunications Board and the City on a quarterly basis:
A. OPERATE PUBLIC ACCESS CABLE CHANNEL(S). Operate the public access cable channel(s) for non-commercial, public/community access programming purposes in a manner that is consistent with the principals set forth in this contract and the Telecommunications Board Ordinance. CAT will:
1. Devise and monitor equipment check-in, check-out procedures and provide reports quantifying the amount of usage; and
2. Schedule and monitor editing facilities and studio, maintaining scheduling records and coverage documents, should any request for review be required; and
3. Provide the services herein described Operate the public access channel(s) for a minimum of 40 hours per week, easily accessible to the citizens of Fayetteville and the surrounding area; and
4. Have at least one qualified staff member present during the required customer service hours to assist citizens with their productions.
B. PROVIDE EQUAL ACCESS. CAT will honor the First Amendment rights of members of the community who wish to use the services of CAT. public access station. CAT will provide access to the use of the equipment, facilities, channel(s), and services provided hereunder to all members of the community for non-commercial programming purposes, whether individuals, groups, or organizations, on a first-come, first-served non-discriminatory basis pursuant to operating rules promulgated by CAT which are in compliance with the City’s operating rules for the PEG Television Center (Addendum A).
C. OPERATING POLICIES AND PROCEDURES. CAT policies for the use and operation of the public access channel(s) shall be in compliance with the City’s operating rules of the PEG Television Center. CAT will file such policies with the Telecommunications Board and the City, and any changes in CAT policies will be posted on the CAT’s Web site and presented to the Telecommunications Board and the City as an informational item 15 days prior to implementation. CAT will:
1. Devise and maintain administrative policies; and
2. All communication between the City and CAT with regard to contractual matters will be directed through the Cable Administrator, Television Center Manager, or any other such representative as may be appointed by the City, and CAT's duly appointed representative. In the event of a disagreement over the administration of this agreement, either party may appeal to the Telecommunications Board who shall make recommendations to the Mayor or City Council, as may be required.
D. DEVELOP FUNDING. CAT will develop a plan for generating revenue at a minimum of 25% of the amount provided by the City in order to subsidize additional growth.
1. CAT will develop a general underwriting policy; and
2. CAT will cablecast telecast two CAT specific fundraising events per year; and
3. CAT shall not cablecast telecast more than 4 fundraising events per year for other
501c(3) non-profit organizations that provide service in the cablecast telecast area; and
4. CAT will seek and devise a timely procedure for solicitation and collection of donations and other contributions to be recorded on a monthly budget process. These procedures could include, but not be limited to, telethons, web-based donation collections, etc.
E. COMPLIANCE WITH LAWS, RULES AND REGULATIONS. CAT will administer the public access channel(s) and facilities in compliance with the Telecommunications Board Ordinance; with applicable laws, rules and regulations;, and with the franchise agreement between the City and Cox Cable Company Communications and/or other television services providers. All business and information maintained by CAT or the CAT Board of Directors is subject to the terms of the Arkansas Freedom of Information Act (FOIA).
F. TRAINING AND PROMOTION. CAT will provide services to train city and area residents of Washington, Madison, Benton and Carroll counties in the techniques of video production and provide technical advice in the execution production of productions programming. CAT will:
1. Create and provide training curriculum to emphasize video proficiency and production quality in public access programming; and
2. Certify a minimum of 30 first 20 individuals through CAT certification training. Completion of certification training is necessary to use Television Center equipment and facilities. These individuals are “Certified Producers”; and local producers per year. Such local producers shall be counted whether using CAT or other equipment and facilities.
3. Promote CAT as a telecast facility such that a minimum of 10 new individuals request the telecast of programs they have produced without using Television Center equipment or facilities. Individuals who produce programming without the use of Television Center facilities or equipment are “Local Producers”; and
4. Include a public service requirement as part of the certification process that results in at least one cablecast telecast quality program per trainee certified producer per year. This is a requirement for maintaining certification; and
5. Promote the use of the public access channel(s) to the extent that 300 400 new programs produced by local or certified producers locally produced programs are cablecast telecast per year. These programs may not include those produced by the Fayetteville Government Channel. These programs may include those produced for telecast by CAT staff; and Only the following categories of program sources will be included:
a. Programs made by Independent CAT Producers whether or not they use CAT facilities
b. Programs made by local citizens who are not Independent CAT Producers
c. Programs produced by CAT for the purpose of allowing local citizens to express themselves. Such programs shall be open to participation by all citizens on an equal basis
d. Programs produced by independent producers using CAT contract production services
6. Encourage the use of the digital video editing capabilities and assist producers to stay abreast of emerging technologies; and
7. Create a monthly schedule of relevant workshops to publish on the public access television channel’s bulletin board and its web site.
G. PLAYBACK/CABLECASTING.TELECASTING. CAT will provide for playback/cablecasting telecasting of programs on the public access channel(s). CAT shall cablecast telecast a minimum of 40 80 combined total hours of local, original, replayed and imported programming per week. This excludes the community message board. CAT will:
1. Develop a policy and method for the scheduling and telecasting of public access programs and cablecast telecast programs on the public access channel(s); and
2. Maintain accurate cablecast telecast logs and report number of programs per month in each of the categories specified by the operating and programming policy
3. Maintain a library of all produced shows programs produced by local or certified producers or CAT staff to be available for review and use at the PEG Center Television Center; and
4. A copy of all live and/or recorded programs are required to be held for 4 days past the original date of play if said programs are not submitted to the videotape library
5. Individuals requesting programs to be telecast by CAT must reside within the city limits of Fayetteville. This does not apply to local or certified producers requesting new programs to be telecast by CAT; and
6. CAT shall require access producers requestors to sign an agreement warranting that the program they are submitting requesting to be telecast does not contain:
a. any violation of any state or federal law relating to obscenity; and
b. any material that is libelous, slanderous, or other defamation of character, or an unlawful invasion of privacy; and
c. any advertising or material which promotes any commercial product or service; and
d. any use of material which violates copyright law; or any material contrary to local, state or federal laws, regulations, procedures and policy.
H. INFORMATION. CAT shall submit quarterly and annual reports, as defined by the Telecommunications Board or the City, on the operations of the public access channel(s) and other such special reports as listed below to the Telecommunications Board and the City. These reports shall contain, but not be limited to, the following information:
1. Itemization of programs telecast
2. Itemization of program requestors
3. Number of new certified producers
4. Number of new local producers
5. Number of new requestors
6. Type and number of programs telecast, including:
a) New and repeat programs produced by certified producer
b) New and repeat programs produced by local producer
c) New and repeat import programs
d) New and repeat programs produced by CAT staff
e) CAT promotional programs
f) Fundraising programs
In addition to the standard reports, the following special reports shall be submitted:
1. Reports of stolen or damaged equipment within one working day of learning of each occurrence; and
2. Requests for changes in any procedures or rules pertaining to protection or preservation of City owned equipment and facilities; and
3. All corporate documents, including but not limited to CAT's by-laws, articles of incorporation, certification of compliance with affirmative action plan and EEO standards, and a list of Board members; and
4. At any reasonable time and as often as the Telecommunications Board or the City may deem necessary, CAT shall make available to them, or any of its authorized representatives, all of CAT's records related to all matters covered by this Agreement and shall permit the Telecommunications Board or the City to audit, examine, make excerpts and copies of such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to matters covered by this Contract; and
5. During the term of this Contract, CAT shall cause to be delivered to the Telecommunications Board and the City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof. Such notice shall be delivered in a timely manner to give adequate notice and shall also include an agenda; and
6. Minutes of all meetings, if taken, and materials distributed in meetings of CAT's Board of Directors, or committees thereof, shall be submitted to the Telecommunications Board and the City; and
7. At such times and in such form as the Telecommunications Board or the City may require, CAT shall furnish such statements, records, reports, data and information deemed pertinent to matters covered by this Agreement.
I. PROMOTION. CAT will actively promote the use and benefit of the public access television station channel(s) and Television Center facilities to cable television services subscribers, the public, and Cox Cable Company television services providers. CAT also will:
1. Maintain web site for publication of all reports and scheduled events; and
2. Create a quarterly newsletter distributed via mail and direct delivery and distribute it to members, producers and associates, including members of the City Council, the Office of the Mayor, members of the Telecommunications Board, the Director of Communication and the Television Center Manager; and
3. Provide promotional spots/bulletin boards on the station that promote the use and benefits of the public access television station and facilities to cable television services subscribers and the general public.
SECTION 2. PERFORMANCE. CAT will be evaluated through quarterly evaluations, and an annual performance review.
A. Quarterly evaluations will be performed in accordance with the criteria set by the Telecommunications Board, consistent with the process for oversight as specified in the Telecommunications Ordinance.
B. A Performance Review shall be conducted by CAT and presented to the October meeting of the Telecommunications Board in order to ensure timely delivery of information to the City Council during annual budget review.
1. This review shall include an opportunity for CAT public access users and cable television services subscribers to provide input. In turn, the Telecommunications Board will evaluate the CAT Performance Review, basing the evaluation on the terms of this contract and citizen input. The Telecommunications Board will present its performance assessment and recommendations to the City Council in November and begin the process of negotiation for the following contractual year that begins January 1.
2. All Telecommunication Board findings and recommendations regarding the Performance Review will be provided as feedback to CAT. In the event that the Board recommendation is for non-renewal of the CAT contract, an exit interview will be conducted to discuss all relevant facts.
SECTION 3. USE OF CITY PROPERTY/OWNERSHIP. CAT recognizes that it is performing services for the City on City-owned property and that while on such property, CAT shall not engage in any activity that is not directly related to the services provided pursuant to this Agreement. Ownership title to all capital acquisition, supplies, material or any other property purchased with funds received under this Contract is vested with the City, and possession of such property shall, upon termination of the Contract, revert to the City unless otherwise provided for by the City in writing. Any equipment secured through fund-raising efforts to benefit the public access television station shall remain the property of the City’s PEG Access Television Center. Ownership of the library of programs collected during the performance of this contract shall, upon termination of this contract, revert to the city.
A. All changes to the facility and equipment array shall be approved by the City before being undertaken.
B. The City shall make at least two telephone lines available for CAT's business use. CAT shall be responsible for reimbursing the City, on a quarterly basis, for this expense at a rate of $20 per line per month.
C. CAT shall be responsible for its own long distance telephone calls.
D. CAT shall be responsible for paying the costs of their listing in the telephone directory.
E. The City shall furnish and maintain up to three computers for the office use of CAT. This is in addition to those computers that are part of the video systems and the public internet work station. The City shall furnish one time in this 2010 contract renewal, 3 computers for the office use of CAT. This is in addition to those computers that are part of the video systems and the public internet work station. These computers will be configured as closely as possible to the “standard build” for similarly provided computers & software provided to other City offices. CAT will be responsible for all hardware and software maintenance and repair of these computers, and purchase of any other software CAT would like to have installed on the computers used in their operations. Any replacement of these computers will be subject to the normal equipment request procedure and be weighed with all other Capital Improvement requests under the Television Center CIP program.
F. The City is not required to provide hardware and/or software for the establishment or maintenance of systems for the purpose of public internet access.
G. The City shall provide access to the world wide web Internet for CAT at the same level provided to the Television Center. CAT will be responsible for any access requirements above the level provided to the Television Center.
H. There shall be no charge to citizens of Fayetteville for the use of cable casting telecasting time on the public access channel, nor for the use of the facilities or equipment. However, CAT's fees and charges may apply for such services as, but not limited to, instructions on video production and internet use, video tapes blank media, video tape media duplication, annual producer’s fees and contracts for video productions.
MAINTENANCE
I. The City shall be responsible for the payment of the Access Television Center utilities, routine building and grounds maintenance and maintenance of the structure.
J. CAT may use the City's current copier at the Access Television Center for a charge of $.039 per copy. Additionally, CAT may use the copier located at the City Administration Building for the standard charge as is allocated per copy to the City Departments and Divisions. If the City upgrades the copier located in the Access Television Center, CAT shall pay an adjusted charge per copy, up to, but not to exceed the standard City rate charged to City Departments and Divisions as determined annually.
K. Copy machine maintenance costs will be paid by the City.
VIDEO EQUIPMENT
L. CAT Staff and Producers will have direct input in the decisions regarding the acquisition, maintenance and repair of equipment used primarily by CAT Staff and Producers. The City will accommodate the equipment needs of CAT Staff and Producers to the extent that considerations of budget, compatibility and integration in the system will allow.
M. The City shall repair and maintain the video production and telecasting equipment except as otherwise noted. CAT shall make minor, routine repairs to equipment used for public access production which shall be mutually agreed upon by the City and CAT.
N. The City shall operate a system for equipment and facility repairs and maintenance. All repair requests will be recorded and forwarded to the Cable Administrator, Television Center Manager, or his designee. , who will assign the repairs to be done by an appropriate staff member or to other sources as defined in the PEG Center Standard Operational Procedures. The written system will be designed to keep all PEG Television Center personnel informed of the status of repairs. A similar system will be used to conduct preventive maintenance in accordance to hours of usage of cablecast decks, field cameras and edit system decks.
O. CAT shall make minor repairs to equipment designated for public use or used by CAT Staff. for public access productions such as repairing microphones, cables, cleaning recording heads, and camera lenses.
P. Certain equipment, to be designated by the City, shall not be available for public access checkout. The reserved equipment shall be used only for government productions, CAT's contract productions, and CAT’s promotional programs. Use of the reserved equipment will be only by CAT Staff and City Staff certified by a procedure established by the City.
Q. Use of the PEG Television Center video equipment and facilities designated for public use will be coordinated by the City CAT using a reservation system readily available at all times. This in no way relieves CAT of the responsibility of making sure that all of the City’s equipment used for public access purposes is checked out and returned in good working order.
R. CAT will notify the City immediately of any problems with the equipment.
S. All video production equipment owned by the City and used for public, educational and/or government access productions shall be covered under the City's insurance policy.
SECTION 4. CONTRACT PERIOD. Initial contract period will be from January 1, 2010 until December 31, 2010. Either party may cancel this contract at any time with a thirty (30) day written notice.
SECTION 5. FUNDING. The City hereby agrees to pay CAT the monthly sum of $7,750 for services performed under the terms of this contract. Each monthly payment will be remitted on or before the 15th day of each month, beginning January 15, 2010.
The Contractor CAT agrees to provide the City with a monthly financial report, prepared by an independent certified public accountant, based on a modified accrual or cash basis method, summarizing activity during the preceding 30 day period month and year to date. Said report shall include income and balance sheet statements. Contractor shall have an independent certified public accountant complete an official review of its financial records annually. This report shall be submitted to the City by the last day of the third month after the end of Contractor's fiscal year.
SECTION 6. LEGAL AUTHORITY. CAT assures and guarantees that it possesses the legal authority to enter into this Agreement. Further, that the person or persons signing and executing this Agreement on behalf of CAT have been fully authorized by CAT to execute this Agreement. That such authority is evidenced pursuant to a proper, appropriate and official motion and resolution, which was passed and approved specifically to enter into this Agreement and shall legally bind CAT to all the terms, performances, and provisions here set forth. A copy of such resolution shall be provided upon execution of this Agreement. The City may exercise its right to either temporarily suspend or permanently terminate this Agreement if there is a dispute as to the legal authority of CAT or the person signing the Agreement. The City shall not be obligated to pay CAT for any performance of the provisions of this Agreement after the City has suspended or terminated this Agreement as provided in this Section.
SECTION 7. PERSONNEL. CAT shall adequately staff the public access operation to meet the services and duties outlined in this agreement. Staff for public, educational, and government channels will be expected to work together in a cooperative manner with all groups using the facility. Personnel policies shall be established by CAT and shall be available for examination by the City.
Upon termination of an employee by the City Cable Administrator, Television Center Manager, and in the event that CAT’s manager wishes to hire the employee over the objections of the Cable Administrator, Television Center Manager, an appeal of the action may be brought by the Cable Administrator Television Center Manager to CAT’s Board of Directors. Similarly, upon termination of an employee by CAT, and in the event that the Cable Administrator Television Center Manager wishes to hire the employee over the objections of CAT’s manager, an appeal of the action may be brought by CAT’s manager to the Telecommunications Board.
SECTION 8. EQUAL OPPORTUNITY. CAT shall comply with all applicable equal opportunity, affirmative action, and ADA laws or regulations, including those of the City of Fayetteville.
SECTION 9. INSURANCE. CAT shall obtain and keep in force during the term of this agreement a policy of public liability and property damage insurance. The coverage, at a minimum, shall be in the following amounts:
General Liability
a. General Aggregate $1,000,000
b. Products/Completed Oper. Aggr. $1,000,000
c. Each Occurrence $100,000
d. Fire Damage (any one fire) $50,000
e. Medical Expense (any one person) $5,000
Worker’s Compensation for all employees as required by Arkansas Statute.
Bonding: CAT shall obtain a fidelity bond covering all persons handling funds received or disbursed and/or signing or co-signing checks to disburse funds under this agreement, within 10 days of the contract execution. The fidelity bond shall be in an amount equal to 10% of the city grant award or $5,000, whichever is less. CAT shall furnish the city proof of an adequate fidelity bond prior to the first payment of funds under this agreement.
SECTION 10. POLITICAL/SECTARIAN ACTIVITY. CAT management shall not initiate or sponsor political or religious programming. The staff shall work on a content neutral basis and shall not determine programming content except for programs produced for the purpose of promoting the use of the channel. Staff produced programs, such as short-takes and contract productions shall be open to participation by all citizens on a first-come, first-served, non-discriminatory basis. Though the facility can be used for legitimate First Amendment purposes, no portion of the funds received by CAT shall be used to directly produce any programs nor participate in any CAT-sponsored activities that establish any religion or prohibit the free exercise thereof.
SECTION 11. PUBLICITY. In any news release, sign, brochure, or other medium disseminating information prepared or distributed by or for CAT, mention shall be made of the City of Fayetteville having made the project possible, i.e. “’Community Access Television’ is a project partially funded by the City of Fayetteville.”
SECTION 12. HOLD HARMLESS. It is expressed, understood and agreed by both parties that the City is contracting with CAT as an independent contractor and that as such, CAT shall save and hold the City, its officers, agents and employees harmless from all liability of any nature of any kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting from injuries or damages sustained by persons or property, resulting in whole or in part from the performance or omission of any employee, agent or representative of CAT. This Agreement shall not be construed in any manner or form as a waiver of that Tort Immunity as set out under Arkansas Law.
SECTION 13. CONFLICT OF INTEREST. CAT covenants that neither it nor any member of its Board of Directors currently has any interest or shall acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. CAT further covenants that in the performance of this Agreement no person having such interest shall be employed or appointed as a member of its Board of Directors.
CAT further covenants that no member of its Board of Directors or its staff or employees shall possess any interest in or use their position for a purpose that is or gives the appearance of being motivated by desire for private gain for themselves, or others particularly, those with which they have family, business, or other ties.
No officer, member, or employee of the City and no member of its governing body who exercises any functions or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his or her personal interest or the interest of any corporation, partnership, or association in which he has a personal financial direct or indirect interest; or have any personal financial interest, direct or indirect, in this Agreement or the proceeds thereof.
CONTRACT ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties hereto, and any prior agreement, whether written or oral, shall have no force or effect. Any subsequent agreements will have no effect unless properly executed in writing and recorded as an addendum to this Agreement.
SEVERABILITY. If any section, subsection, sentence, clause, phrase or word of this agreement is held to be invalid or unconstitutional by any court of competent jurisdiction, such section, subsection, sentence, clause, phrase or word will be deemed as a separate, distinct and independent provision, and such holding will not effect the validity of the remaining provisions of this agreement.
COMMUNITY ACCESS TELEVISION CITY OF FAYETTEVILLE, ARKANSAS
By:¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬____________________________ By: ______
Lioneld Jordan, Mayor
Title:___________________________
ATTEST: ATTEST:
By: By: __________________________
Sondra Smith, City Clerk
Title:__________________________
ADDENDUM A
CAT CONTRACT
CITY’S PEG CENTER RULES
1. The use of alcohol, tobacco products and illegal drugs is strictly prohibited in the PEG Center.
2. Contractor’s and City’s employees shall not park in the spaces in front of the Access Center.
3. Food and drink shall not be taken into the production areas which includes all editing bays, the studio control and cable casting areas and the Multi-Media Editing and Internet Access room.
4. PEG Center users shall not leave items to be stored in the PEG Center without permission from the Public Access Manager or the Cable Administrator. Television Center Manager, In the event that there is a disagreement about what can be stored in the PEG Center, the city shall make the final decision.
5. PEG Center users shall not leave unattended items such as coats, hats, cups, props, dishes, papers, books, magazines, food, drinks and other items in inappropriate places. Each user shall leave the break room and other rooms in the PEG Center in a reasonable state of order and neatness.
6. All equipment use shall be entered into the appropriate reservation book before being used.
7. If a producer is 20 minutes late or more, without notification, for an equipment reservation, the equipment may be reserved by another producer.
8. Public Access Contractor and City shall each bear one-half of the costs of supplies used by everyone in the facility’s break room.
9. The staffs for the public access and government channels will be working closely together at the PEC Center. Members of both staffs will be expected to work in a cooperative manner.
10. All persons shall behave in a respectful, courteous and orderly manner while in the PEG Center.
Addendum A
CAT Contract
The City of Fayetteville Television Center
Rules of Use
1. Per City of Fayetteville Policy, the use of alcohol, tobacco products and/or illegal drugs on the premises is strictly prohibited. Per Policy SH-01, tobacco use is allowed at designated areas outside the Television Center.
2. Staff members shall not park in spaces in the parking lot in front of the Center except for purposes of loading or unloading.
3. Food and/or beverages shall not be taken into any areas containing production equipment such as editing rooms, the master control room or the studio control room. Food and/or beverages may be taken into the studio. Caution should be used and the use of closed-top containers for beverages should be encouraged.
4. Public users of the Television Center may not use the Center to store personal items or personal items utilized for production (i.e. props, tapes, etc.) Temporary exceptions may be granted by the Television Center Manager.
5. Public users of the Television Center and producers are responsible for the clean up and returning of all property and/or equipment used at the end of a production. Failure to do so may result in the loss of producer privileges.
6. Staff and public users of the Television Center are expected to conduct themselves at all times in an orderly, respectful and courteous manner. Loud talking, yelling, shouting and/or raucous behavior is disruptive to others attempting to work.
(Draft Changes -- Revised 10/13/09)
CONTRACT BETWEEN CITY OF FAYETTEVILLE, ARKANSAS
AND
COMMUNITY ACCESS TELEVISION (CAT)
A 501-C-3 NONPROFIT ORGANIZATION
AGREEMENT
This Agreement is made this 16th day of December, 2009, by and between the City of Fayetteville, a municipal corporation (“City”), and Community Access Television, a nonprofit corporation (“CAT”), who agree as follows:
PURPOSE AND INTENT
1. The City desires to provide support for the use of television public, educational, and government (“PEG”) access channels provided pursuant to federal law.
2. The purpose of the public access television is to provide training for the public for public access television productions and to ensure “first-come, first-served, non-discriminatory” programming, in accordance with the First Amendment, as a limited public forum for citizens.
3. This contract for the public access television station is contingent upon the City retaining a franchise contract with a television services operator, such as it is at present.
4. The franchise agreement with Cox Communications provides that certain channel capacity be provided for PEG access for non-commercial programming.
5. The City’s Telecommunications Board Ordinance #4504 provides for a standing body to advise the City Council on telecommunications issues and to coordinate and oversee use of the public rights of way designated for public, educational, and governmental use on any telecommunication system serving the City of Fayetteville.
6. The City has determined that it will provide support for PEG access and that it will provide physical space and equipment located at the City of Fayetteville Television Center, located at 101 W. Rock Street, Fayetteville.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties agree as follows:
SECTION 1. SCOPE OF SERVICES. In exchange for the funding provided by the City to CAT, pursuant to this Agreement, CAT shall provide the following services and report progress in each area to the Telecommunications Board and the City on a quarterly basis:
A. OPERATE PUBLIC ACCESS CHANNEL(S). Operate the public access channel(s) for non-commercial, public/community access programming purposes in a manner that is consistent with the principals set forth in this contract and the Telecommunications Board Ordinance. CAT will:
1. Devise and monitor equipment check-in, check-out procedures and provide reports quantifying the amount of usage; and
2. Schedule and monitor editing facilities and studio, maintaining scheduling records and coverage documents, should any request for review be required; and
3. Provide the services herein described for a minimum of 40 hours per week, easily accessible to the citizens of Fayetteville and the surrounding area; and
4. Have at least one qualified staff member present during the required customer service hours to assist citizens with their productions.
B. PROVIDE EQUAL ACCESS. CAT will honor the First Amendment rights of members of the community who wish to use the services of CAT. . CAT will provide access to the use of the equipment, facilities, channel(s), and services provided hereunder to all members of the community for non-commercial programming purposes, whether individuals, groups, or organizations, on a first-come, first-served non-discriminatory basis pursuant to operating rules promulgated by CAT which are in compliance with the City’s operating rules for the Television Center (Addendum A).
C. OPERATING POLICIES AND PROCEDURES. CAT policies for the use and operation of the public access channel(s) shall be in compliance with the City’s operating rules of the Television Center. CAT will file such policies with the Telecommunications Board and the City, and any changes in CAT policies will be posted on CAT’s Web site and presented to the Telecommunications Board and the City as an informational item 15 days prior to implementation. CAT will:
1. Devise and maintain administrative policies; and
2. All communication between the City and CAT with regard to contractual matters will be directed through the , Television Center Manager, or any other such representative as may be appointed by the City, and CAT's duly appointed representative. In the event of a disagreement over the administration of this agreement, either party may appeal to the Telecommunications Board who shall make recommendations to the Mayor or City Council, as may be required.
D. DEVELOP FUNDING. CAT will develop a plan for generating revenue at a minimum of 25% of the amount provided by the City in order to subsidize additional growth.
1. CAT will develop a general underwriting policy; and
2. CAT will telecast two CAT specific fundraising events per year; and
3. CAT shall not telecast more than 4 fundraising events per year for other
501c(3) non-profit organizations that provide service in the telecast area; and
4. CAT will seek and devise a timely procedure for solicitation and collection of donations and other contributions to be recorded on a monthly budget process. These procedures could include, but not be limited to, telethons, web-based donation collections, etc.
E. COMPLIANCE WITH LAWS, RULES AND REGULATIONS. CAT will administer the public access channel(s) in compliance with the Telecommunications Board Ordinance; with applicable laws, rules and regulations;, and with the franchise agreement between the City and Cox Communications and/or other television services providers. All business information maintained by CAT or the CAT Board of Directors is subject to the terms of the Arkansas Freedom of Information Act (FOIA).
F. TRAINING AND PROMOTION. CAT will provide services to residents of Washington, Madison, Benton and Carroll counties in the techniques of video production and provide technical advice in the production of programming. CAT will:
1. Create and provide training curriculum to emphasize video proficiency and production quality in public access programming; and
2. Certify a minimum of 20 individuals through CAT certification training. Completion of certification training is necessary to use Television Center equipment and facilities. These individuals are “Certified Producers”; and
3. Promote CAT as a telecast facility such that a minimum of 10 new individuals request the telecast of programs they have produced without using Television Center equipment or facilities. Individuals who produce programming without the use of Television Center facilities or equipment are “Local Producers”; and
4. Include a public service requirement as part of the certification process that results in at least one telecast quality program per certified producer per year. This is a requirement for maintaining certification; and
5. Promote the use of the public access channel(s) to the extent that 400 new programs produced by local or certified producers are telecast per year. These programs may not include those produced by the Fayetteville Government Channel. These programs may include those produced for telecast by CAT staff; and
6. Encourage the use of the digital video editing capabilities and assist producers to stay abreast of emerging technologies; and
7. Create a monthly schedule of relevant workshops to publish on the public access television channel’s bulletin board and its web site.
G. PLAYBACK/.TELECASTING. CAT will provide for telecasting of programs on the public access channel(s). CAT shall telecast a minimum of 80 combined total hours of local, original, replayed and imported programming per week. This excludes the community message board. CAT will:
1. Develop a policy and method for the scheduling and telecasting of public access programs on the public access channel(s); and
2. Maintain a library of all programs produced by local or certified producers or CAT staff to be available for review and use at the Television Center; and
3. Individuals requesting programs to be telecast by CAT must reside within the city limits of Fayetteville. This does not apply to local or certified producers requesting new programs to be telecast by CAT; and CAT shall require requestors to sign an agreement warranting that the program they are requesting to be telecast does not contain:
a. any violation of any state or federal law relating to obscenity; and
b. any material that is libelous, slanderous, or other defamation of character, or an unlawful invasion of privacy; and
c. any advertising or material which promotes any commercial product or service; and
d. any use of material which violates copyright law; or any material contrary to local, state or federal laws, regulations, procedures and policy.
H. INFORMATION. CAT shall submit quarterly and annual reports, as defined by the Telecommunications Board or the City, on the operations of the public access channel(s) to the Telecommunications Board and the City. These reports shall contain, but not be limited to, the following information:
1. Itemization of programs telecast
2. Itemization of program requestors
3. Number of new certified producers
4. Number of new local producers
5. Number of new requestors
6. Type and number of programs telecast, including:
a) New and repeat programs produced by certified producer
b) New and repeat programs produced by local producer
c) New and repeat import programs
d) New and repeat programs produced by CAT staff
e) CAT promotional programs
f) Fundraising programs
In addition to the standard reports, the following special reports shall be submitted:
1. Reports of stolen or damaged equipment within one working day of learning of each occurrence; and
2. Requests for changes in any procedures or rules pertaining to protection or preservation of City owned equipment and facilities; and
3. All corporate documents, including but not limited to CAT's by-laws, articles of incorporation, certification of compliance with affirmative action plan and EEO standards, and a list of Board members; and
4. At any reasonable time and as often as the Telecommunications Board or the City may deem necessary, CAT shall make available to them, or any of its authorized representatives, all of CAT's records related to all matters covered by this Agreement and shall permit the Telecommunications Board or the City to audit, examine, make excerpts and copies of such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to matters covered by this Contract; and
5. During the term of this Contract, CAT shall cause to be delivered to the Telecommunications Board and the City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof. Such notice shall be delivered in a timely manner to give adequate notice and shall also include an agenda; and
6. Minutes of all meetings, if taken, and materials distributed in meetings of CAT's Board of Directors, or committees thereof, shall be submitted to the Telecommunications Board and the City; and
7. At such times and in such form as the Telecommunications Board or the City may require, CAT shall furnish such statements, records, reports, data and information deemed pertinent to matters covered by this Agreement.
I. PROMOTION. CAT will actively promote the use and benefit of the public access channel(s) and Television Center facilities to television services subscribers, the public, and television services providers. CAT also will:
1. Maintain web site for publication of all reports and scheduled events; and
2. Create a quarterly newsletter and distribute it to members, producers and associates, including members of the City Council, the Office of the Mayor, members of the Telecommunications Board, the Director of Communication and the Television Center Manager; and
3. Provide promotional spots/bulletin boards on the station that promote the use and benefits of the public access television station and facilities to television services subscribers and the general public.
SECTION 2. PERFORMANCE. CAT will be evaluated through quarterly evaluations, and an annual performance review.
A. Quarterly evaluations will be performed in accordance with the criteria set by the Telecommunications Board, consistent with the process for oversight as specified in the Telecommunications Ordinance.
B. A Performance Review shall be conducted by CAT and presented to the October meeting of the Telecommunications Board in order to ensure timely delivery of information to the City Council during annual budget review.
1. This review shall include an opportunity for CAT public access users and television services subscribers to provide input. In turn, the Telecommunications Board will evaluate the CAT Performance Review, basing the evaluation on the terms of this contract and citizen input. The Telecommunications Board will present its performance assessment and recommendations to the City Council in November and begin the process of negotiation for the following contractual year that begins January 1.
2. All Telecommunication Board findings and recommendations regarding the Performance Review will be provided as feedback to CAT. In the event that the Board recommendation is for non-renewal of the CAT contract, an exit interview will be conducted to discuss all relevant facts.
SECTION 3. USE OF CITY PROPERTY/OWNERSHIP. CAT recognizes that it is performing services for the City on City-owned property and that while on such property, CAT shall not engage in any activity that is not directly related to the services provided pursuant to this Agreement. Ownership title to all capital acquisition, supplies, material or any other property purchased with funds received under this Contract is vested with the City, and possession of such property shall, upon termination of the Contract, revert to the City unless otherwise provided for by the City in writing. Any equipment secured through fund-raising efforts to benefit the public access television station shall remain the property of the City’s Television Center. Ownership of the library of programs collected during the performance of this contract shall, upon termination of this contract, revert to the city.
A. All changes to the facility and equipment array shall be approved by the City before being undertaken.
B. The City shall make at least two telephone lines available for CAT's business use. CAT shall be responsible for reimbursing the City, on a quarterly basis, for this expense at a rate of $20 per line per month.
C. CAT shall be responsible for its own long distance telephone calls.
D. CAT shall be responsible for paying the costs of their listing in the telephone directory.
E. . The City shall furnish one time in this 2010 contract renewal, 3 computers for the office use of CAT. This is in addition to those computers that are part of the video systems and the public internet work station. These computers will be configured as closely as possible to the “standard build” for similarly provided computers & software provided to other City offices. CAT will be responsible for all hardware and software maintenance and repair of these computers, and purchase of any other software CAT would like to have installed on the computers used in their operations. Any replacement of these computers will be subject to the normal equipment request procedure and be weighed with all other Capital Improvement requests under the Television Center CIP program.
F. The City is not required to provide hardware and/or software for the establishment or maintenance of systems for the purpose of public internet access.
G. The City shall provide access to the Internet for CAT at the same level provided to the Television Center. CAT will be responsible for any access requirements above the level provided to the Television Center.
H. There shall be no charge to citizens of Fayetteville for the use of telecasting time on the public access channel, nor for the use of the facilities or equipment. However, CAT's fees and charges may apply for such services as, but not limited to, instructions on video production and internet use, blank media, media duplication, annual producer’s fees and contracts for video productions.
MAINTENANCE
I. The City shall be responsible for the payment of the Television Center utilities, routine building and grounds maintenance and maintenance of the structure.
J. CAT may use the City's current copier at the Television Center for a charge of $.039 per copy. Additionally, CAT may use the copier located at the City Administration Building for the standard charge as is allocated per copy to the City Departments and Divisions. If the City upgrades the copier located in the Television Center, CAT shall pay an adjusted charge per copy, up to, but not to exceed the standard City rate charged to City Departments and Divisions as determined annually.
K. Copy machine maintenance costs will be paid by the City.
VIDEO EQUIPMENT
L. CAT Staff and Producers will have direct input in the decisions regarding the acquisition, maintenance and repair of equipment used primarily by CAT Staff and Producers. The City will accommodate the equipment needs of CAT Staff and Producers to the extent that considerations of budget, compatibility and integration in the system will allow.
M. The City shall repair and maintain the video production and telecasting equipment except as otherwise noted. CAT shall make minor, routine repairs to equipment used for public access production which shall be mutually agreed upon by the City and CAT.
N. The City shall operate a system for equipment and facility repair and maintenance. All requests will be recorded and forwarded to the , Television Center Manager, or designee. The system will be designed to keep all Television Center personnel informed of the status of repairs.
O. CAT shall make minor repairs to equipment designated for public use or use by CAT Staff.
P. Certain equipment, to be designated by the City, shall not be available for public access checkout.
Q. Use of the Television Center video equipment and facilities designated for public use will be coordinated by CAT using a reservation system readily available at all times.
R. CAT will notify the City immediately of any problems with the equipment.
S. All video production equipment owned by the City and used for public, educational and/or government access productions shall be covered under the City's insurance policy.
SECTION 4. CONTRACT PERIOD. Initial contract period will be from January 1, 2010 until December 31, 2010. Either party may cancel this contract at any time with a thirty (30) day written notice.
SECTION 5. FUNDING. The City hereby agrees to pay CAT the monthly sum of $7,750 for services performed under the terms of this contract. Each monthly payment will be remitted on or before the 15th day of each month, beginning January 15, 2010.
CAT agrees to provide the City with a monthly financial report, prepared by an independent certified public accountant, based on a modified accrual or cash basis method, summarizing activity during the preceding month and year to date. Said report shall include income and balance sheet statements.
SECTION 6. LEGAL AUTHORITY. CAT assures and guarantees that it possesses the legal authority to enter into this Agreement. Further, that the person or persons signing and executing this Agreement on behalf of CAT have been fully authorized by CAT to execute this Agreement. That such authority is evidenced pursuant to a proper, appropriate and official motion and resolution, which was passed and approved specifically to enter into this Agreement and shall legally bind CAT to all the terms, performances, and provisions here set forth. A copy of such resolution shall be provided upon execution of this Agreement. The City may exercise its right to either temporarily suspend or permanently terminate this Agreement if there is a dispute as to the legal authority of CAT or the person signing the Agreement. The City shall not be obligated to pay CAT for any performance of the provisions of this Agreement after the City has suspended or terminated this Agreement as provided in this Section.
SECTION 7. PERSONNEL. CAT shall adequately staff the public access operation to meet the services and duties outlined in this agreement. Staff for public, educational, and government channels will be expected to work together in a cooperative manner with all groups using the facility. Personnel policies shall be established by CAT and shall be available for examination by the City.
Upon termination of an employee by the Television Center Manager, and in the event that CAT’s manager wishes to hire the employee over the objections of the Television Center Manager, an appeal of the action may be brought by the Television Center Manager to CAT’s Board of Directors. Similarly, upon termination of an employee by CAT, and in the event that the Television Center Manager wishes to hire the employee over the objections of CAT’s manager, an appeal of the action may be brought by CAT’s manager to the Telecommunications Board.
SECTION 8. EQUAL OPPORTUNITY. CAT shall comply with all applicable equal opportunity, affirmative action, and ADA laws or regulations, including those of the City of Fayetteville.
SECTION 9. INSURANCE. CAT shall obtain and keep in force during the term of this agreement a policy of public liability and property damage insurance. The coverage, at a minimum, shall be in the following amounts:
General Liability
a. General Aggregate $1,000,000
b. Products/Completed Oper. Aggr. $1,000,000
c. Each Occurrence $100,000
d. Fire Damage (any one fire) $50,000
e. Medical Expense (any one person) $5,000
Worker’s Compensation for all employees as required by Arkansas Statute.
Bonding: CAT shall obtain a fidelity bond covering all persons handling funds received or disbursed and/or signing or co-signing checks to disburse funds under this agreement, within 10 days of the contract execution. The fidelity bond shall be in an amount equal to 10% of the city grant award or $5,000, whichever is less. CAT shall furnish the city proof of an adequate fidelity bond prior to the first payment of funds under this agreement.
SECTION 10. POLITICAL/SECTARIAN ACTIVITY. CAT management shall not initiate or sponsor political or religious programming. The staff shall work on a content neutral basis and shall not determine programming content except for programs produced for the purpose of promoting the use of the channel. Staff produced programs shall be open to participation by all citizens on a first-come, first-served, non-discriminatory basis. Though the facility can be used for legitimate First Amendment purposes, no portion of the funds received by CAT shall be used to directly produce any programs nor participate in any CAT-sponsored activities that establish any religion or prohibit the free exercise thereof.
SECTION 11. PUBLICITY. In any news release, sign, brochure, or other medium disseminating information prepared or distributed by or for CAT, mention shall be made of the City of Fayetteville having made the project possible, i.e. “’Community Access Television’ is a project partially funded by the City of Fayetteville.”
SECTION 12. HOLD HARMLESS. It is expressed, understood and agreed by both parties that the City is contracting with CAT as an independent contractor and that as such, CAT shall save and hold the City, its officers, agents and employees harmless from all liability of any nature of any kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting from injuries or damages sustained by persons or property, resulting in whole or in part from the performance or omission of any employee, agent or representative of CAT. This Agreement shall not be construed in any manner or form as a waiver of that Tort Immunity as set out under Arkansas Law.
SECTION 13. CONFLICT OF INTEREST. CAT covenants that neither it nor any member of its Board of Directors currently has any interest or shall acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. CAT further covenants that in the performance of this Agreement no person having such interest shall be employed or appointed as a member of its Board of Directors.
CAT further covenants that no member of its Board of Directors or its staff or employees shall possess any interest in or use their position for a purpose that is or gives the appearance of being motivated by desire for private gain for themselves, or others particularly, those with which they have family, business, or other ties.
No officer, member, or employee of the City and no member of its governing body who exercises any functions or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his or her personal interest or the interest of any corporation, partnership, or association in which he has a personal financial direct or indirect interest; or have any personal financial interest, direct or indirect, in this Agreement or the proceeds thereof.
CONTRACT ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties hereto, and any prior agreement, whether written or oral, shall have no force or effect. Any subsequent agreements will have no effect unless properly executed in writing and recorded as an addendum to this Agreement.
SEVERABILITY. If any section, subsection, sentence, clause, phrase or word of this agreement is held to be invalid or unconstitutional by any court of competent jurisdiction, such section, subsection, sentence, clause, phrase or word will be deemed as a separate, distinct and independent provision, and such holding will not effect the validity of the remaining provisions of this agreement.
COMMUNITY ACCESS TELEVISION CITY OF FAYETTEVILLE, ARKANSAS
By:¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬____________________________ By: ______
Lioneld Jordan, Mayor
Title:___________________________
ATTEST: ATTEST:
By: By: __________________________
Sondra Smith, City Clerk
Title:__________________________
Addendum A
CAT Contract
The City of Fayetteville Television Center
Rules of Use
1. Per City of Fayetteville Policy, the use of alcohol, tobacco products and/or illegal drugs on the premises is strictly prohibited. Per Policy SH-01, tobacco use is allowed at designated areas outside the Television Center.
2. Staff members shall not park in spaces in the parking lot in front of the Center except for purposes of loading or unloading.
3. Food and/or beverages shall not be taken into any areas containing production equipment such as editing rooms, the master control room or the studio control room. Food and/or beverages may be taken into the studio. Caution should be used and the use of closed-top containers for beverages should be encouraged.
4. Public users of the Television Center may not use the Center to store personal items or personal items utilized for production (i.e. props, tapes, etc.) Temporary exceptions may be granted by the Television Center Manager.
5. Public users of the Television Center and producers are responsible for the clean up and returning of all property and/or equipment used at the end of a production. Failure to do so may result in the loss of producer privileges.
6. Staff and public users of the Television Center are expected to conduct themselves at all times in an orderly, respectful and courteous manner. Loud talking, yelling, shouting and/or raucous behavior is disruptive to others attempting to work.
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