REVISED AGREEMENT FOR ADMINISTRATION AND MANAGEMENT OF CABLE TELEVISION PUBLIC ACCESS CHANNEL(S) FOR THE CITY OF MISSOULA

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1 REVISED AGREEMENT FOR ADMINISTRATION AND MANAGEMENT OF CABLE TELEVISION PUBLIC ACCESS CHANNEL(S) FOR THE CITY OF MISSOULA THIS REVISED AGREEMENT for administration and management of a cable television public access channel(s) for the City of Missoula, made and entered into this 1 st day of July 2007, in the City of Missoula, County of Missoula, State of Montana, by and between the City of Missoula, a municipal corporation organized under the laws of the State of Montana (hereinafter referred to as City ) and Missoula Community Access Television, Inc., (hereinafter referred to as MCAT). WITNESSETH For and in consideration of the mutual promises and agreements set forth herein, the City and MCAT mutually stipulate and agree to the following provisions: I. PROFESSIONAL SERVICES CONTRACT WITH CITY The City hereby agrees to retain the professional services of independent contractor MCAT pursuant to the terms and provisions of this Agreement, and MCAT agrees to perform the professional services identified pursuant to the terms and provisions of this Agreement as an independent contractor in a competent and professional manner for the benefit of the Missoula community in compliance with any applicable federal or state law or city ordinance. II. SCOPE OF PROFESSIONAL SERVICES Missoula Community Access Television, Inc., hereinafter referred to as MCAT, hereby agrees to: Non-profit. Provide proof of incorporation as a non-profit entity and to remain a non-profit entity during the term of this Agreement. Non-Discrimination. MCAT shall not discriminate in any way or manner for or against any person, firm, corporation, institution, organization, group, or individual on account of race, color, sex, culture, social origin or condition, or political or religious ideas, mental or physical handicap, marital status, national origin, ancestry or sexual orientation in promoting, operating, timely scheduling, or otherwise allocating use of the public access channel facilities or any available publicly owned equipment. 1

2 Administration and Management. Develop, operate, maintain, administer and manage a public access cable television channel(s) that cablecasts regularly in the public interest for the benefit of the community of Missoula in conformity with any applicable law. MCAT agrees to perform the following responsibilities: Promotion: MCAT shall conscientiously and diligently endeavor to promote, publicize, and popularize in the public interest the use and viewing of public access cable television in the Missoula community by governmental entities, interested individuals, community organizations, educational institutions, and the general public. MCAT shall actively encourage and promote responsible utilization of the Missoula community s public access channel by: 1) Providing at least monthly training and technical workshops to educate and train prospective users in the use of the access center and it s equipment, and 2) Periodically cable-casting messages on access programs indicating how individuals and groups may use the facilities. 3) Establishing a usage fee schedule for training and technical workshops as well as a user fee schedule for use of public property or equipment usage. Production Facilities: MCAT shall at all times maintain and make available for use by MCAT certified public citizen users, a fully functional studio facility with regular hours of operation. MCAT shall diligently maintain, control, and supervise all equipment usage. Program Scheduling: MCAT shall schedule all access programs on a non-discriminatory basis pursuant to guidelines previously set forth herein. Public Participation: As required by Montana state law for any entity receiving public moneys, MCAT hereby agrees to give public notice of all its meetings and conduct all its meetings and any subcommittee meetings pursuant to Montana s open meeting laws since MCAT will be supported in whole or in part by public funds and will be expending public funds generated pursuant to franchise fee revenues received by the City of Missoula pursuant to cable television franchise agreements. 2

3 Educational and Government Access: As part of the moneys distributed by the City to MCAT, MCAT will provide 1400 hours per year of production assistance to the City to produce timely and informative municipal bulletin services, programs featuring various departments, Mayor and City Council topics, live cablecast of City Council meetings, Community Forum, City/County Planning Board meetings and City Council committee meetings, and other content and programs as recommended by the Government Channel Cable Advisory Commission. In addition, MCAT shall encourage and assist other interested educational and governmental entities in their development of programming for public access cablecasting; provided that MCAT shall have no direct financial responsibility for the creation or administration of this programming, but may contract with those entities for this service. Rules and Procedures: MCAT shall with diligence and timeliness furnish to the City a copy of all standing rules and procedures, and any additions or deletions thereto, or revisions thereof. Fiscal Responsibility: MCAT as an independent contractor shall maintain its own fiscal budget, records and accounts. MCAT shall render to the City a written financial operating statement at least annually informing the City of the financial operations of MCAT. An independent Certified Public Accounting firm shall do an annual audit of MCAT and one copy of this audit shall be sent to the City Clerk for review and distribution to the mayor City Council and any other City officials deemed appropriate. Records and Reports: MCAT shall furnish to the City of Missoula any and all records and reports the City of Missoula deems necessary to verify the conscientious discharge of MCAT s responsibilities pursuant to this Agreement. General Liability Insurance: MCAT shall obtain and maintain adequate liability insurance coverage of one and a half million dollars ($1,500,000.00), naming the City as an additional insured. Liability insurance shall be purchased to be in continuous effect during the existence of this agreement. Cablecaster s Insurance: MCAT s board members and staff shall obtain and continuously maintain adequat3e cablecasters insurance coverage or a media insurance policy of an equivalent type in the 3

4 amount of one million dollars ($1,000,000) which includes program content and errors and omissions insurance, naming the City as an additional insured. Property and Equipment Insurance: MCAT shall obtain and maintain adequate property and equipment as the property or equipment is acquired. In the event that the City can obtain and maintain adequate property and equipment insurance coverage on its equipment leased to MCAT at a cost less than MCAT, then City may bind such insurance and deduct such costs from MCAT s compensation. To the extent that the decrease in MCAT s insurance costs is more than the increase in the City s insurance costs, MCAT may retain such windfall gain. Fidelity Bond: MCAT shall obtain and maintain a fidelity bond for its staff and board members in the amount of $50, to protect against theft, fraud, embezzlement, conversion and other dishonest acts by its employees. Maintenance of Leased Equipment: MCAT agrees to maintain, in good working condition, all fixed assets leased from or provided by the City. Cable Television Franchise renewal negotiations: MCAT agrees to assist the city by attending discussions and negotiations with respect to cable television franchise renewal strategy, and providing professional expertise. III. RESPONSIBILITIES OF THE CITY Compliance with Franchise Agreement: The City shall diligently enforce all public access provisions set forth in its franchise agreements. Compensation: Commencing with the City of Missoula s fiscal year 2008 budget the City shall pay MCAT 65% of the revenues received by City from cable television franchises. In subsequent years, payment shall not be less than the FY 2008 payment in the event franchise revenues are less than the revenue received in FY2008 unless cable television franchise fee revenue drops by more than 15%, in which case payment would be 65% of the actual amount received. 4

5 The City and MCAT will make an estimate by July 31 of each year of anticipated cable franchise fee revenue and pay MCAT 65% of that amount in four quarterly payments. A final reconciliation will be made by July 31 of each year to bring the actual annual payment equal to 65% of the actual amount of the franchise fees. The City along with its other accounts payable claims will process this request for payment. Program Content and Indemnification: The City of Missoula shall have neither control nor responsibility for public access channel program content. Independent contractor MCAT shall indemnify and hold harmless the City from any claims, suits, liability, loss or damage caused by or arising out of any public access programming by MCAT, including but not limited to any claim or legal action for alleged violation or infringement of copyright of other intellectual property right, invasion of privacy, obscenity or defamation resulting from MCAT operations, provided further that the City shall promptly inform MCAT in writing of its receipt of notice of the existence of any such claims or action. As independent contractor MCAT shall have sole discretion and authority for decisions regarding standards for program content, quality, and scheduling except as provided herein. Production Facilities: MCAT shall at all times maintain and make available for use by MCAT certified public citizen users, a fully functional studio facility with regular hours of operation. MCAT shall diligently maintain, control, and supervise all equipment usage. In order to facilitate obtaining a long-term lease, the City of Missoula will agree to serve as a back up guarantor of the rent for the former Missoulian building utility as long as the City may use the facility for whatever purpose the City desires if public access television services and facilities cease to exist at the former Missoulian building facility. Further, the parties agree that if MCAT fails to timely pay its building facility rent and the City must pay, the amount of rent paid by the City is deductible from the payments the City makes to MCAT pursuant to this agreement. Further, if MCAT does not continue to be awarded the public access community television services contract from the City, MCAT agrees to fully and completely cooperate in any transition turning the public access community television services, facilities, leased premises and operations over to a 5

6 successor in interest and MCAT will assist in explaining and showing the facilities and operations to a successor in interest. IV. CITY OWNERSHIP AND LEASE OF FIXED ASSETS The City shall retain ownership of any and all fixed assets, including land, buildings, and equipment, whose acquisition and/or maintenance is paid for or in whole or in part by cable television franchise fees received as well as fixed assets paid for by a cable television company pursuant to its cable television franchise agreement with the City. This residual ownership interest in these assets does not constitute an ability to control MCAT; but pertains solely to retaining public ownership of public assets. During the term of this agreement, MCAT shall be allowed to lease, annually for one dollar ($1.00), any and all public access television equipment owned by the City as a result of its cable television franchise agreements. MCAT and the City shall work together to have an up to date list of City owned public access fixed assets always available. In order to properly maintain city-owned equipment leased to MCAT and to keep it up to the state-ofthe-art, MCAT agrees to submit requests annually to the City for Funding in either the City s capital improvement program (CIP) or operating budget for new and replacement equipment. V. MCAT BOARD APPOINTMENTS MCAT represents and agrees that its Board of Directors shall be appointed to the Board in accordance with the non-discrimination provisions of this agreement and the provisions outlines in the Articles of Incorporation-for Missoula Community Access Television, Inc. which Articles are attached herewith as exhibit A. VI. MODIFICATIONS AND WAIVER This agreement shall not be modified, altered, or changed except pursuant to mutual written agreement signed by the parties hereto. A waiver of any term or condition of this Agreement or of any breach of this Agreement shall not be deemed a waiver of any other term or condition of this Agreement or any part hereof or of any later breach of the Agreement. Any waiver must be in writing. 6

7 The parties hereto hereby agree that whenever Missoula County government awards a cable television franchise to any cable television service and MCAT receives any monetary funding or fixed assets from either the County or the franchised cable television service; or an interlocal agreement is entered into between the City and Missoula County pertaining to public access cable television, then either such action shall automatically trigger a re-opening and renegotiation of Article II(2)-Compensation, Article V. MCAT Board Appointments, Article XVII Term of Agreement. Further, it is hereby acknowledged that the parties hereto may mutually agree at any time to reopen negotiations pertaining to this entire agreement or any provisions of this agreement. VII. BINDING EFFECT ON SUCCESSORS IN INTEREST The provisions of this agreement shall be binding on any successors in interest and assignees of the parties hereto. VIII. LICENSE TO DO BUSINESS As a non-profit entity, MCAT shall not be required to obtain a City of Missoula business license. IX. AFFIRMATIVE ACTION POLICY Contractors, subcontractors, subgrantees, and other firms doing business with the City of Missoula or any agency connected with the City of Missoula must be in compliance with the City of Missoula s Affirmative Action Plan and Title 49, M.C.A., or forfeit the right to continue such business dealings. X. NON DISCRIMINATION MCAT agrees that any and all hiring by then related to this agreement shall be on the basis of merit and qualifications and there shall be no discrimination on the basis of race, color, religious creed, political ideas, gender, age, marital status, physical or mental handicap, national origin; ancestry, or sexual orientation by persons performing this contract. Qualifications mean such abilities as are genuinely related to competent performance of the particular occupational task. THIS AGREEMENT IS CONTINGENT upon MCAT s assurance that no person shall be excluded from participation in, denied the benefits of, subjected to discrimination under, or denied employment 7

8 in connection with, any activity on the basis of the non-discrimination provisions of this Agreement. Compliance is also assured with the following statutes and regulations: Title IV of the Civil Rights Act of 1964; 1) Section 504 of the Rehabilitation Act of 1973, as amended; 2) Title IX of the Education Amendments of 1972; 3) The Age Discrimination Act of 1975; and 4) The Department of Justice Non-Discrimination Regulations, 28 CFR, Part 42, sub-parts C, D, E, and G. 5) The Americans with Disabilities Act XI. EVIDENCE OF WORKERS COMPENSATION COVERAGE MCAT hereby certifies that MCAT is covered by a Workers Compensation insurance program with either the State of Montana, a private insurance carrier, or an approved self-insurance plan in accordance with Montana, a private insurance carrier, or an approved self-insurance plan in accordance with Montana State law and will continue in effect workers compensation insurance and further certifies that the City has no liability for vendor s workers compensation insurance or claims. MCAT shall provide evidence of such coverage to the City Clerk upon execution of this Agreement. XII. PREVIOUS AGREEMENTS This Agreement constitutes the entire understanding of the parties and is intended as a final expression of their agreement and a complete statement of the terms thereof. There are no promises, terms, conditions, or obligations, other than contained herein. This Agreement shall supersede all previous communications, representations, or agreements, either oral or written, between the parties. XIII. TERMINTATION PRIOR TO COMPLETION OF CONTRACT Either party shall have the right to terminate this Agreement by reason of the other party s default. Notice of this termination shall be ninety (90) days written notice by registered or certified mail, return receipt requested, to the address provided below. A notice of termination shall specify the basis thereof, including a full description of any alleged events of default The existence of this Agreement is contingent on cable television companies continuing to serve the Missoula community and being obligated to pay and in fact paying the City of Missoula sufficient 8

9 franchise fees to fund this Agreement. The City of Missoula is obligated to make payments pursuant to this Agreement only If the City of Missoula has received timely payment of cable television franchise fees sufficient to allow the City of Missoula to meet its financial obligation pursuant to this Agreement. The City shall not be required to provide general fund moneys in support of this Agreement. If the courts ever rule that television cable companies are not required to pay cable television franchise fees to the City; or Congress ever enacts a law that prohibits or no longer authorizes a city to collect cable television franchise fees, this Agreement may be immediately terminated by the City of Missoula at the conclusion of the then current fiscal year quarter or later at the City s option. Any one of the following occurrences may, at the option of MCAT, constitute an event of default on the part of the City pursuant to this agreement: Failure to make any payment to MCAT required by this Agreement within (15) city business days after receipt of letter from MCAT to the City requesting the quarterly payment. (a) Failure to make best efforts to timely collect the full franchise fee agreed to be paid from franchised cable operators. (b) Any other material breach of this Agreement by the City. (c) Any failure to enter into good faith negotiations pertaining to any provision of this, agreement that is automatically triggered for re-opening pursuant to the provisions of this agreement. Any one of the following occurrences may, at the option of City, constitute an event of default on the part of MCAT pursuant to this agreement: Any failure of MCAT to comply with any provision of this Agreement of MCAT s published standards, rules, and procedures: a) Failure to maintain fiscal records and accounts regarding its operations. b) Any other material breach of this Agreement by MCAT. c) Any failure to enter into good faith negotiations pertaining to any provision of this agreement that is automatically triggered for re-opening pursuant to the provisions of this agreement. 9

10 Upon receipt of written notice of termination and/or of alleged events of default, the recipient shall have thirty (30) days to cure the default(s). Failure to cure may result in termination of this Agreement. The availability of this remedy shall not bar any action by either party for specific performance of the provisions of this Agreement or any other remedy. Either party may terminate this Agreement, other than through expiration- of the Agreement; in case of severe fiscal hardship to either party by providing 180 days advance written notice to the other party identifying and explaining the severe fiscal hardship circumstances that necessitate the termination. XIV. DISSOULUTION OF MCAT In the event of the termination by default or otherwise of this Administrative and Management Agreement, moneys and assets are to be turned over to the City by MCAT in accordance with the provisions for dissolution of MCAT contained in Article VI of the Articles of Incorporation of Missoula Community Access Television, said Articles being incorporated in this Agreement by attachment as Exhibit A. XV. ARBITRATION In the event that any dispute shall arise as to the interpretation of this Agreement, or in the event of a breach of this Agreement and if the parties cannot mutually settle such differences, then either party hereto shall be entitled to submit the determination of such matter to arbitration as provided by the laws of the State of Montana. This Agreement is subject to the arbitration provisions of the Montana Uniform Arbitration Act set forth in Title 27, Chapter 5, Montana Codes Annotated, Sections , MCA et seq. XVI. NOTICES Any notice herein provided to be given to the City shall be addressed and delivered to the City of Missoula, 435 Ryman, City Hall, Missoula, MT Any notice to be given to MCAT shall be addressed and delivered to MCAT, P.O. Box 8749, Missoula, MT

11 XVII. TERM OF AGREEMENT This agreement shall become effective and be in full force and effect from July 1, 2007 through June 30, unless terminated as herein before provided. At the end of said term, this Agreement may be extended as agreed between the parties. IN WITNESS WHEREOF, the parties- have hereunto set their hands and seals on the day and year in this certificate first herein above written. CITY OF MISSOULA: MCAT: Mayor John Engen Jace Laakso, President ATTEST: ATTEST: Martha Rehbein, City Clerk Joel Baird, General Manager APPROVED AS TO FORM: Jim Nugent, City Attorney 11