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HomeMy WebLinkAbout1992-095 . . . 1 2 3 4 RESOLUTION NO. 92-95 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE XECUTION OF AN AGREEMENT WITH MIND EXTENSION UNIVERSITY TO PROVIDE DUCATIONAL PROGRAMMING ON THE CITY'S EDUCATIONAL ACCESS CHANNEL. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF AN BERNARDINO AS FOLLOWS: 6 SECTION 1. The Mayor of the city of San Bernardino is 7 8 greement with Mind Extension University to provide educational 9 rogramming on the City's Educational Access Channel, a copy of 10 ereby authorized and directed to execute on behalf of said City an hich is attached hereto, marked Exhibit "A" and incorporated 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ere in by reference as fully as though set forth at length. SECTION 2. The authorization to execute the above- eferenced agreement is rescinded if the parties to the agreement ail to execute it within sixty (60) days of the passage of this esolution. I HEREBY CERTIFY that the foregoing resolution was duly the Mayor and Common Council of the city of San at a requ1ar meeting thereof, held on the 16th day of , 1992, by the following vote, to wit: March / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / 25 26 27 28 1 ESOLUTION AUTHORIZING AGREgM~NT WITH MIND EXTENSION UNIVERSITY TO ROVIDE EDUCATIONAL PROGRAMMING ON THE CITY'S EDUCATIONAL ACCESS 2 HANNEL. 3 4 5 6 7 8 9 10 11 12 13 14 he AYES NAYS ABSTAIN ABSENT x x - x - x - x - x x - G(~~ g resolution is hereby approved this I 'D;iJ , 1992. 15 16 17 18 19 pproved as to form nd legal content: 20 AMES F. PENMAN 21 ity rttorney 22 y: i. t)nO :;. 23 /~I 24 25 26 27 28 City of Sn Bdno. Res. 92-95 adopted 3/16/92 AFFILIATE AGREEMENT THIS AGREEMENT, made and entered into between the CITY OF SAN BERNARDINO ("CITY") and MIND EXTENSION UNIVERSITY, INC. ("ME/U") as follows: 1. GRANT OF LICENSE Subject to the terms and conditions of this agreement, ME/U hereby grants to CITY a non-exclusive license to distribute the "Mind Extension University" service ("Service") within the Operating Area (as defined herein) of any cable or satellite master antenna television system(s) on which CITY is authorized to distribute educational programming as listed on the attached Exhibit "A", as such list may be amended from time to time (The "Cable System( s ) ") by mutual agreement of ME/U and CITY. CITY shall give written notice to ME/U within thirty (30) days of the date CITY desires to add a Cable System to Exhibit A. 2 . TERM (a) The term of this Agreement shall commence on ~I~ , 1992, and terminate three (3) years thereafter or, if later, the end of the then current ME/U academic semester. This agreement shall automatically renew for successive one-year terms unless either party gives written notice of termination at least forty-five (45) days prior to the expiration of the then current term. (b) Except as otherwise provided herein, neither CITY nor ME/U may terminate this Agreement except upon sixty (60) days prior written notice and then only if the other has made a material misrepresentation herein or breaches any of its material obligations hereunder and such misrepresentation or breach (which shall be specified in such notice) is not or cannot be cured CATV-ME/U.Agr 1 February 25, 1992 within thirty (30) days of such notice; provided, however, that in no event shall any such termination be effective prior to the expiration of the then current ME/U academic semester. 3. CONTENT OF SERVICE ME/U shall have the exclusive authority to determine the content and format of the Service and the selection, scheduling, substi tution and withdrawal of any program or advertisement. Except as provided on Exhibit B, CITY shall distribute the Service without addition, deletion, alteration, editing or amendment, including any copyright notices, credits and similar notices, trademarks or trade names contained therein. 4. RATES AND PAYMENTS The Service shall initially be provided to CITY without charge. ME/U shall have the right at any time to give written notice to CITY (the "Notice Date"), that ME/U will impose a charge for the Service, or will modify any charge previously imposed (a "Fee Notice"). No imposition of or increase in the charge for the Service shall take effect prior to ninety (90) days after the Notice Date. CITY shall have the right to terminate this Agreement by giving written notice to ME/U within sixty (60) days after the receipt of a Fee Notice; provided, however, that such termination shall not take effect prior to the later of ninety (90) days after the Notice Date or the end of the ME/U academic semester in which the CITY has given notice of termination; and provided, further, however, that if CITY gives such notice of termination, ME/U may, at its sole option, elect to rescind such imposition of or increase in the charge for the Service by written notice given to CITY prior to the effective date of such CATV-ME/U.Agr 2 February 25, 1992 termination and, in the event of such rescission, such proposed imposition of or increase in the charge for the Service shall not become effective and this Agreement shall remain in full force and effect in accordance with its terms. Each Fee Notice given by ME/U to CITY shall be attached to and become a part of this Agreement. 5. DELIVERY AND DISTRIBUTION (a) During the term of this Agreement, CITY shall provide for the delivery of the Service via a channel dedicated for educational, governmental or community access on each of the Cable Systems or such other channel as may be agreed upon by the parties, and shall assure that each of the Cable systems shall, commencing with each such Cable Systems' first date of carriage of the Service as listed on Exhibit "A" ("Launch Date"), offer the Service in accordance with the Cable Systems franchise, permit or lease pursuant to which CITY is authorized to deliver the Service. CITY shall designate one (1) channel on each Cable system for the carriage of the Service prior to the commencement of the delivery of the Service on such Cable System, and such channel designation shall not be changed except upon at least four (4) months prior written notice to ME/U. CITY shall not delete any Cable system from Exhibit "A" during an ME/U academic semester. (b) CITY shall use its best efforts to cause each System Operator to (i) deliver the Service at the hours it is initially transmitted by ME/U and (ii) cooperate with ME/U in delivering the Service to subscribers in the event that any Cable system experiences a technical failure, in the event of failure of all of any part of the domestic communications satellite on which the CATV-ME/U.Agr 3 February 25, 1992 Service is delivered, or in the event CITY or MEjU is prevented for any reason beyond the reasonable control of CITY or MEjU from fulfilling its obligations hereunder. CITY shall notify MEjU immediately of any failure or inability on the part of any Cable System to receive the Service or deliver the service to subscribers. (c) MEjU transmits the Service by means of domestic communications satellite Galaxy 111, Transponder 11. MEjU will notify CITY of any change in satellite not less than thirty (30) days prior to the scheduled change. In the event of any change, CITY agrees to make such arrangements as may be necessary to receive the signal from the new satellite. However, if any change in transmission of signal requires new or additional receiving or redistribution equipment, and MEjU does not agree to pay for such additional or new equipment, CITY will be entitled to terminate this Agreement. (d) Subj ect to such restrictions as may be imposed by applicable laws, CITY may copy, tape or otherwise reproduce any part of the Service with MEjU' s prior written authorization. MEjU shall endeavor to advise CITY of copyright, literary and dramatic rights of, and restrictions and limitations imposed by, program originators (including but not limited to MEjU) affecting the distribution of the Service, as they exist from time to time ("Intellectual Property Rights and Requirements"). As between the parties to this Agreement, CITY shall be solely responsible for compliance with any and all Intellectual Property Rights and Requirement and shall take reasonable and practical security measures to prevent any unauthorized use and distribution of the CATV-ME/U.Agr 4 February 25, 1992 Service by itself and others. CITY shall not distribute or exhibit, and shall not authorize, license or permit the distribution or exhibition of the Service by others or by any means or device whether now known or hereafter devised other than in accordance with the terms of this Agreement through the Cable System(s) now or hereafter listed in Exhibit "A" hereto. 6. PROMOTION AND RESEARCH CITY shall cooperate with ME/U in the promotion and marketing of the Service to subscribers and to the general public within the Operating Area(s) of the Cable Systems, providing this is at no cost to CITY. 7. TRADEMARKS All right, title and interest in and to the Service, and all materials, ideas, formats and concepts, computer software or other rights of whatever nature related thereto shall remain the property of ME/U. CITY acknowledges and agrees that all names, logos, marks, copyright notices or designations utilized by ME/U in connection with the Service (the "Marks") are the sole and exclusive property of ME/U and/or its affiliates, and no rights or ownership are intended to be or shall be transferred to CITY. 8. REPRESENTATIONS AND COVENANTS (a) ME/U represents and warrants to CITY that: i) It is a corporation duly organized and validly existing under the laws of the State of Colorado; ii) ME/U has the corporate power and authority to enter into this Agreement and to fully perform its obligations hereunder; iii) ME/U is under no contractual or other CATV-ME/U.Agr 5 February 25, 1992 obligation which in any way interferes with its ability to fully, promptly and completely perform hereunder; and iv) Nothing contained in the Service shall violate the civil or property rights, copyrights, trademark rights or right to privacy of any person, firm or corporation except that no representation and warranty is given with respect to music performance rights. (b) CITY represents and warrants to ME/U that: i) CITY is a municipal corporation and a charter city duly organized and validly existing under the laws of the State of California; ii) CITY has all requisite power and authority to enter into this Agreement and to fully perform its obligations hereunder, including all requisite authority to distribute the Service on the channels designated; and iii) CITY is under no contractual or other legal obligation which in any way interferes with its ability to fully, promptly and completely perform hereunder. CITY has provided to ME/U copies of the provisions of each applicable Cable System franchise, license or permit under the authority of which CITY intends to distribute the Service, and such provisions are attached hereto as Exhibit "C". iv) To the extent that CITY provides any programming on the same channel as the Service is carried, nothing contained in such programming shall violate the civil or property rights, copyrights, trademark rights or right of privacy of any person, firm or corporation except that no representation and warranty is given with respect to music performance rights. CATV-ME/U.Agr 6 February 25, 1992 (0) CITY and ME/U shall each indemnify and forever hold harmless the other, the other's affiliates and their respective officers, directors, employees and agents from all liabilities, claims, damages and expenses (including reasonable attorney fees) arising out of any breach or claimed breach or claimed breach by it of any representation or obligation hereunder, including any violation by either party of any intellectual Property Rights and Requirements. 9. FORCE MAJEURE Neither party hereto shall be liable to the other for the failure to fulfill its obligations hereunder (other than the obligation to make all payments when due hereunder) to the extent such failure is caused by or arises out of an act of God, war, governmental rule or regulation, strike, riot labor dispute, national disaster, technical failure (including the failure of all or part of the domestic communications satellite on which the Service is delivered), or any other reason beyond the reasonable control of such party. 10. GENERAL (a) This Agreement shall inure to the benefit of and be binding upon the parties hereto and their successors and assigns but may not be assigned by CITY without the prior written consent of ME/U. (b) All notices, statements and other communications given hereunder shall be in writing and shall be delivered by fax, personal delivery or by mailing the same by certified mail, return receipt requested, or by next day express delivery, addressed: CATV-ME/U.Agr 7 February 25, 1992 ME!U 9697 East Mineral Avenue Englewood, Colorado 80112 ATTN: Group Vice President Phone: (303) 792-3111 FAX: (303) 792-5808 CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92418 ATTN: Shauna Clark Phone: (714) 384-5122 FAX: (714) 384-5461 The date of such personal delivery or fax, or the next day if by express delivery, or the date three (3) days after mailing, shall be deemed the date on which such notice is effective. (c) Nothing contained herein shall be deemed to create, and the parties do not intend to create, any relationship of partners or joint ventures as between CITY and ME!U. Neither CITY nor ME!U shall be or hold itself out as the agent of the other under this Agreement. (d) ME!U reserves the right to terminate this Agreement at any time upon sixty (60) days prior written notice; provided, however, that ME!U shall not terminate this Agreement during an ME!U academic semester; and provided further, however, that any such termination shall be in connection with the termination, sale or other disposition of a majority of ME!U's other educational affiliate agreements. (e) CITY reserves the right to terminate this Agreement at any time upon sixty (60) days prior written notice; provided, however that CITY shall not terminate this Agreement during an ME!U academic semester; and provided further, however, that any such termination shall be only in the event of non-appropriation of funds to the Telecommunications Division of the CITY or in the event that CITY no longer controls the channel on which the Service is distributed in any relevant Cable System. (f) For purpose of this Agreement, "System Operator" shall CATV-ME/U.Agr 8 February 25, 1992 mean the operator of any Cable System, and "Operating Area" shall mean the geographical area in which a System Operator is authorized to construct, operate, manage or maintain a cable television or satellite master antenna system by appropriate governmental authority. (g) The provisions of this Agreement are not intended to be for the benefit of any third party (including without limitation any System Operator or Cable System subscriber), and no third party (including without limitation any system Operator or Cable System subscriber), shall be deemed to have priority of contract with either of the parties hereto by virtue of this Agreement or the delivery of the Service. (h) A waiver by either party of any term or condition of this Agreement in anyone instance shall not be deemed or construed as a continuing waiver or a waiver of any subsequent breach thereof. This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements oral or written, between the parties hereto. This Agreement may not be modified except in writing executed by both parties hereto. (i) This Agreement and all collateral matters shall be construed in accordance with the internal laws of the State of California applicable to agreements fully made and to be performed therein, irrespective of the place of actual execution. (j) This Agreement is subject to all current and future applicable federal and state laws and regulations and the current provisions of the charter, ordinances and resolutions of the CITY. The invalidity or unenforceabili ty of any provision of this CATV-ME/U.Agr 9 February 25, 1992 Agreement shall in no way affect the validity or enforceability of other provision of this Agreement. IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of 1 ') -, , 1992. President ION UNIVERSITY I, L ATTEST: ~~R~~ Clerk Approved as to form and Legal Content Approved as to form and Legal Content ELIZABETH M. STEELE Attorney at Law JAMES F. PENMAN Ci ty ~ttorney By: lk--. J t~L U "Lu3aAA/:Ii1(4AUJ-/ CATV-ME/U,Agr 10 February 25, 1992 FRANCHISE AREA(S) City of San Bernardino * EXHIBIT A (Grant of License) SYSTEM(S) NAME BASIC SUBSCRIBERS Comcast 21,571* In City; 37,071 in system. CATV-ME/U.Agr LAUNCH DATE 2/1/92 CHANNEL POSITION 48 February 25, 1992 EXHIBIT B CITY shall initially distribute the Service on a full time basis, 24 hours a day, seven days a week, reserving for itself the use of the hour between 5 and six p.m., Monday through Friday of each week. CITY reserves the rights to review the extent of its carriage of the Service on a semester basis and shall be entitled to notify ME/U that it desires to reduce the number of hours that it is distributing ME/u; provided, however, that any decision to reduce the number of hours that ME/U is distributed may only be implemented at the end of any then current ME/U academic semester; and provided further, however, that CITY may not reduce its carriage of the Service to less than eight (8) hours per day at any time during the term of this Agreement. It is further agreed that any programming inserted by CITY on the same channel as the Service is carried shall be of an educational, cultural or informational character. CATV-ME/U.Agr February 25, 1992 EXHIFIT "C" . Resolution No. 86-374: Resolution of the City of San Bernardino concerning the transfer of the cable television system franchise from Group W Cable, Inc. to Comcast Cablevision Corporation of California. (aoopted 9/24/86) WHERE~S, provided that such analysis demonstrates to Comcast that such expansion in channel capacity is economically, technically and financially feasible, Comeast will commit funds for such channel capacity expansion to be completed no later than early 1993; and WHERE~S, Comcast will design for expansion of channel capacity to 450 MHz (54 channels), however, Comcast may find tha~ a phased-in expansion of channel capacity over time is a more feasible approach. This means that Comcast may upgrade the plant to 300 MHz (36 channels) initially, then expand to 360 MHz (42 channels), or 450 MHz (54 channels), as warranted; and WHEREAS, within twelve (12) months of the date of this resolution, Comcast will install and maintain a program origination/ insertion point at City Hall, installation shall include labor, materials and equipment, and will provide to the City the production equipment listed on "Exhibit ~" of this Resolution, and Comcast will activate and maintain the program origination/insertion point located at the San Bernardino Library (6th and E Streets); and WHERE~S, Comcast, upon reaching at least 36 channels of its channel capacity expansion and system upgrading project, has agreed to provide, in accordance with Section 611 of the Cable Communications Policy ~ct of 1984, and in Section 14.08.030 of the San Bernardino Municipal Code, at least one channel without charge for the exclusive use of the City, one channel for educational uses and one channel for public access uses, provided however, that Comeast shall continue to provide one channel dedicated for Public, (~ Educational and Government Access, regardless of the cable system's channel capacity; and ,~ - Iy.? of -2- e;<H/vJi '-c