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HomeMy WebLinkAboutRES 13-142 RESOLUTION NO.13-142 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager is hereby authorized to execute an Agreement for Programming Services between the City of Beaumont and Lamar University for operation of the public, educational, and government (PEG) channel. The agreement is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 9th day of July, 2013. 1�1 b - Mayor B66ky Ames - r THE STATE OF TEXAS § COUNTY OF JEFFERSON § 1. PARTIES A. Address THIS AGREEMENT FOR PROGRAMMING SERVICES ("Agreement") is made on the Countersignature Date between the City of Beaumont, Texas ("City"), a municipal corporation, and LAMAR UNIVERSITY("Contractor"), a member of the Texas State University System. The initial addresses of the parties, which one party may change by giving written notice to the other party, are as follows: City of Beaumont Contractor City Manager Lamar University City of Beaumont Dr. Russ A. Schultz, Dean P. O. Box 3827 College of Fine Arts& Communication Beaumont, Texas 77704 P.O. Box 10003 Phone: 409-880-3715 Beaumont, TX 77710 With a copy to: Lamar University W. Mike Spears, CTCM Contract Administrator P.O. Box 10003 Beaumont, TX 77710 II. DEFINITIONS As used in this Agreement, the following terms have the meanings set out below: "Agreement" means this contract between the Parties, including all exhibits and any written amendments authorized by City Council and Contractor. Page 1 of 18 EXHIBIT`A" "City' is defined in the preamble of this Agreement and includes its successors and assigns. "City Manager"means the City Manager of the City of Beaumont or the person he or she designates. "Contract Term" means the period commencing on the Effective Date and ending one year thereafter or on the last day of the ninth renewal year, whichever is later. "Contract Year"means each twelve-month period commencing on either the Effective Date or any anniversary of the Effective Date during the Contract Term. "Contractor" is defined in the preamble of this Agreement and includes its successors and assigns. Countersignature Date means the date shown as the date countersigned on the signature page of this Agreement. "Documents" mean notes, manuals, notebooks, plans, computations, databases, tabulations, exhibits, reports, underlying data, charts, analyses, maps, letters, models, forms, photographs, the original tracings of all drawings and plans, and other work products (and any modifications or improvements to them)that Contractor prepares or provides under this Agreement. "Education Access Programming" means the services to be provided by Contractor relating to the Education Channel as more fully described in this Agreement, including, without limitation, those services described in Article III below. "Effective Date" means the counter signature date. "LUTV Channef' means one PEG Channel assigned to the City to Contractor for operation and management by Contractor pursuant to the terms hereof. Page 2 of 18 "Parties" mean all the entities set out in the Preamble who are bound by this Agreement. "PEG Channels" means the channel space for the carriage of public, educational and government access programming required by law to be provided by the City's cable television franchises. III. DUTIES OF CONTRACTOR A. Scope of Services (1) Scope, generally, Contractor shall manage and operate the functions and activities involved in developing, producing and providing Educational Access Programming, particularly post-secondary programming and general community interest programming geared towards education. Such terms shall include all services and facilities reasonably necessary to: (a) Manage and operate the LUTV Channel and associated facilities. (b) Provide a means of production and delivery of Educational Access Programming for the LUTV Channel to cable systems. (c) Provide all programming, facilities, equipment, materials and personnel necessary to fulfill Contractor's obligations under this Agreement. (d) Implement internal, financial and operating controls to ensure efficient use of all funds and other resources provided hereunder, including channel space. Page 3 of 18 (e) Support the receipt of grants and donations to augment funding. (2) Development of access strategies. As further to be provided hereunder, Contractor shall develop and implement strategies to achieve the following goals and objectives: (a) to ensure that top quality Educational Access Programming is available that reflects the activities, culture, concerns and interests of the citizens of the City and promotes education, information and understanding within the community; (b) to involve the community in the development and production of Educational Access Programming; and (c) to improve the viewership of public access programming by improving the quality of Educational Access Programming. (3) Policies and procedures. In connection with the performance of its obligations hereunder, Contractor shall establish, implement and enforce quality control and other procedures for programming consistent with the Policies and Procedures contained in Exhibit A hereto. Educational Access Programming must be consistent with the goals, objectives and the scope of services stated in this Agreement throughout the Contract Term. (4) Use of access facilities for personal purposes. Contractor, its board members, officers or employees shall not engage in programming or other activities that use resources provided hereunder, including channel space, for Page 4 of 18 personal gain or to otherwise promote the personal interests of those individuals not consistent with the goals and objectives described herein. B. Reports and Records (1) Rules, regulations and policies. Contractor shall, within 60 days of the approval of this Agreement by the City Council, provide the City with a complete copy of all of Contractor's rules, regulations and policies relating to the subject matter of this Agreement. Contractor shall provide the City with a copy of any changes to such rules, regulations and policies within ten (10)days of their adoption. (2) Reports. Within 60 days of the end of each year of this Agreement, Contractor shall provide to the City a written annual report. The annual report shall consist of a summary of activities relating to the City's goals and objectives for educational access programming. A final report comprised of all items in Section B(3) since the last annual report to the end of the final Contract year above shall be submitted no more than 60 days after the end of the Term and shall also include a summary of the entire Term. The report shall include a sample daily programming schedule for one (1)week of the year. (3) Miscellaneous reporting. Contractor shall promptly report to the City in writing any conditions, transactions, situations or circumstances of which Contractor is aware that would impede or impair the proper and timely performance of this Agreement. Page 5 of 18 (4) Performance review. To assure that Contractor is complying with the terms of this Agreement, the City shall conduct a review of Contractor's performance under this Agreement upon completion of the first Contract Year. If the City finds that Contractor is not in material compliance with all provisions of this Agreement, the City shall notify Contractor in writing of all deficiencies. Contractor shall have 30 days to cure any such deficiencies, unless the City provides otherwise. If Contractor does not cure all deficiencies in a timely manner to the satisfaction of the City, the City shall commence action to terminate this Agreement pursuant to Article V below. C. RELEASE TO THE EXTENT PERMITTED BY LAW, THE PARTIES AGREE TO RELEASE EACH OTHER, THEIR GOVERNING BOARD, AGENTS, EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES FROM ALL LIABILITY FOR INJURY, DEATH, DAMAGE, OR LOSS TO PERSONS OR PROPERTY SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT. D. Insurance Unless Contractor is self-insured pursuant to Chapter 2259 of the Texas Government Code, to self insure Contractor shall maintain in effect certain insurance coverage, which is described as follows: (1) Risks and Limits of Liability. Contractor shall maintain the following coverages and limits of liability: Page 6 of 18 (Coverage) Limit Automobile Liability $1,000,000 Includes Hired/Non-Owned Liability Medical Payments Not Covered Includes Broad Form Auto Uninsured/Underinsured Not Covered Physical Damage- Comprehensive $500 Physical Damage-Collision $500 i (2) Issuers of Policies. The issuer of any policy(1)shall have a Certificate of Authority to transact insurance business in Texas or(2) shall be an eligible non-admitted insurer in the State of Texas and have a Best's rating of at least B+ and a Best's Financial Size Category of Class VI or better, according to the most current edition of Best's Key Rating Guide. (3 Insured Parties. Each policy, except those for Workers' Compensation, Employer's Liability, and Professional Liability, must name the City(and its officers, agents, and employees) as Additional Insured parties on the original policy and all renewals or replacements. (4) Deductibles. Contractor shall be responsible for and pay any claims or losses to the extent of any deductible amounts and waives any claim it may have for the same against the City, its officers, agents, or employees. Page 7 of 18 /00 (5) Cancellation. Each policy must state that it may not be cancelled, materially modified, or non-renewed unless the insurance company gives the City thirty(30) days' advance written notice. Contractor shall give written notice to the City within five (5)days of the date on which total claims by any party against Contractor reduce the aggregate amount of coverage below the amounts required by this Agreement. in the alternative, the policy may contain an endorsement establishing a policy aggregate for the particular project or location subject to this Agreement. (6) Subrogation. Each policy must contain an endorsement to the effect that the issuer waives any claim or right of subrogation to recover against the City, its officers, agents or employees. (7) Endorsement of Primary Insurance. Each policy, except Workers' Compensation and Professional Liability, if any, must contain an endorsement that the policy is primary to any other insurance available to the Additional Insured with respect to claims arising under this Agreement. (8) Liability for Premium. Contractor shall pay all insurance premiums and the City shall not be obligated to pay any premiums. (9) Subcontractors. Contractor shall require all subcontractors providing services pursuant to this Agreement to carry insurance naming the City as an additional insured and meeting all of the above requirements except amount. The amount must be commensurate with the amount of the subcontract, but in no case less that $500,000 per occurrence. Contractor shall provide copies of insurance certificates to the City. Page 8 of 18 (10) Proof of Insurance. (a) On the Effective Date and at any time during the term of this Agreement Contractor shall furnish the City with certified copies of Contractor's actual insurance policies. (b) Contractor shall continuously and without interruption maintain in force the required insurance coverages specified in this Section. If Contractor does not comply with this requirement, the City Manager, at his or her sole discretion, may immediately suspend Contractor from any further performance under this Agreement and begin procedures to terminate for default. The City shall never waive or be estopped to assert its right to terminate this Agreement because of its acts or omissions regarding its review of insurance documents. (11) Other Insurance. If requested by the City, Contractor shall furnish adequate evidence of Social Security and Unemployment Compensation Insurance, to the extent applicable to Contractor's operations under this Agreement. E. Self Insurance. As an alternative, Contractor may insure the above coverages under a plan of self-insurance, subject to the restrictions set forth in this Section. On the Countersignature Date and at any time during the Term of this Agreement, Contractor must submit copies of its certificates of motor vehicle self-insurance from the Texas Department of Public Safety and its most recent audited financial statement showing Page 9 of 18 self-insurance reserves or other assets sufficient to pay judgments equal to the limits set forth above. Contractor shall also provide to the City documentation evidencing its process of reviewing and paying claims. Contractor's self-insurance must protect the City to the same extent as an additional insured on a policy issued by an insurance company. If Contractor's self-insurance program ceases or Contractor's assets or reserves are no longer sufficient to be adequate to meet required coverages, Contractor shall immediately notify the City of the lapse of coverages, and Contractor shall then obtain commercial insurance in accordance with the above requirements within ten (10) days of written notice from the City. F. Maintenance of Records At all times during the term of this Agreement and for five (5) years thereafter, the City shall have access to all books and records of Contractor related to the performance of this Agreement and may conduct any audit of such books and records as may be deemed necessary and proper by the City. Contractor shall make all information related to this Agreement available in Beaumont, Texas, to the City upon request. G. License and Permits Contractor shall obtain and pay for all licenses, permits and certificates required by any statute, ordinance, rule or regulation of any regulatory body having jurisdiction over the conduct of Contractor's operations and performance hereunder. IV. CONSIDERATION. Neither party shall receive, from the other, monetary compensation for services supplied hereunder, the consideration for this Agreement being the mutual benefits to Page 10 of 18 be received by the parties hereto and the citizens of the City and Contractor as a result hereof. V. TERM AND TERMINATION A. Contract Term This Agreement is effective on the Countersignature Date and remains in effect for five (5) years, unless sooner terminated under this Agreement. If a written request for renewal is made at least thirty(30)days before expiration of the then-current term, then upon expiration of the initial term, this Agreement is renewed for five (5) successive one-year terms upon the same terms and conditions. B. Default and Termination (1) The City may terminate this Agreement in the event of a default by Contractor should Contractor fail to cure such default within thirty(30) days of receiving written notice of default from the City. (2) Default may result from Contractor's failure to perform under the terms of the Agreement or from Contractor becoming insolvent, having a substantial portion of its assets seized for the benefit of creditors, or having a receiver or trustee appointed. Termination of this Agreement shall not act to limit the right of the City to any other remedy in law or otherwise. The City Attorney shall have the right to enforce all legal rights and obligations under this Agreement without further authorization. Contractor covenants to provide to the City Attorney all documents and records that the City Attorney deems necessary to assist in determining Contractor's compliance with this Agreement, with the Page I 1 of 18 exception of those documents made confidential by federal or state law or regulation. (3) Performance review. To assure that Contractor is complying with the terms of this Agreement, the City shall conduct a review of Contractor's performance under this Agreement upon completion of the first Contract Year. If the City finds that Contractor is not in material compliance with all provisions of this Agreement, the City shall notify Contractor in writing of all deficiencies. Contractor shall have thirty(30)days to cure any such deficiencies, unless the City provides otherwise. if Contractor does not cure all deficiencies in a timely manner to the satisfaction of the City, the City shall commence action to terminate this Agreement pursuant to Article V., Section B above. VI. MISCELLANEOUS A. Independent Contractor Contractor shall perform its obligations under this Agreement as an independent contractor and not as an agent or employee of the City. B. Force Majeure (1) Timely performance by both parties is essential to this Agreement. However, neither party is liable for reasonable delays in performing its obligations under this Agreement to the extent the delay is caused by Force Majeure that directly impacts the City or Contractor. The event of Force Majeure may permit a reasonable delay in performance but does not excuse a party's obligations to complete performance under this Agreement. Force Majeure means. fires, interruption of utility services, epidemics in the City, floods, hurricanes, Page 12 of 18 tornadoes, ice storms and other natural disasters, explosions, war, terrorist acts against the City or Contractor, riots, court orders, and the acts of superior governmental or military authority, and which the affected party is unable to prevent by the exercise of reasonable diligence. The term does not include any changes in general economic conditions such as inflation, interest rates, economic downturn or other factors of general application. (2) This relief is not applicable unless the affected party does the following: (a) uses due diligence to remove the effects of the Force Majeure as quickly as possible and to continue performance notwithstanding the Force Majeure; and (b) provides the other party with prompt written notice of the cause and its anticipated effect. (3) The City Manager will review claims that a Force Majeure that directly impacts the City or Contractor has occurred and render a written decision within fourteen (14) days. The decision of the City Manager is final. (4) The City may perform contract functions itself or contract them out during periods of Force Majeure. Such performance is not a default or breach of this Agreement by the City. (5) If the Force Majeure continues for more than ten (10)days from the date performance is affected, the City may terminate this Agreement by giving seven (7) days' written notice to Contractor. This termination is not a default or breach of this Agreement. CONTRACTOR WAIVES ANY CLAIM IT MAY HAVE Page 13 of 18 FOR FINANCIAL LOSSES OR OTHER DAMAGES RESULTING FROM THE TERMINATION. (6) Contractor is not relieved from performing its obligations under this Agreement due to a strike or work slowdown of its employees. Contractor shall employ only fully trained and qualified personnel during a strike. C. Severability If any part of this Agreement is for any reason found to be unenforceable, all other parts remain enforceable unless the result materially prejudices either party. D. Entire Agreement This Agreement merges the prior negotiations and understandings of the parties and embodies the entire agreement of the parties. No other agreements, assurances, conditions, covenants (express or implied), or other terms of any kind, exist between the parties regarding this Agreement. E. Written Amendment Unless otherwise specified elsewhere in this Agreement, this Agreement may be amended only by written instrument executed on behalf of the City(by authority of the City Council) and Contractor. The City Manager is only authorized to perform the functions specifically delegated to him or her in this Agreement. F. Applicable Laws This Agreement is subject to the laws of the State of Texas, the City Charter and Ordinances, the laws of the federal government of the United States, and all rules and regulations of any regulatory body or officer having jurisdiction. Venue for any litigation relating to this Agreement is Jefferson County, Texas. Page 14 of 18 G. Notices All notices required or permitted by this Agreement must be in writing and are deemed delivered on the earlier of the date actually received or the third day following: (1)deposit in a United States Postal Service post office or receptacle; (2)with proper postage (certified mail, return receipt requested); and (3)addressed to the other party at the address set out in Article 1, A of this Agreement or at such other address as the receiving party designates by proper written notice to the sending party. H. Captions Captions contained in this Agreement are for reference only, and, therefore, have no effect in construing this Agreement. The captions are not restrictive of the subject matter of any section in this Agreement. 1. Non-Waiver If either party fails to require the other to perform a term of this Agreement, that failure does not prevent the party from later enforcing that term or any other term. If either party waives the other's breach of a term, that waiver does not waive a later breach of this Agreement. An approval by the City Manager, or by any other employee or agent of the City, of any part of Contractor's performance does not waive compliance with this Agreement or establish a standard of performance other than that required by this Agreement and by law. The City Manager is not authorized to vary the terms of this Agreement. J. Inspections and Audits City representatives may have the right to perform, or have performed, (1) audits of Contractor's books and records, related to this Agreement, and (2) inspections of all Page 15 of 18 places where work is undertaken in connection with this Agreement. Contractor shall keep its books and records available for this purpose for at least five(5) years after this Agreement terminates. This provision does not affect the applicable statute of limitations. K. Enforcement The City Attorney, or his or her designee, may enforce all legal rights and obligations under this Agreement without further authorization. Contractor shall provide the City Attorney all documents and records that the City Attorney requests to assist in determining Contractor's compliance with this Agreement, with the exception of those documents made confidential by federal or state law or regulation. L. Ambiouities If any term of this Agreement is ambiguous, it shall not be construed for or against any party on the basis that the party did or did not write it. M. Survival Contractor shall remain obligated to the City under all clauses of this Agreement that expressly or by their nature extend beyond the expiration or termination of this Agreement. N. Parties In Interest This Agreement does not bestow any rights upon any third party, but binds and benefits the City and Contractor only. O. Successors and Asslans This Agreement binds and benefits the Parties and their legal successors and permitted assigns; however, this provision does not alter the restrictions on assignment Page 16 of 18 and disposal of assets set out in the following paragraph. This Agreement does not create any personal liability on the part of any officer or agent of the City or Contractor. P. Assianment and Govemance (1) Contractor shall not assign this Agreement without prior written consent of the City. (2) Management and control of Contractor shall be vested solely in its board of regents, and not in the City or its City Council. Such board of regents shall have jurisdiction over and ultimate responsibility for all aspects of managing and operating the function and activities involved in developing, producing and providing Educational Access Programming; provided that nothing contained in this Agreement shall prevent the board from delegating to its officers or employees any powers or responsibilities not otherwise prohibited under its bylaws, other than the making of policy. Contractor shall be solely responsible for ensuring that the programming on the LUTV Channel complies with the terms of this Agreement, and federal, state and local laws and for ensuring that the programming achieves the goals and objectives set forth in this Agreement. Q. Remedies Cumulative Unless otherwise specified elsewhere in this Agreement, the rights and remedies contained in this Agreement are not exclusive, but are cumulative of all rights and remedies which exist now or in the future. Neither party may terminate its duties under this Agreement except in accordance with its provisions. Page 17 of 18 EXECUTED in duplicate originals this the day of , 2013. CITY OF BEAUMONT By: Kyle Hayes, City Manager Date: LAMAR UNIVERSITY By: Dr. Cruse Melvin, Acting VP Finance & Operations. Date: Page 18 of 18