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HomeMy WebLinkAboutKC-142-21 City of BremertonKC-142-21 INTERLOCAL AGREEMENT BETWEEN KITSAP COUNTY AND THE CITY OF BREMERTON FOR PUBLIC ACCESS TELEVISION FUNDING This agreement is made and executed by and between Kitsap County (hereinafter referred to as the "County") and the City of Bremerton, a municipal corporation (hereinafter referred to as the "City") pursuant to Chapter 39.34 RCW. WHEREAS, the County and City each have the authority and responsibility to issue and oversee cable television franchise agreements; WHEREAS, Federal law allows cable television franchise authorities to require channel capacity for public/education/government programming access; and WHEREAS, the City and County cable television franchises provide that certain payments shall be made by the franchisees to support the public, educational, and government access channels (PEG fees); and WHEREAS, the County and City have previously executed agreements, which established the City of Bremerton as the entity responsible for the management and operation of the public/education/government access channel and community access center for video productions through Bremerton Kitsap Access Television (hereinafter referred to as "BKAT"); and WHEREAS, the Funding Agreement by and between the County and City related to BKAT- executed on May 6, 2011, and as subsequently amended and extended on December 14, 2015, will expire on December 31, 2020 and is in need of replacement; and WHEREAS, public access television serves a base need for public, education, and governmental programming in the City of Bremerton and throughout Kitsap County; and WHEREAS, the County and City have determined that they will provide support for public, education, and government access television through the dedication of certain PEG fees; NOW THEREFORE in consideration of the mutual covenant contained herein, it is hereby agreed as follows: SECTION 1. DEFINITIONS 1.1 Access Channel or Public, Educational, or Governmental Access (PEG) Channel means any channel or portion of a channel utilized for non-commercial programming where any member of the general public or any organization may be a user. 1.2 Bremerton Kitsap Access Television (BKAT) means the program, facilities and services provided by the City under this funding agreement. 1.3 Capital Funding means all funds received from the holding of a Franchise Agreement with a cable company and to be used for the purpose of funding equipment and facilities in support of on -air public education and government programming. 1.4 Channel means a portion of the digital or electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel. Page 1 of 9 1.5 Franchise or Franchise Agreement means all franchise agreements with cable companies, including all referenced material, adopted in the appropriate manner by the City of Bremerton and Kitsap County. 1.6 PEG Fees mean funds provided to the City and County via revenue collected from their respective Cable Franchises for the purpose of funding Public, Educational, or Governmental Access Channels pursuant to 47 CFR 76.1505 1.7 Users means any person, organization, institution, business, or group of persons representing such organization or business who use services or resources provided by BKAT or provide programming for cablecast on the access channels. SECTION 2. CITY'S RESPONSIBILITIES 2.1 Annual Reports. Prior to June 15 of each year, the City shall submit to the County the following information in paper form: a) Statistics on programming and services provided in the preceding year (January 1 — December 31). b) Current and complete listing of Public Access Advisory Committee members. c) Current and complete schedule of rates and charges for PEG access related activities. d) A summary of formal user and viewer complaints or comments along with BKAT responses from the preceding year (January 1 — December 31). e) A copy of the City's adopted budget and supporting schedules for BKAT for the current year. f) Unaudited financial reports for BKAT for the preceding year (January 1 — December 31). g) Annual report identifying funding support from PEG fees and support contracts for Bremerton Kitsap Access Television (BKAT). h) Minutes from BKAT Advisory Board Meeting beginning for the January 2021 meeting and provided each meeting occurrence on an annual basis for the duration of the agreement. i) Network status report describing service interruptions,' duration of outages, and cable company response and follow-up. 2.2 Channels Open to Public. The City agrees to keep the access channel(s) open to all potential users, subject to FCC regulations, the Cable Communication Policy Act of 1992, and other relevant laws. Neither the City, County, nor the cable company(s), shall have the authority to control the content of programming placed on the public access channel(s) so long as such programming is lawful. Provided that, nothing herein shall prevent the City, County or cable company(s) from producing or sponsoring programming, prevent the City, County, or cable company(s) from underwriting programming, or prevent the City, County or cable company(s) from engaging in activities designed to promote production of certain types of programming or use by targeted groups as consistent with applicable law and rules for use of channels. BKAT may promulgate and enforce policies and procedures which are designed to promote local use of the channel(s) and make the programming accessible to the viewing public, consistent with such time, manner, and place regulations as are appropriate. 2.3 Copyright Clearance. Before cablecasting video transmissions, the City shall require all Users to agree in writing that they have obtained all rights to all material cablecast and/or Page 2of9 clearances from broadcast stations, networks, sponsors, music licensing organizations representative and without limitation from the foregoing, and any and all other persons as may be necessary to transmit program material over BKAT authorized channels unless such clearance is otherwise provided by the cable company(s). The City shall maintain copies of all such user agreements consistent with Section 2.6 of this Agreement and applicable records retention laws 2.4 Distribution Rights. The City shall require that all programs produced with funds, equipment, facilities, or staff granted under this Agreement shall be distributed on the PEG channels. This Section shall not he interpreted to restrict other distribution, so long as such distribution is consistent with the rules and procedures governing such which shall be promulgated by BKAT and filed with the City and County. 2.5 Equipment. The City shall be responsible for maintenance of all equipment owned, leased, or loaned to it under this Agreement or purchased with funds provided pursuant to this Agreement. 2.6 Records. a) The City will maintain adequate records and information to demonstrate that funds received from the County pursuant to this Agreement are used for capital expenditures or debt service payments on debt issued to pay for capital expenditures. b) The City shall provide a quarterly budget status report available online at the City website or in the absence of an online report being available the City will provide such report directly to the County. c) Audit and Record Retention. The City and its Personnel shall retain all books, documents, and records relating to performance of the Agreement and Services provided in connection with this Agreement for six (6) years after completion of the Agreement or longer if requested by the County. All records shall be subject to inspection and audit by the County. Upon request, the City shall promptly make available to County a legible copy of all books, documents, and records at no cost to County. 2.7 Services. City shall manage the following access services: a) Operate the Access Channels — Public, Education, and Government. Operate the public, educational, and government access channel(s) provided by cable companies to the County for community access programming purposes in a manner which is in compliance with applicable laws, rules, regulations, and City and County franchise ordinances, with the primary purpose being to administer, coordinate, and assist those requesting access on a non-discriminatory basis. b) Operate a Community Access Center. Manage a video production facility and equipment which shall be available for public use at such hours and times as are determined by the City. Access to equipment and facilities shall be open to all those who satisfactorily complete training class(es) provided by BKAT or who receive a certification from BKAT, identifying said user(s) as having satisfied training requirements through means other than BKAT training classes. c) Provide Equal Access. Provide access to the use of the equipment, facilities, channels, and services provided hereunder on a non-discriminatory basis 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 BKAT. Page 3of9 d) Establish and Maintain Operating Policies and Procedure. Develop policies and guidelines for use and operation of access equipment, facilities, and channel(s) and file such policies, procedures, and rules with the City and County. e) Promotion. Actively promote the use and benefit of the public, educational, and government access channel(s) and facilities to cable subscribers, the public, access users, and the cable companies. f) Training. Train interested residents in the techniques of video production and provide technical advice in the execution of productions when requested. g) Other Activities. Based upon available funding, undertake other public, educational, and government access programming activities and services as deemed appropriate by the City and consistent with the obligation to facilitate and promote access programming and provide non-discriminatory access. h) Technical Standards. BKAT shall develop technical standards as a part of its operating rules and procedures. A decision, if any, to not cablecast a program due to technical problems shall in no way involve consideration of the actual content of the program itself. The City or County will not be held responsible for technical problems under control of the cable system. i) Charges for PEG Access Facilities, Equipment, Training, or Cablecast Time. The purpose of PEG access is to allow members of the community within the Service Area to communicate their activities, opinions, and ideas without interference or censorship. However, the City may find it necessary to charge a fee for use of facilities, equipment, cablecast time, or training. These fees will be limited to that which is necessary to cover operating costs of providing those services and facility use including a provision for administrative and overhead costs. Such fees shall not be used to interfere with or censor a user who seeks to produce PEG access programming. The City will also establish a process to enable individuals without sufficient funds to use equipment, facilities, cablecast time, or to receive training. j) Emergencies/Disasters. Access shall be provided to the broadcast facility for City and County broadcasting of public information during periods of local disasters and public emergencies. k) Public Service Notices. Provide equal access to County subscribers who are affiliated with government, education, or nonprofit organizations, to post public service announcements using a character generator. SECTION 3. COUNTY'S RESPONSIBILITIES 3.1 Annual Reports. By June 15 of each the County shall submit to the City the following information in paper form: a) A summary of formal user and viewer complaints or comments along with County responses from the preceding year (January 1 — December 31). b) Network status report describing service interruptions,' duration of outages, and cable company response and follow-up. c) A copy of Cable companies Annual Report submitted to the County from previous year. 3.2 Facilities. The County shall provide and the City shall use the facilities at 7266 Tibardis Rd. NW, Bremerton Washington for the use of BKAT for public access purposes consistent with the separate facilities agreement executed by the Parties. 3.3 Funding. The County shall pay to the City $178,700.00 from fees by the cable companies to support public access, public education, and government access channels (PEG Fees) for the purchase of capital equipment as outlined in Addendum A: BKAT Capital Page 4 of 9 Equipment Funding Plan. The City shall spend funds received from the County pursuant to this Agreement for equipment based on the attached Addendum A. Based on Addendum A, payment will be made by the County to the City as follows: $35,300.00 by April 30, 2021, $60,000.00 by April 30, 2022, $18,000.00 by April 30, 2023, $53,500.00 by April 30, 2024, and $11,900.00 by April 30, 2025. SECTION 4. TERM AND EFFECTIVE DATE 4.1 The Agreement will become effective on January 1, 2021 and terminate on December 31, 2025, unless terminated or extended. SECTION 5. TERMINATION OF AGREEMENT 5.1 For Convenience. The County or City shall have the right upon one hundred eighty (180) days written notice to the other party to terminate this Agreement without cause. If this Agreement is so terminated, the parties shall be liable only for performance rendered or costs incurred in accordance with the terms of this Agreement prior to the effective date of termination. 5.2 For Funding issues. If any funding is not available, withdrawn, reduced, or limited in any way, or if additional or modified conditions are placed on the funding after the Agreement becomes effective, County may terminate the Agreement. SECTION 6. COPYRIGHT AND OWNERSHIP 6.1 The City and County shall own the copyright of any programs which they may choose from time to time to produce. Copyright of programming produced by the public shall be held by such person(s) who produces said programming. 6.2 The City and County each shall own all equipment acquired directly by each entity prior to this Agreement and furnished to BKAT for the purposes of providing public, educational, and government access channel(s). All other property acquired prior to the effective date of this Agreement shall be the property of the City. Equipment or facilities purchased with funds received pursuant to this Agreement shall become the property of the City and County upon termination or non -renewal of this Agreement proportionate to their share of revenues contributed pursuant to this Agreement. SECTION 7. INSURANCE The County and City shall maintain, throughout the term of this Agreement, insurance adequate to protect both parties against claims that may arise as a result of the performance of this Agreement. Such insurance shall be placed with responsible insurers, self -insured, or carried through participation in an insurance pool at levels of coverage adequate to protect the County and the City against loss, and as ordinarily carried by municipalities engaged in similar operations. Upon request of the other party, County and City shall provide evidence of liability coverage. SECTION 8. INDEMNIFICATION The County and City shall each indemnify, defend, and hold the other harmless from and against any and all claims, suits, actions, causes of action, losses, damage, or liabilities arising or resulting from any alleged negligent or intentional acts or omissions arising out of the performance or non- performance of their respective responsibilities as set out in this agreement. SECTION 9. GOVERNING LAW AND VENUE The Agreement will be governed in all respects by the laws of the State of Washington, both as to interpretation and performance, without regard to conflicts of law or choice of law provisions. Page 5of9 Any action arising out of or in connection with the Agreement may be instituted and maintained only in a court of competent jurisdiction in Kitsap County, Washington or as provided by RCW 36.01.050. SECTION 10. ADMINISTRATION AND NOTICE 10.1 Administration. The following individuals are designated as representatives of the respective parties. The representatives shall be responsible for administration of this Agreement and for coordinating and monitoring performance under this Agreement. A party shall notify the other party in the event the party's representatives change. Where written notices are required under this Agreement, the notice shall be delivered to a party's representative at the address listed: County's Representative Department of Information Services Director Kitsap County 614 Division Street MS-21 Port Orchard, Washington 98366 City's Representative Director of Financial Services City of Bremerton 345 6` Street, Suite 100 Bremerton, WA 98337 10.2 Notice. Any notices, demands and other communications required by the Agreement will be effective if personally served upon the other party or if mailed by registered or certified mail, postage prepaid, return receipt requested, to the other party's Agreement Representative at the address below. Notice may also be given by facsimile with the original to follow by regular mail. Notice will be deemed to be given three (3) days following the date of mailing, or immediately if personally served. For service by facsimile, service will be effective at the beginning of the next working day. SECTION 11. NONDISCRIMINATION The Parties in performance of this Agreement shall not discriminate against any person on the basis of race, color, creed, religion, national origin, age, sex, marital status, sexual orientation, veteran status, disability, or other circumstance prohibited by federal, state, or local law, and shall comply with Title VI of the Civil Rights Act of 1964, P.L. 88-354 and Americans with Disabilities Act of 1990 in the performance of the Agreement. SECTION 12. INDEPENDENT CONTRACTOR For all purposes, each party will act in its individual capacity and not as an agent, employee, partner, joint venture, or associate of the other. An employee, agent, or subcontractor of one party shall not be deemed or construed to be the employee, agent or subcontractor of the other for any purpose whatsoever including responsibility for any federal or state tax, industrial insurance, or social security liability. SECTION 13. GENERAL PROVISIONS 13.1 Implied Agreement Terms. Each provision of law and any terms required by law to be in the Agreement are made a part of the Agreement as if fully stated in it. 13.2 Headings/Captions. Headings and captains used are for convenience only and are not a part of the Agreement and do not in any way limit or amplify the terms and provisions hereof. 13.3 No Party the Drafter. The Agreement is the product of negotiation between the parties, and no party is deemed the drafter of the Agreement. Page 6 of 9 13.4 Amendment. No amendment or modification to the Agreement will be effective without the prior written consent of the authorized representatives of the parties. 13.5 Assignments. Except with the prior written consent of the other party, each party shall not assign or transfer, including by merger (whether that party is the surviving or disappearing entity), consolidation, dissolution, or operation of law any right, duty, obligation, or remedy under the Agreement. Any purported assignment or transfer in violation of this section shall be void. 13.6 No Third -Party Beneficiary. No provision of the Agreement is intended to, nor will it be construed to, create any third -party beneficiary or provide any rights or benefits to any person or entity other than the County and the Agreement. 13.7 Severability. If a court of competent jurisdiction holds any provision of the Agreement to be illegal, invalid, or unenforceable, in whole or in part, the validity of the remaining provisions will not be affected, and the parties' rights and obligations will be construed and enforced as if the Agreement did not contain the particular provision held to be invalid. If any provision of the Agreement conflicts with any statutory provision of the State of Washington, the provision will be deemed inoperative to the extent of the conflict or modified to conform to statutory requirements. 13.8 Counterparts. The Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. 13.9 Entire Agreement. The parties acknowledge the Agreement is the product of negotiation between the parties and represents the entire agreement of the parties with respect to its subject matter. All previous agreements and representations, whether oral or written, entered into prior to this Agreement are hereby revoked and superseded by the Agreement. 13.10 Authorization. Each party signing below warrants to the other party, that they have the full power and authority to execute this Agreement on behalf of the party for whom they sign. Signatures on next page Page 7 of 9 Date this day of 2021 Dated this ZZ. day of HAQG p , 2021 CITY OF BREMERTON BOARD OF COUNTY COMMISSIONERS KITSAP COUNTY, WASHINGTON GREG WHEELER, Mayor RO L ER. i ir - L APPROVED AS TO FORM: D VMMF E, Co fjMffffner TAA A 1 /'0 lk—r-z Roger A. Lubovich, City Attorney CHARLOTTE GA I loner T�MEyST�: t`&-- oF' C041'�i Dana Daniels, C erk of the Boar �. >• c� C AT O Qom' m• •Z rn rn 5r," S '' .'yi ,Not Page 8 of 9 ADDENDI 0 t ti !O D IM A 3 i Pr i VENT FUI E 0 3 Page 9 of 9 MIS 0 G 3 g 3 0 3 — o g a a s 3 021-2 D25