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2010-288sAlegal\our documents\ordinances\10\unt interlocal public access channel ordinance.doc AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO ENTER INTO AN INTERLOCAL AGREEMENT WITH THE UNIVERSITY OF NORTH TEXAS FOR THE OPERATION OF THE CITY'S PUBLIC ACCESS CABLE TELEVISION CHANNEL; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, due to the passage of Chapter 66 of the Public Utility Regulatory Act in September, 2005 (Senate Bill 5), upon the expiration of existing local franchise agreements, cable operators in the State of Texas will be required to obtain franchise certificates from the Public Utility Commission rather than renewing agreements with local municipalities; and WHEREAS, as required by Senate Bill 5, when the local franchise agreement with Charter Communications expires on January 1, 2011, Charter will obtain the appropriate State of Texas franchise certificate; and WHEREAS, upon obtaining a State of Texas franchise certificate, Charter will no longer be required to maintain a local operating agreement with the City nor to continue operation of the public access channel and has advised the City that it intends to terminate the provision, maintenance and operation of the public access channel effective January 1, 2011; and WHEREAS, it is in the best interest of the City, and the residents thereof, that the provision, maintenance and operation of the said cable television public access channel continue after January 1, 2011; and WHEREAS, UNT has agreed to cause the Mayborn School of Journalism to provide, maintain and operate the said cable television public access channel for and on behalf of the City; WHEREAS, the City Council finds that the Interlocal Agreement is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION_ 1_. The findings and recitations contained in the preamble of this Ordinance are incorporated herein by reference. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Interlocal Agreement of behalf of the City with the University of North Texas. The City Manager, or his designee, is hereby authorized to carry out the rights and duties of the City under the Interlocal Agreement including the expenditure of funds provided for therein. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the„_ -- day of 2010. sAlegal\our documents\ordinances\10\unt interlocal public access channel ordinance.doc � s MARK BUR It O'� 1 Cs J MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APP VEDA.. ["O LEGAL FO ANITA BURGESS, CITY ATTORNEY w s:\legal\our documents\contracts\10\2010 untcaNpeg.doc COUNTYTHE STATE OF TEXAS § D' ■ �Iml MOM E THIS AGREEMENT is made and entered into by and between The University of North Texas, hereinafter "UNT," and the City of Denton, Texas, a corporate and political body duly organized and existing under the laws of the State of Texas, hereinafter the "City." UNT and the City are referred to individually as "Party" and are collectively referred to herein as "Parties." This Agreement is for the purpose of providing for the operation of the City's public access cable television channel, as described in attached Exhibit "A," hereinafter "the Project." WHEREAS, UNT and the City mutually desire to be subject to the provisions of Texas Government Code Chapter 791, the Interlocal Cooperation Act, which provides authorization for a local government to contract with one or more local governments or other state agencies to perform governmental functions and services under the terms of the Act; and WHEREAS, Charter Communications ("Charter") currently has a franchise agreement with the City for the provision of cable television service within the City; and WHEREAS, pursuant to the said franchise agreement Charter provides, maintains and operates a public access channel on its cable television network; and WHEREAS, due to the passage of Chapter 66 of the Public Utility Regulatory Act in September, 2005 (Senate Bill 5), upon the expiration of existing local franchise agreements, cable operators in the State of Texas will be required to obtain franchise certificates from the Public Utility Commission rather than renewing agreements with local municipalities; and WHEREAS, as required by Senate Bill 5, when the local franchise agreement with Charter Communications expires on January 1, 2011, Charter will obtain the appropriate State of Texas franchise certificate; and WHEREAS, upon obtaining a State of Texas franchise certificate, Charter will no longer be required to maintain a local operating agreement with the City nor to continue operation of the public access channel and has advised the City that it intends to terminate the provision, maintenance and operation of the public access channel effective January 1, 2011; and WHEREAS, it is in the best interest of the City, and the residents thereof, that the provision, maintenance and operation of the said cable television public access channel continue after January 1, 2011; and sAlegal\our documents\contracts\ 1 0\20 10 untcatvpeg.doc WHEREAS, UNT has agreed to cause the Mayborn School of Journalism to provide, maintain and operate the said cable television public access channel for and on behalf of the City; NOW, THEREFORE, UNT and the City, for the mutual consideration stated herein, agree and understand as follows: WITNESSETH: I. This Agreement shall be effective on January 1, 2011. Unless otherwise terminated as provided herein, the term of this Agreement shall continue for an initial term of three years and shall automatically renew and continue thereafter until terminated. F" Pursuant to Texas Government Code §791.011, the Parties hereto agree that the purpose of this Agreement is to ensure that certain governmental functions and services in the area of the provision, maintenance and operation of cable television public access channels to the citizens of the City of Denton continue to be performed. The Parties further agree that each of them is authorized to perform the functions and services individually. M A. As described in this Agreement and in Exhibit A attached hereto and incorporated by reference into this Agreement for all purposes, UNT will cause the Mayborn School of Journalism to manage and conduct all day-to-day operations of the City's public access channel ("Channel") on two cable systems (Charter Channel 25 and Verizon Channel 39). Programming will originate from the UNT campus pursuant to the operational guidelines attached hereto as Exhibit B, which are incorporated by reference into this Agreement for all purposes. In order for UNT to be able to operate the Channel, the City shall ensure the continued right to broadcast on the specified cable systems. In the event the City is unable to do so, this Agreement shall terminate. The City also will provide all capital equipment required for the launch of the Channel and shall be responsible for the ongoing maintenance and repair of such equipment. Said capital equipment shall at all times remain the property of City and shall be covered by the City's insurance. Other provisions of this Agreement notwithstanding, UNT shall be responsible for repairing or replacing the equipment if it is damaged by the willful or negligent act of UNT, its agents, employees, officers or representatives. Upon termination of this Agreement said equipment shall be returned to City. This exchange of services and equipment is deemed adequate consideration for the obligations exchanged by the Parties herein. Page 2 Olegal\our documents\contracts\ 1 0\20 10 untcatvpeg.doc IVA UNT shall not be obligated to expend a certain amount of funds in the performance of its obligations as herein specified and this Agreement shall not be interpreted or construed as an obligation to expend a certain amount of funds towards the Project. V. In the performance of their respective duties hereunder, the Parties hereto and their respective employees and agents, are at all times acting and performing' as independent contractors of each other. No Party will have the authority to act for or bind another Party in any respect or to incur or assume any expense, debt, obligation, liability, tax, or responsibility on behalf of or in the name of another Party hereto. UNT agrees and understands that UNT, its employees, servants, agents and representatives shall at no time represent themselves to be employees, servants, agents and/or representatives of the City. The City agrees and understands that the City, its employees, servants, agents and representatives shall at no time represent themselves to be employees, servants, agents and/or representatives of UNT. VI. UNT shall be responsible for the acts, negligence and/or omissions of all UNT employees, agents, subcontractors and/or contract laborers and for all other persons doing work under a contract or agreement with UNT. The City shall be responsible for the acts, negligence and/or omissions of all City employees, agents, subcontractors and/or contract laborers and for all other persons doing work under a contract or agreement with the City. Mfg This Agreement is not intended to extend the liability of the Parties beyond that provided by law. Neither UNT nor the City waive, nor shall be deemed to have hereby waived, any immunity or defense that would otherwise be available to it against claims made by third parties. The validity of this Agreement and of any of its terms or provisions, as well as the rights and duties of the Parties hereto, shall be governed by the laws of the State of Texas. Further, this agreement shall be performable in Denton County, Texas. Page 3 0 In the event that any portion of this Agreement shall be found to be contrary to law, it is the intent of the Parties hereto that the remaining portions shall remain valid and in full force and effect to the extent possible. W The undersigned officer and/or agents of the Parties hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the Parties hereto, and each party hereby certifies to the other that any necessary resolutions extending said authority have been duly passed and are now in full force and effect. XII. This Agreement represents the entire agreement between UNT and the City and supersedes all prior negotiations, representations and/or agreements, either written or oral. This Agreement may be amended only by written instrument signed by the governing bodies of both UNT and the City or those authorized to sign on behalf of those governing bodies. EM This Agreement becomes effective when signed by the last party whose signing makes the respective Agreement fully executed. M This Agreement may be terminated by the written agreement of the Parties. This Agreement may also be terminated in whole or in part by UNT or the City upon one hundred eighty (180) days written notice to the other Party, with or without cause. Written notice shall be delivered via certified mail, return receipt requested. Notices shall be directed as follows: For City: George C. Campbell City Manager 215 E. McKinney Street Denton, Texas 76201 For UNT: Michelle Williams Associate General Counsel University of North Texas 1155 Union Circle, #310907 Denton, Texas 76203-5017 Copy To: Dr. Mitch Land, Interim Dean, Mayborn School of Journalism University of North Texas 1155 Union Circle, #311460 Denton, Texas 76203-5017 Page 4 sAlegal\our documents\contracts\10\2010 untcatvpeg.doc } Executed in duplicate originals this � -_ duty of � ��'`��� R� �� �? 2010.. CITY OF DENTON, TEXAS City of Denton 215 E. McKinney Denton, Texas 76201 Geo ge C. Campbell City Manager ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By a _a [7N VEI SITY OF NOWTI-1 TEXAS 1155 Un pn Circle, #311460 Denton, Texas 76A3 5017 Jean Bush, Acting Senior Associate m Vice President for Finance `By: :.�� F OVED AS TO LEGAL FORM: By 4i Associate; G6heral COLIfisc l Page 5 sAlegal\our documents\contracts\ 1 0\20 10 untcawpeg.doc Exhibit A The Frank W. and Sue Mayborn School of Journalism ("Mayborn") at the University of North Texas ("UNT") will operate the City of Denton's public access channel, currently referred to as Charter Channel 25 and Verizon Channel 39 ("Channel") on a schedule of 24 hours a day, 7 days a week, via an automated system. The City of Denton ("City") will be responsible for ensuring the continued right to broadcast Channel programming via Charter and Verizon. The name of the Channel to be operated by Mayborn will be mutually agreed to by the City and Mayborn. PEG funds from the City of Denton will be used for all capital expenses related to the launch of Channel. The City will be responsible for the provision of equipment necessary to operate the Channel and for the ongoing maintenance and repair of such equipment. The City of Denton and Mayborn will meet annually to discuss equipment upgrades, maintenance needs, and Exhibit B. In the performance of the Agreement, the City and Mayborn will work in accordance with the guidelines provided under Exhibit B or as otherwise agreed to between the Parties, regarding expectations and opportunities for the public to use facilities and provide content. In the event an issue arises related to a conflict between the guidelines used in the operation of Channel and guidelines followed by other UNT departments in the operation of other channels, then Mayborn and the City shall work together to find a mutually agreeable resolution to the conflict. The guidelines may also be revised in order to address a legal issue that arises related to their usage. Under this Agreement, the channel will be operated by assigned staff and faculty of the Mayborn School of Journalism, with oversight by the Dean of the Mayborn School of Journalism and the Chair of the Mayborn Department of News. The assigned faculty and staff of Mayborn will make all programming decisions, including but not limited to, decisions regarding appropriate content, time of day specific programming will be shown, how often programming will be shown and use of Mayborn produced programming. The assigned faculty and staff of Mayborn will also oversee the facilities and equipment, production, programming, studio production, and make emergency contacts with the appropriate entities in case of technical difficulties. Additional volunteer staffing will be provided by undergraduate students taking classes in the Mayborn School of Journalism and graduate students in the Mayborn Graduate Institute of Journalism. The image of the Channel will clearly reflect that it is a local/community public access channel, open to the citizens of Denton. The Mayborn School of Journalism will create programming including news, sports and general information programming, provide an outlet for community programming that reflects the needs and interests of the greater Denton community, provide access to studios at the Mayborn to those who meet specific criteria set up in guidelines, offer journalism classes in which students learn writing, reporting, shooting, editing, producing and production skills. If funding is available, the Mayborn faculty and staff might teach media production workshops for youth, the public, and media professionals, in part, to create content for the Channel. Page 6 s:\legal\our documents\contracts\10\2010 untcatvpeg.doc Exhibit B 011E1CA"I IO AL CXIDEl,INES The purpose of the City's public access channel is to provide a cable television channel ("Channel") on which Denton citizens can cablecast recorded programming produced with their own resources, or recorded programming produced elsewhere but sponsored by a Denton citizen. The use includes content produced by and/or provided by students or classes affiliated with the Mayborn School of Journalism at the University of North Texas ("UNT"). Giving voice to the people of Denton, as provided by the First Amendment, while providing educational opportunities in community media to citizens, students and professionals. 1. Any person utilizing the Channel for programming must be 18 years of age, a resident of Denton, Texas, and/or a Mayborn student or faculty member or a person or group approved by the Mayborn School of Journalism. Proof of eligibility is required in order to use the Channel. 2. Individuals or Non -Profit Organizations that are not citizens of Denton but wish to produce a program for the Channel may do so by securing the required sponsorship. Individuals from within the Metroplex must secure 5 Denton citizen sponsors. Non-profit organizations groups from within the Metroplex must secure 5 Denton citizen sponsors. Individuals from outside the Metroplex must secure 10 Denton citizen sponsors. Signed Declaration of Sponsorship forms are required for each program produced by a non-resident. 3. Before a program is scheduled on the Channel, each participant must sign a Statement of Compliance indicating that the participant has read and is in agreement with the requirements contained in this pamphlet. Failure to sign and follow the terms of the Statement of Compliance will result in denial of Channel privilege. 4. Channel privilege will be suspended if the individual appears to be under the influence of drugs or alcohol in person or in the program, interferes with the orderly conduct of business, refuses to cooperate with or abuses staff, or abuses in any way the privilege of showing video programming on the Channel. 5. A user of the Channel must not represent to any other party that he or she, or any other person involved in the Channel's cable casting, represents the Channel in any manner. Violation of this rule will subject the user to immediate forfeiture of all privileges. 6. The Channel cannot be utilized by participants for direct financial gain, commercial purpose, or political endorsement. Page 7 s:\legal\our documents\contracts\10\2010 untcatvpeg.doc 7. Ownership of the creative rights to programming shown on the Channel belongs to the producer of the program. 8. If there is a complaint about the content of a program running on the Channel, a committee from the Mayborn School of Journalism with representation from the City of Denton will review the program. If it is determined that the content of the program is indecent according to FCC standards, considered indecent by the community standards, includes obscene material, sexually explicit conduct or material soliciting or promoting unlawful conduct, or contains material otherwise prohibited by FCC regulations, it may result in the program being removed. Questions, problems or complaints about the operation of the Channel should be addressed first to the designated staff at the Mayborn School of Journalism. The Mayborn staff will work with the complainant to resolve the problems. The Mayborn staff will keep a file of complaints and resolutions, which will be copied to the City of Denton. Should the complainant not be satisfied, s/he may then contact the Cable Television Supervisor at the City of Denton. 9. Fees for participation will be set by The Mayborn School of Journalism, and will be reviewed by the operator on an annual basis. 10. The studio used to produce the Channel will be used for other purposes of the Mayborn School of Journalism. However, notwithstanding the foregoing, equipment purchased with PEG funds will be used solely for programming that is intended to be shown on the Channel (in accordance with these guidelines, programming may be reviewed prior to being aired on the Channel and some programming may not be shown due to failure to meet content and technical standards as set forth herein). Usage of equipment purchased with PEG funds will be monitored by the Mayborn staff. 11. Contact information for the Mayborn School of Journalism and the City of Denton will be plainly posted in the studio used to produce programming for the Channel. 1. All programming cablecast on the Channel must be noncommercial in nature; i.e. not supported by paid advertising unless in an appropriate PBS -like sponsorship, or endorsements for individuals or businesses. 2. The user is responsible for obtaining all copyrights and or permissions necessary to cablecast any program material on the cable system and is liable for any violation of law which results from unauthorized use. All programming cablecast on the Channel will not include obscene material, sexually explicit conduct or material soliciting or promoting unlawful conduct.I 1 Sec. 76.701 Leased access channels. (a) Notwithstanding 47 U.S.C. 532(b)(2) (Communications Act of 1934, as amended, section 612), a cable operator, in accordance with 47 U.S.C. 532(h) (Cable Consumer Protection and Competition Act of 1992, section 10(a)), may adopt and enforce prospectively a written and published policy of prohibiting programming which, it reasonably believes, describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards. (b) A cable operator may refuse to transmit any leased access program or portion of a leased access program that the operator reasonably believes contains obscenity, indecency or nudity. Note to paragraph(b): "Nudity" in paragraph (b) is interpreted to mean nudity that is obscene or indecent. [ 4 l R 783733 , May 23, 1997, as amended at 6�l FI 351 ,July 2, 1999] Page 8 sAlegal\our documents\contracts\10\2010 untcawpeg.doc 4. All programming cablecast on the Channel will not include promotional material concerning products or services presented for the purpose of any solicitation of money or other items of value. 5. All programming cablecast on the Channel will not include political endorsements. 6. All programming cablecast on the Channel will not include material which constitutes libel, slander, invasion of privacy or publicity rights, unfair competition, violation of trademark or copyright, or which might violate any local, state, or federal law. 7. According to federal law, program providers are responsible for the content of programs they submit. 8. In the case of denied access to the Channel according to federal guidelines, disputes are to be settled by the federal district courts before the FCC will entertain complaint procedures. 9. All programming scheduled on the Channel will be subject to all laws, rules and regulations present in the Cable Television Consumer Protection and Competition Act of 1992 and subsequent FCC regulations. TOM 1 0 10112" el All studio usage, equipment usage and programs shown on the City's public access channel are scheduled by the staff, faculty, students or persons designated by the Mayborn School of Journalism who are so assigned to the Channel's duties. I DATA 1 IN Did I Dieu 1. All DVDs submitted must meet the Channel's technical requirements. 2. All DVDs submitted must be clearly labeled. 3. Any DVD that is rejected by the channel operator because of a playback problem will be returned to the producer with a copy of the discrepancy report. 4. The preferred length of programming is 28, 58 or 88 minutes. 5. Programs may be reviewed in advance of running on the cable system. 6. All completed and properly labeled DVDs submitted for cablecast on the Channel should be brought or mailed to an address determined in conjunction by UNT and the City of Denton. 7. If the DVD is to be returned by mail, a self-addressed, stamped mailing envelop is required. 8. All DVDs must meet the Channel's technical standards. Programs will preferable be a 4:3 format. All programs must be submitted on DVD - R discs. Only one program per disc, do not use chapters or titles. The preferred length of programming is 28, 58 or 88 minutes. Page 9 sAlegal\our documents\contracts\10\2010 untcatvpeg.doc 9. AUDIO: Audio must be sufficient to produce good sound on television sets with minimum sound quality unless low or distorted sound is part of the artistic element of the program. Audio must not have audio levels that are too hot (loud, distorted, hard to understand.) or too low (faint, in the distance, cannot hear person speaking.). 10. VIDEO: Video must be of high enough quality to produce a good image on home television sets with low resolution, and can be easily seen by viewers. 11. LIGHTING: Lighting on the location must be sufficient to produce a good image on home television sets with low resolution, unless dark images are part of the artistic element of the program. 12. Copies of programs are due by 5 p.m. Monday the week before they are to be cablecast, unless an agreement is made for special circumstances with the staff, faculty, students or persons designated by the Mayborn School of Journalism to schedule programming. 13. Labeling of each DVD must be correct, consistent and contain the following information on the disc: Program title: Date submitted: Length: Producer: Name: City: State: Zip: Phone: Program Title: 1.. I have received, read, and am familiar with the contents of ., guidelines and requirements. I understand that the Channel, operated by the Mayborn School of Journalism at the University of North Texas, reserves the right to suspend or revoke the privilege of any user to utilize the Channel if that user is in violation of any of the requirements. 2. I will thoroughly familiarize myself with the contents of any program material I submit for cablecast and certify that it does not contain: a. obscene material, sexually explicit conduct or material soliciting or promoting unlawful conduct; Page 10 sAlegal\our documents\contracts\10\2010 untcatvpeg.doc b. promotional material concerning products or services presented for the purpose of any solicitation of money or other items of value; c. political endorsements; d. material which constitutes libel, slander, invasion of privacy or publicity rights, unfair competition, violation of trademark or copyright, or which might violate any local, state, or federal law. 3. I assume full responsibility for the content of all program material cablecast and will ensure that such program material will not violate any right of any third party. 4. I have obtained, or before any program material is cablecast I will obtain, all approvals, clearances, licenses, etc., for the use of any program which I cablecast, including but not limited to approvals by broadcast stations, networks, sponsors, music licensing organizations, copyright owners, performers' representatives, all in or referred to in the program material, and any other approvals that to transmit program material over the cable system. Proof of those permissions will be provided to the Mayborn School of Journalism. 6. I agree that I shall not represent myself or any other person involved in my program as an employee, representative or agent of the City of Denton, the University of North Texas, or the University of North Texas System. 7. I agree that the Channel will not be used for any personal gain or other commercial purpose. 8. I understand that I am responsible for the content of any programming I produce with my own equipment or with the Channel's equipment, should the Mayborn School of Journalism provide that resource to me. 9. I understand that false or misleading statements made in this statement are grounds for forfeiture of the right to use the Channel in the future. I am am not --- a resident of the City of Denton. Date: Page 11 Signature of Producer: