City Auditor - City Recorder - Council Ordinance - 176688 Portland Cable Access contract

AGREEMENT FOR SERVICES

This Agreement for Services (Agreement) is between the City of Portland, Oregon (City) and Portland Cable Access, a not-for-profit Oregon corporation (Contractor).

1. Recitals.

1.1 Contractor is a not-for-profit organization, organized in 1981, which provides community access services, training and outreach, and programs access channels on a City-wide basis.

1.2 The City has entered into cable services franchise agreements with TCI Cablevision of Oregon, Inc. and KBL-Portland Cablesystems, L.P. (“Franchises”), which require franchisees to provide certain resources dedicated for use by the public, governments and schools.

1.3 In accordance with its Franchises, the City may designate Non-commercial Public, Educational and Government (“PEG”) Access providers to control and manage the use of any or all access facilities and resources provided by the franchisee.

1.4 Under this Agreement, the City designates the Contractor as a PEG Access provider for purposes of Section 7 of Franchises, and assigns control and management of certain access facilities and resources under such Franchises.

1.5 Under an intergovernmental agreement to which the City is a party, the City has delegated responsibility to the Mt. Hood Cable Regulatory Commission (“MHCRC”) for overseeing PEG Access contract compliance and making PEG Access funding recommendations to the City. The MHCRC shall perform these responsibilities in regard to this Agreement.

1.6 The MHCRC has annually recommended to the City amounts to provide operational and capital funds to the Contractor, subject to the terms and conditions of the past agreement between the City and the Contractor. Continued annual contractor funding for Fiscal Years through the term of this Agreement are provided for under Section 9. Funds are anticipated to be available for this purpose in the budgets of the Office of Cable Communications and Franchise Management (“OCC/FM”) and the MHCRC, subject to annual appropriation by the City Council in the City’s budget process.

1.7 For fiscal year 2002-03, the City has determined that extraordinary circumstances exist causing severe financial constraints on the City resulting in the curtailment of City bureau budgets. The City has reduced the Contractor’s funding from FY 2001-02 for FY 2002-03 by $214,960 in accordance with Section 9.1(D) of this Agreement. The total amount of operational funding to be paid under Section 9.1(A) for FY 2002-03 shall be $767,492.

1.8 The City and Contractor have reached an agreement regarding the PEG resources designated for use by the Contractor under the City’s Franchises, together with the level of PEG access services to be provided by Contractor.

2. Definitions.

2.1 “Access” means the availability for use of a cable system by various agencies, institutions, organizations, groups and individuals in the community to acquire, create, and distribute Non-Commercial Programming not under the cable company's editorial control, including, but not limited to:

(A) “Public Access” means Access, on a nondiscriminatory basis, for organizations, groups or individual members of the general public to have editorial control over their Programming;

(B) “Educational Access” means Access where schools are the primary or designated Programmers or users having editorial control over their Programming;

(C) “Government Access” means Access where governmental institutions are the primary or designated Programmers or users having editorial control over their Programming; and;

(D) “PEG Access” means Public Access, Educational Access, and Government Access, collectively.

2.2 “Cable Services” shall have the meaning provided under Federal law and regulations.

2.3 “Capital” means the expenditure of funds for services, products or other resources, whose useful life can be expected to exceed a period of one year or longer.

2.4 “Community Needs Assessment” or “Assessment” means the assessment conducted by the Contractor, under Section 5.1, of the nature, degree and scope of issues, interests and concerns of the City’s residents, local governments, libraries, schools and community groups.

2.5 “Educational Institution” means any local educational institution, including primary and secondary schools, community colleges, colleges, universities and extension centers, and all similarly situated private and parochial educational institutions which have received the appropriate accreditation from the State of Oregon and, where required, from other authorized accrediting agencies.

2.6 “Fiscal Year” means the period consisting of a full year, beginning July 1 and ending June 30, unless otherwise provided in this Agreement.

2.7 “Mt. Hood Cable Regulatory Commission” or “MHCRC” means the cable regulatory commission created through an Intergovernmental Agreement to which the City is a party, its successors and assigns. The City has agreed to be bound by the decisions and actions taken by the Commission pursuant to powers, duties, and responsibilities delegated to the Commission under the Intergovernmental Agreement. Unless specifically stated otherwise herein, the Commission shall be the representative and agent of the City in dealing with the Contractor under the terms of this Agreement. In fulfilling the terms of this Agreement, Contractor is expected to rely upon, look to, communicate with, and comply with the decisions and orders of the Commission, its agents, and employees on all Access matters with respect to which the City has lawfully delegated the exercise of the City’s authority under this Agreement.

2.8 “Non-Commercial” means use of the cable system by any public, tax-exempt organization or by any other user for a purpose that is not intended to generate income for the user which may be subject to federal, state, or local income taxes.

2.9 “Programming” means the process of causing television programs or other patterns of Signals to be transmitted on a cable system, and includes all programs or patterns of Signals transmitted or capable of being transmitted, on the Cable System.

2.10 “Section” means a provision of this Agreement, unless specified as part of another document.

2.11 “Signal” means any analog or digital electrical or light impulses carried on a cable system, which includes any combination of audio, video, voice or data.

2.12 “Residential Subscriber” means any Person who is receiving any Cable Services delivered to single or multiple dwelling units provided by any company franchised or contracted by the City to use the public rights of way to provide Cable Services.

3. Objectives. Contractor shall use best efforts to achieve the following objectives:

3.1 Provide training, education and outreach to residents and organizations from all areas of the City to enable them to use communication tools to effectively convey their messages;

3.2 Cablecast PEG Access Programming over cable channels and interconnect facilities made available to the Contractor for its use;

3.3 Allocate resources provided under this Agreement in a way which addresses Portland-wide needs and interests, and fosters a diversity of Programming reflective of Portland’s communities;

3.4 Maintain policies and procedures to ensure the public will have fair and equitable access to and use of the Public Access facilities and services;

3.5 Produce Programming in partnership with City bureaus and other governmental and quasi-governmental units, in order to promote civic dialogue on issues of importance to community members and their governments;

3.6 Produce Programming in partnership with Educational Institutions in order to support local educational goals;

3.7 Pursue new opportunities for Programming distribution on alternative platforms including, but not limited to Internet-based distribution;

3.8 Deploy digital-based technologies in order to simplify and enhance Program content production;

3.9 Work with other organizations to build community media capacity throughout the City; and,

3.10 Maintain generally accepted accounting, budgeting, and business systems and practices for the operation, protection, investment, oversight and management of the resources provided by the City to the Contractor.

4. Scope of Services. Contractor shall:

4.1 Develop and maintain a detailed manual setting forth policies and procedures which include non-discriminatory practices for the public to use and have access to resources provided under this Agreement which are designated for Public Access purposes;

4.2 Manage the transmission of Programming on cable channels identified as Public Access channels in the Franchises. The Contractor shall schedule Programming on such channels in accordance with the policies and procedures required under Section 4.1, except that, in accordance with applicable law, Contractor may refuse to transmit programming which the Contractor has determined would infringe on a copyright or which has been deemed unprotected speech by a court of competent jurisdiction. Contractor shall also serve as the point of origination for Public Access channels under section 7.3(A) of the KBL-Portland Cablesystems, L.P. franchise;

4.3 Establish and maintain an accessible and available Public Access site for production and training. In addition, the Contractor shall make available a vehicle, for use by the public on a Citywide basis, which will allow the transport of equipment for remote video production;

4.4 Produce Programming in cooperation with or as directed by the offices of the Mayor, City Commissioners, City bureaus and other agencies of local government. Programming produced by the Contractor for government agencies shall be of a quality generally consistent with industrial video production in the community, subject to the inherent limitations of the facilities reasonably available to Contractor;

4.5 Manage the transmission of Programming on cable channels identified as Government Access channels in the franchises. Contractor shall have scheduling control over Government Access channels. Contractor shall also serve as the point of origination for Government Access channels under section 7.3(A) of the KBL Cablesystems, L.P., franchise;

4.6 Cablecast gavel-to-gavel City Council meetings live on a Government Access channel. Production of the cablecast meetings shall be coordinated with the City Mayor’s office and the Council Clerk. Contractor shall produce the cablecast of such meetings in a way which is generally consistent with industrial video production, subject to the limitations and capabilities of the City Council Chambers production facilities. Contractor shall manage the video production facilities and maintain the equipment at the City Hall. If removal of equipment is necessary, Contractor shall ensure that the facility is not damaged or shall ensure that the facility is restored to its original condition immediately prior to the removal. The parties do not expect the Contractor to replace the video production equipment at the City Hall from resources provided under this Agreement;

4.7 Produce Programming in cooperation with Educational Institutions in a way which supports local educational goals and does not duplicate Programming efforts of other Educational Access providers for the City;

4.8 Provide Programming production and media literacy instruction on the effective use of Programming to City residents and community organizations which serve the City, taking into account the public’s expertise, needs and schedule requirements;

4.9 Conduct outreach to the public and segments of the public in a way which encourages a diversity of Programming to meet Community Needs;

4.10 Produce community-based, original Programming dealing with issues identified through Contractor’s assessment of Community Needs. In fulfilling the obligations under this Agreement, Contractor may acquire and transmit non-commercial Programming from outside sources, if such Programming does not detract materially from the production and transmission of community-based, original Programming and qualifies as addressing an issue identified in Contractor's assessment of Community Needs;

4.11 Manage the transmission of Programming from live origination sites provided under the Franchises;

4.12 Manage the use of Access channel interconnections provided under the Franchises;

4.13 Provide technical expertise to the City and the MHCRC to assist with the oversight of Access and institutional network requirements as provided under the franchises;

4.14 Maintain its tax-exempt organization status under the Internal Revenue Code. Contractor shall not engage in any activities inconsistent with its tax-exempt status. Contractor may only transmit Non-commercial Programming over the Access channels designated to Contractor under this Agreement.

4.15 Develop and maintain any necessary operating agreements with franchisees Broadband resulting from Contractor's status as a designated Access provider for the City, consistent with the requirements of the Franchises.

4.16 The provision and performance of Contractor's services under Section 4 shall be subject to the limitations inherent in Contractor's annual budgets under this Agreement.

5. Community Needs Assessment and Strategic Plan.

5.1 At least every two (2) years during this Agreement, Contractor shall conduct a Community Needs Assessment. Contractor shall conduct its first Assessment under this contract by Dec. 31, 2002. The purpose of the Assessment is to provide a strategic way to evaluate the Contractor’s ability to assist the community in addressing critical issues. The Community Needs Assessment shall employ a valid and deliberate assessment process, and shall be designed in consultation with the City. The Contractor may use research and surveys conducted by other organizations as supplemental information to Contractor’s Assessment.

5.2 Contractor shall annually submit to the City a strategic plan, including, at a minimum, the results of Contractor's Community Needs Assessment and Contractor's plans for addressing those results and for meeting the objectives of this Agreement. Contractor shall consider, in implementation of its strategic plan, digital convergence, use of new technologies and community media partnerships for Programming content development and distribution. Contractor shall submit the plan in conjunction with its annual budget under Section 7.

6. Reports.

6.1 The Contractor shall provide such information to the City and the MHCRC as either deems reasonably appropriate regarding the Contractor's activities and use of funds under this Agreement.

6.2 Contractor shall provide the MHCRC with a copy of the policies and procedures, together with any subsequent amendments, under Section 4.1.

6.3 Within 45 days after the close of each Fiscal Year 6-month period, the Contractor shall submit an activity report to the MHCRC in a format subject to approval by the MHCRC. Such approval shall not be unreasonably withheld. Six-month activity reports shall contain at least the following information, unless otherwise approved by the MHCRC:

(A) Information responsive to Contractor’s Community Needs Assessment and strategic plan, under Section 5, including, but not limited to, outreach conducted, training provided, programs produced by the Contractor and programs acquired. The City shall not use this information in any way to control the specific viewpoint or content of any program.

(B) Training:

(1) Topics and number of training workshops offered;

(2) Numbers of persons attending;

(3) Number of persons certified; and,

(4) Number of hours the facilities and equipment are used by the public based on the hours available for public use.

(1) Listing of agencies served;

(2) Hours of City Council coverage; and

(3) Number and hours of new programming produced by the Contractor.

(D) For each channel dedicated for Public Access Programming, the percentage of time, averaged over the quarter, that the following types of Programming were cablecast on the channel:

(1) Produced through Contractor’s facilities, both in its original cablecast and any repeated playback;

(2) Acquired from local sources, both in its original cablecast and any repeated playback;

(3) Acquired from non-local sources; and

(4) Generated by a bulletin board, event listings, program listings or other types of listings.

(E) For each channel dedicated for Government Access Programming, the percentage of time, averaged over the quarter, that the following types of Programming were cablecast on the channel:

(1) Produced by the Contractor, both in its original cablecast and any repeated playback;

(2) Acquired from government entities, both in its original cablecast and any repeated playback;

(3) Acquired and sponsored by Contractor from local and non-local sources; and

(4) Generated by a bulletin board, event listings, program listings or other types of listings.

(F) Total hours the vehicle for remote video production, under Section 4.3, is checked out for use.

(G) List of live origination sites and Programming activity from such sites, under Section 4.11, other than Contractor’s facility.

(H) Any Signal quality issues and steps necessary to address the issues.

6.4 Within 45 days after the close of each Fiscal Year quarter, the Contractor shall submit a financial report to the MHCRC, based on the Fiscal Year budget. Unless the Contractor and the MHCRC agree to a different report format or different report parameters, the quarterly financial report shall contain at least the following information:

(A) Revenues; and Capital and operating expenditures:

(1) Sources and amount of revenue;

(2) Capital expenditures (amount and percent of total), by budgetary line item;

(3) Operating expenditures (amount and percent of total), by budgetary line item and by programmatic area;

(4) Accounting of funds received under Agreement No. 25770 approved by Ordinance No. 162467 between the Contractor and the City dated October 26, 1989, (the “Settlement Agreement”), reflecting the following information:

(a) Name(s) of fund investment manager(s) during the reporting period;

(b) Fund balance as of last report;

(d) Fund disbursements since last report;

(e) Fund balance as of date of report;

(f) Net change in fund balance since last report.

6.5 Within 90 days after the close of each Fiscal Year, the Contractor shall submit financial statements prepared in accordance with generally accepted accounting principles to the MHCRC. The financial statements shall be reviewed or audited by an independent Certified Public Accountant.

7. Annual Budget.

7.1 Contractor shall annually submit to the MHCRC:

(A) By January 1, a proposed budget for the succeeding Fiscal Year for MHCRC review; and

(B) By May 1, a budget adopted by Contractor’s Board of Directors.

7.2 The budget should include, at a minimum:

(A) Actual revenues and expenditures, by line item, for the past three Fiscal Years;

(B) The adopted budget, by line item, for the current Fiscal Year;

(D) Projected Capital revenues and expenditures, by line item and line item detail; and,

(E) A narrative identifying how resources provided under Section 9 will be used to support the Agreement Objectives and Scope of Services.

7.3 The budget shall be in a format acceptable to the MHCRC. If the MHCRC wishes to require any changes from a current budget format, it shall notify Contractor of the required changes no less than 45 days prior to the due date for budget submission.

7.4 Prior to December 1 of each year, the MHCRC shall provide to the Contractor projections of operational and Capital funding provided under Section 9 for the succeeding Fiscal Year.

7.5 Contractor shall submit to the MHCRC any budget amendments approved by its Board of Directors.

8. Term. The term of this Agreement is from July 1, 2002, through June 30, 2007.

9. Funding and Method of Payment.

9.1 (A) Subject to the terms and conditions of this Agreement, the City shall pay to the Contractor for work performed under this Agreement operational funding at the following funding levels. The funding base for this Agreement shall be $767,492. The City shall annually increase the funding base by an amount equal to the annual growth rate in the CPIW or the NRS, whichever is greater.

(B) For purposes of Section 9, “CPIW” means the ratio of the average Consumer Price Index for Portland urban wage earners for January through June of the year immediately proceeding the Fiscal Year being calculated, (e.g., January through June 2002 for Fiscal Year 2003-2004), to the average Consumer Price Index for Portland urban wage earners for January through June of two years preceding the Fiscal Year being calculated, (e.g. January through June 2001 for Fiscal Year 2003-2004) minus one (1). As an example, the CPI formula for Fiscal Year 2003-2004 would be (CPIW 2002 ) CPIW 2001) -1.

(C) For purposes of Section 9, “NRS” means the ratio of the number of Residential Subscribers within the City for December of the year immediately proceeding the Fiscal Year being calculated, (e.g., December 1998 for Fiscal Year 1999-2000), to the number of Residential Subscribers within the City for December of two years preceding the Fiscal Year being calculated, (e.g. December 1997 for Fiscal Year 1999-2000) minus one (1). As an example, the NRS formula for Fiscal Year 1999-2000 would be (NRS 1998 ) NRS 1997) -1.

(D) In the case of extraordinary circumstances causing severe financial constraints on the City resulting in the curtailment of City bureau budgets, the City may reduce the funding base by an amount not to exceed the average percentage reduction in other City general fund discretionary budgets.

(E) The City shall consider additional special appropriations of funds as requested the Contractor from time to time.

9.2 (A) Subject to the terms and conditions of this Agreement, the MHCRC shall pay to the Contractor a portion of the Access Corporation Capital Costs funds received by the MHCRC, on behalf of the City, derived from the franchises. The total amount of Capital fund payments under Section 9.2 shall be based on the MHCRC’s projected revenues for Access Corporation Capital funds for the succeeding Fiscal Year and the Contractor’s Capital budget, under Section 7.2 (D). The annual payment amount for Capital funds under Section 9.2 (A) is subject to acceptance by the MHCRC of the Contractor’s Capital budget and final appropriation in the MHCRC’s adopted annual budget.

(B) Contractor agrees to expend Capital funds provided under Section 9.2(A) only for Capital expenses in accordance with the limitations set forth in the franchises.

(C) The MHCRC may, notwithstanding the provisions of Sections 9.1(A), accelerate any payments under Section 9.2(A) if justified by the Contractor.

9.3 (A) The City shall make payments for annual funding under Sections 9.1 and 9.2 on a quarterly basis within 45 days of the end of each Fiscal Year quarter.

(B) The City and the Contractor have entered into this Agreement under the federal and state laws in effect on the effective date of this Agreement, which allow the City to require cable operators to obtain a franchise for use of the City streets, and to pay franchise fees for such use as well as make PEG capital contributions. The City reserves the right to request modifications to, or to seek early termination of, this Agreement to account for any changes in federal or state law which impair its ability comply with the funding obligations set out in Sections 9.1 and 9.2. The Contractor reserves the right to request modifications to, or to seek early termination of, this Agreement to account for any changes in federal or state law which impair the Contractor's ability to comply with the service obligations set out in Sections 4.2 through 4.13.

10. Regulatory Provisions.

10.1 Prior to June 1 of each year, the MHCRC may disapprove a budget submitted by the Contractor for the succeeding Fiscal Year upon a determination that the budget submitted by Contractor reflects one or more of the following conditions:

(A) That the budget fails to support the Objectives under Section 3 or the Scope of Services under Section 4;

(B) That funds or assets the Contractor has received or is to receive from the City, or from or on account of a City Cable Services franchise, will be spent or applied for purposes unrelated to the Agreement’s Scope of Services under Section 4;

(C) That the Contractor’s Capital expenses under Section 7.2(D) do not adhere to the limitations set forth in the Franchises for Capital funds;

(D) That funds or assets the Contractor has received or is to receive from the City, or from or on account of a City Cable Services franchise, will be endangered by waste, substantial damage, destruction, foreclosure or other similar jeopardy without sufficient, reasonable explanation or justification therefor;

(E) That revenue reasonably expected to be received by the Contractor will be insufficient to meet debt obligations incurred or to be incurred by Contractor in light of the Contractor's planned expenditures; or,

(F) That the Contractor's planned expenditures are otherwise fiscally unreasonable in light of generally accepted business practices for the operation, protection, investment, oversight and management of the Contractor's facilities.

10.2 If at any time during the period of this Agreement the MHCRC determines that one or more of the conditions listed in Subsections 10.1 (A-F) exists, then notice of such determination together with recommended action shall be given to the Contractor and City Council.

10.3 Upon disapproval of the Contractor's budget as provided in Section 10.1, or on a determination by resolution of the City Council confirming a determination of the MHCRC under Section 10.2, the City Council may impose reasonable terms on the expenditure of the funds provided to Contractor in Section 9 hereof, to protect against such fiscal deficiencies pending correction thereof by the Contractor.

10.4 The foregoing notwithstanding, this Agreement may be terminated upon a determination by resolution of the City Council that:

(A) Funds or assets the Contractor has acquired from the City or from or on account of a City Cable Services franchise are in immediate danger of waste;

(B) After reasonable opportunity to do so, the Contractor has not complied with reasonable terms imposed by the City Council on the expenditure of funds by the Contractor as provided in Section 10.3;

(C) After reasonable opportunity to do so, the Contractor has not remedied the deficiencies giving rise to the City Council determinations under Section 10.2 or Section 10.3; or,

(D) After reasonable notice and opportunity to do so, the Contractor has failed to remedy any violation by Contractor of a material provision of this Agreement.

10.5 In the event of termination, or in the event the City does not extend this Agreement beyond the date set forth in Section 8, and the City Council so directs by resolution, the Contractor shall pay to the City any unexpended funds received by the Contractor at any time from the City, or from or on account of a City Cable Services franchise, and shall transfer to the City title to all real and personal property owned by the Contractor and all leasehold or other rights held by Contractor in real and personal property not owned by Contractor, after provision is made for creditors of the Contractor, provided that the ownership or rights were obtained by the Contractor from the City or from or on account of a City Cable Services franchise or with funds received at any time from the City or from or on account of a City Cable Services franchise.

10.6 Nothing herein shall entitle the City to recover funds or property the Contractor acquired from sources other than the City, or from or on account of a City Cable Services franchise; nor shall the City be entitled to any funds or property that the recovery of which would prevent full payment of amounts owing to creditors of the Contractor.

10.7 The City shall not consider the content of Access Programming, including the Contractor’s or a producer's choice of subject matter and the point of view expressed, in making any decision regarding the allocation or appropriation of funds for the Contractor, the adequacy of the Contractor's budget, or the termination of this Agreement.

11. City Cable Franchisee Subscriber Lists. The Contractor is authorized to have access to and to use the subscriber lists of City Cable Services franchisees for its own mailing purposes only, subject to the limitations contained in applicable City franchises, ordinances, any agreements related thereto, and any MHCRC Orders thereunder, and further subject to the provisions of applicable federal law.

12. Assignment. The Contractor shall not assign or transfer any interest in this Agreement without prior written consent of the City, provided, however, that nothing herein shall prevent the Contractor from subcontracting the performance of any provision or obligation required by this Agreement, so long as the Contractor remains primarily responsible to the City for the performance of such provision or obligation.

13. General Provisions.

14.1 The Contractor shall make payment promptly as due to persons supplying services for work provided under this Agreement.

14.2 The Contractor shall not cause any lien or claim to be filed or prosecuted against the City on account of labor furnished or materials or equipment installed.

14.3 All Charter, Code and Statutory provisions applicable to contracts of the City are hereby incorporated and the Contractor shall comply therewith.

14.4 (A) The Contractor shall obtain workers' compensation insurance coverage for all of its workers, employees and subcontractors either as a carrier-insured employer or a self-insured employer, as provided by Chapter 656 of the Oregon Revised Statutes, before this Agreement is executed. The Contractor shall maintain on file with the City a certificate of such insurance, or a copy thereof. The Contractor shall further maintain workers' compensation insurance coverage for the duration of this Agreement.

(B) In the event the Contractor's workers' compensation insurance coverage is due to expire during the term of this Agreement, the Contractor agrees to timely renew its insurance, either as a carrier-insured employer or a self-insured employer as provided by Chapter 656 of the Oregon Revised Statutes, before its expiration, and the Contractor agrees to provide the City with further certification of workers' compensation insurance as renewals of said insurance occur.

14.5 The City and the MHCRC shall have access at all reasonable times, including during Contractor’s normal business hours, to all books and records of the Contractor.

14.6 Contractor shall abide by all Federal and Oregon state laws applicable to non-profit organizations.

14.7 The City or the MHCRC shall not be liable for any obligations incurred by the Contractor. The Contractor shall not represent to any person that the City or the MHCRC is liable for Contractor's obligations.

14.8 (A) The City Project Manager shall be the MHCRC through the Director of the OCC/FM, or the head of any successor bureau or agency to which oversight of City Cable Services franchises may be assigned during the term of this Agreement.

(B) The Project Manager is authorized to disseminate and to receive communications and notices regarding the Contractor's performance of this Agreement and the City's oversight thereof, to require information to be submitted under this Agreement, and to implement City directives with respect thereto.

14. Notice. All notices provided under this Agreement shall be sufficient if deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, and addressed as follows:

15.1 If to the Contractor:

Executive Director

Portland Cable Access

2766 N.E. Martin Luther King, Jr. Blvd.

Portland, OR 97212

15.2 If to the City:

Director

Office of Cable Communications and Franchise Management

Mt. Hood Cable Regulatory Commission

1120 SW Fifth Ave., Rm 1305

Portland, OR 97204

Notice of any change of address may be given by notice as provided in this Section.

15. Indemnity.

16.1 The Contractor shall hold harmless, defend, and indemnify the City/MHCRC and the City's/MHCRC’s officers, agents, and employees against all claims, demands, actions, and suits, including, without limitation, copyright infringement, defamation, and other claims, (including all court and appeal costs and attorney fees and costs) brought against any of them arising from the Contractor's work under this Agreement, but not if arising out of or by reason of any negligence or willful misconduct by the City/MHCRC, its officers, agents or employees. Except where the Contractor is primarily at fault under common law principles, the Contractor's obligation under this Section shall not apply to claims, demands, actions or suits arising from the City's Government Access cablecasting activities under this Agreement.

16.2 (A) The Contractor shall maintain general liability insurance that protects the Contractor and the City/MHCRC and its officers, agents, and employees from any and all claims, demands, actions, and suits for damage to property or personal injury, including death, arising from the Contractor's work under this Agreement. The insurance shall provide coverage for not less that the maximum limits of liability imposed on municipalities of the State of Oregon in the Oregon Tort Claims Act during the term of the Agreement. The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the City/MHCRC and its officers, agents, and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer's liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured. The coverage must apply as to claims between insureds on the policy. The insurance shall provide that the insurance shall not terminate or be canceled without thirty (30) days written notice first being given to the City Auditor. If the insurance is canceled or terminated prior to completion of the Agreement, the Contractor shall provide a new policy with the same terms. The Contractor agrees to maintain continuous, uninterrupted coverage for the duration of the Agreement. The insurance shall include coverage for any damages or injuries arising out of the use of automobiles or other motor vehicles by the Contractor. The failure to maintain liability insurance shall be cause for termination of this Agreement.

(B) The Contractor shall maintain on file with the City Auditor a certificate of insurance certifying the coverage required under Section 16.2(A). The adequacy of the insurance shall be subject to the approval of the City Attorney.

CITY: CONTRACTOR:

By: By:

(Title)

APPROVED AS TO FORM:

By:

City Attorney

(Title)