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Home My WebLink AboutVIII-17 Approved Revised Hastings Access Corporation Operating Agreement 1 8151437v3 City Council Memorandum To: Mayor Fasbender & City Councilmembers From: Ashley Bertrand, Assistant Finance Manager Date: December 19, 2022 Item: Approve Revised Hastings Access Corporation Operating Agreement Council Action Requested: Council is asked to approve the revised Hastings Access Corporation Operating Agreement. Background Information: The current operating agreement is outdated. The previous agreement stated the City entered into a Lease Agreement with the school district. This Lease Agreement ended in 1990. Hastings Access Corporation now has the Lease Agreement with the School District. Also, the Operating Agreement that both HAC and the City had saved was a ‘marked up’ agreement, that was hard to read, and follow. The Operating Agreement is now updated and accurately reflects the relationship between Hastings Access Corporation, the School District, and the City. Financial Impact: Not applicable Advisory Commission Discussion: N/A Council Committee Discussion: N/A Attachments: Hastings Access Corporation Operating Agreement VIII-17 2 8151437v3 OPERATING AGREEMENT This Operating Agreement (“Agreement”) is made and entered into this day of , 2022 by and between the City of Hastings, Minnesota, a municipal corporation (“City”) and the Hastings Cable Community Access Corporation, Inc., a Minnesota non-profit corporation (“HAC”) (each individually a “Party” and collectively referred to as the “Parties”) Recitals: A. The City incorporated HAC to produce, promote and manage the production of community cable television programming to be cablecast on the cable communications system established pursuant to the City’s cable franchise ordinance held by Comcast (“Comcast Franchise”). B. The City desires HAC to produce, promote and manage the production of community cable television programming, subject to the City’s direction and control. C. HAC is willing and able to fulfill the City’s obligations to produce, promote and manage the production of community cable television programming that serves the City through informative and entertaining local productions. Agreements: A. In consideration of the foregoing recitals and of the mutual agreements set forth herein, the Parties agree as follows: 1. Operation and Management: HAC agrees to provide, on behalf of the City and subject to the City’s direction and control, services to the residents of the City, including, without limitation, the following: a. To produce local programming of community events and activities and to originate programs that will promote the City; b. To serve as a resource center for information, materials, and equipment relating to the use of video as a communication medium; c. To serve as a receiving, holding, and disbursing entity for monies intended to promote non-commercial citizen use of the video medium; and d. To cooperate, within the constraints of available resources and existing policy, with other access organizations in the community and the region toward the improvement in quantity and quality of all access programming. VIII-17 3 8151437v3 2. Staffing: HAC agrees to retain and maintain such qualified personnel, both paid and volunteer, as are necessary to perform the services HAC is obligated to provide under this Agreement. 3. Funding for HAC: Under the Comcast Franchise, Comcast has agreed to remit to the City a monthly pass-through payment of $1.25 per cable subscriber, per month to support public, educational and government programming capital expenses (“ PEG Fee”) as well as a fee equal to five percent (5%) of Comcast’ gross cable revenues (“Franchise Fee”). The City has budgeted the PEG Fee and ninety-five percent (95%) of the Franchise Fee to fund HAC. The City shall distribute funds to HAC on a quarterly basis. 4. Records and Reports: During the term of this Agreement and for as long as the City may request hereafter, HAC shall keep accurate and complete records of all of its financial transactions. HAC shall provide to the City, within ninety (90) days of the end of each year, a complete written financial report of its operations during the year just ended. HAC shall maintain its books and records in a manner consistent with generally accepted accounting principles and shall, if required, file complete and accurate federal and state tax returns. Pursuant to the provisions of Minnesota Statutes, Chapter 6, the books records, documents, and accounting procedures and practices of HAC relevant to this Agreement shall be subject to examination by the City and either the legislative or state auditor if applicable and as appropriate. 5. Objective and Operations: Within ninety (90) days of HAC’s execution of this Agreement, HAC shall provide to the City a statement of its objectives and plan of operation for fulfilling its obligations under this Agreement. Within ninety (90) days of the end of the term of this Agreement (and of each renewal term), HAC shall provide the City with a full report of its operational activities and capital purchases for the term just ended. 6. Insurance: HAC shall obtain and maintain workers’ compensation insurance for its employees as required by Minnesota law. HAC shall, at the City’s request, provide the City with evidence of the insurance coverage required under this Section 6. HAC shall obtain and maintain general liability and property insurance for its operations as well as equipment utilized in its operation. The City shall be named as an additional insured on said insurance coverage. 7. Term: The term of the Agreement shall commence as of the date first written above and end when one Party invokes the termination clause in Section 10 of this Agreement. 8. Resolution of Disputes: All claims or disputes arising out of, or relating to, this Agreement shall be referred to the City Administrator and the Board Chair of HAC. In the event the City Administrator and HAC Board Chair cannot resolve such claims or disputes, the matter shall be submitted to an impartial three-member panel consisting of one member designated by the City Administrator, one member designated by the HAC Board Chair, and the third member selected by the first two members. VIII-17 4 8151437v3 9. Data Practices: The Parties must comply with the Minnesota Government Data Practices Act (Minnesota Statutes, Chapter 13), as it applies to any data received, collected, stored, or disseminated by a Party to this Agreement or the work performed under it. The Act provides for civil liability for failure to comply with its requirements. 10. Termination: Either Party may terminate this Agreement upon sixty (60) days written notice to the other. Upon termination of this Agreement for any reason, HAC shall return to the City all funds advanced to it by the City which had not been committed by HAC. Final determination of such uncommitted amounts shall be made by the City Auditor and HAC. Also, upon termination of this Agreement for any reason, any assets previously owned by HAC will become property of the City’s. 11. This Agreement does not make either Party the employee, agent or legal representative of the other Party for any purpose whatsoever. Neither Party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other Party except as expressly set forth herein. 12. Notices may be sent via email and shall be effective on the second (2nd) business day after receipt. Email should be sent to City Administrator and HAC Board Chair. 13. If any of the terms of this Agreement are in conflict with any rule of law or statutory provisions or are otherwise unenforceable under applicable laws or regulations, such terms will be deemed stricken from this Agreement, but such invalidity or unenforceability will not invalidate any of the other terms of this Agreement and this Agreement will continue in force, unless the invalid or unenforceable provisions compromise an integral part of, or are otherwise inseparable from, the remainder of this Agreement. 14. This Agreement will be governed by and interpreted and construed in accordance with the laws of the State of Minnesota. 15. The Parties hereto acknowledge and agree that they have participated in the drafting of this Agreement and that in the event of dispute regarding the meaning or intent of its provisions, no presumption shall arise in favor of or against any Party hereto. 16. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties hereto. No Party may assign its rights or delegate its duties hereunder without the express written consent of the opposite Party hereto. 17. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement. 18. Amendments: No amendments to this Agreement shall be valid or binding unless made in writing and signed by the Parties hereto. VIII-17 5 8151437v3 The Parties caused this Agreement to be executed by the undersigned duly authorized persons. CITY OF HASTINGS; HASTINGS CABLE COMMUNITY ACCESS CORPORATION; A Minnesota Municipal Corporation A Minnesota Corporation By: By: Its Mayor Its Board Chair By: Its City Administrator VIII-17