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DAILY REPORTS and Documents | iPNB Berkeley meeting info The Democracy Now!/Pacifica agreement 6-13-02 |
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Presented at the iPNB meeting in Berkeley June 21 - 23, 2002
iPNB chair report on Democracy Now!
[Posted on the message board at: http://goodlight.net/wbai]
DISTRIBUTE WIDELY, INC.
AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of the First day of June 2002, by and between Pacifica Foundation, a California nonprofit corporation, with principal offices at 2390 Champlain St., Washington, D.C. ("Pacifica"), and Democracy Now! Productions, Inc., a New York nonprofit corporation, with principal offices at 87 Lafayette St., New York, NY 100 13 ("Producer").
Background
Pacifica has previously produced the radio program entitled Democracy Now! by employing Amy Goodman, Kris Abrams, and other individuals. Upon the effective date of this agreement those employment agreements and benefit packages will be terminated (subject to Pacifica's agreement to pay back pay). Producer will be solely responsible for the content and production of the program. Producer will employ such staff as it requires to fulfill its obligations under this agreement. Producer will provide its own production facilities. Producer will provide the program to Pacifica on an independent producer basis. This agreement shall not be construed to create a partnership or joint venture between Pacifica and Producer.
Terms
1. The Program. Producer will produce, and Pacifica will distribute throughout the United States (the "Territory") for the uses licensed below, the radio program entitled "Democracy Now!" (the "Program"), pursuant to the terms and provisions of this Agreement. The Program will feature Amy Goodman (the "Host") and occasional guest hosts in a daily (Monday through Friday) news and public affairs program with content similar to that of the past 6 years. The programs will consist primarily of new material with some previously broadcast material at Producer's discretion. 2. Term of Agreement. This Agreement, and the licenses granted hereunder, will commence on the date of this Agreement and will terminate on September 30, 2007, unless earlier terminated as provided herein (the "Term"). 3. Payment. Producer and Pacifica acknowledge that Pacifica is in financial difficulty and is currently unable to pay for the full cost of producing the Program. Accordingly, Producer agrees for the current fiscal year to accept 35% less than its operating budget from Pacifica. In consideration for all of the rights granted herein and for all other undertakings by Producer, Pacifica will, unless this Agreement shall have been earlier terminated as herein provided pay to Producer $188,335 for the remainder of the current fiscal year. This figure is based on an annual rate of $400,000 pro-rated for the period June I through September 30, 2002, plus unreimbursed production expenses for the period January 7 to May 31, 2002. Payable according to the following schedule: On or about June 15, 2002 $ 50,000 For the year beginning October 1, 2002, Pacifica will increase the payment by 10% for a yearly total of $440,000. For the years following, Pacifica agrees to annual increases in the program fee of no less than 4% and no more than 10%. The annual increases will be negotiated in good faith not less than three months prior to the beginning of each fiscal year. Payments shall be made on the following schedule: on or before each succeeding September 15 (for the contract year beginning the immediately following October 1), December 15, March 15, and June 15 of each contract year, one quarter of the annual amount for that contract year. Or, instead of quarterly, at Pacifica's election, Pacifica may pay the annual fee to Producer in 12 equal monthly payments 15 days in advance of the first day of each month. 4. Distribution. Pacifica will provide and assume the necessary costs of distributing each daily program live at a mutually agreeable time via both the left and right channels of the Pacifica KU Satellite to Pacifica radio stations (KPFA Berkeley, California; KPFK North Hollywood, California; KPFT Houston, Texas, WBAI New York, New York, and WPFW Washington, District of Columbia) and to its affiliated public, community, and college radio stations. In addition, Pacifica will rebroadcast the program on at least the left channel of the KU at mutually agreeable times. Such times of broadcasts may be changed at Pacifica's sole discretion in the case of breaking news events, emergencies, or other similar circumstances, but in no event will such broadcast be earlier than normally scheduled. Producer will deliver the program to Pacifica at Pacifica's expense using technically reasonable means, which may include, as at present, an ISDN line. In addition to the fees specified in Paragraph 3, Pacifica will pay the costs of Producer's ISDN and telephone service, not to exceed $4,000 per month. 5. Research Materials/Arbitrons. Pacifica will provide Producer with Arbitron ratings, Audiographics, market and audience research reports 'and other information and marketplace analysis for each Pacifica station as soon as it is available to Pacifica, provided that Pacifica shall not be required to provide any information that it is legally prohibited from disclosing. 6. Costs of Production. Except as herein provided, Producer will assume all costs of production of the Program. Producer will also at its sole expense (a) secure any necessary clearances for any rights that it is obligated to obtain, other than broadcast music performance rights, and (b) produce audio promos and other promotional materials as reasonably requested by Pacifica. 7. Rights Granted To Pacifica. Producer grants to Pacifica the nontransferable right to distribute each daily segment of the Program for one release (meaning unlimited use within the twenty-four (24-) hour period immediately following the satellite uplink of each daily segment) to Pacific radio stations and affiliates in the Territory for the Term, for purposes of terrestrial radio broadcast and streaming Internet transmission only via Pacifica and its affiliate radio stations. With Producer's consent on a case-by-case basis, which consent will not be unreasonably withheld or delayed, Pacifica radio stations and affiliates may rebroadcast Program segments from time to time during the Term, provided that no such rebroadcast will be made in place of the then-current Program release. Included in such license are rights of transmission over radio broadcast stations, radio information services for the print handicapped, and translator, booster, and similar systems (but such grant does not include closed circuit and subcarrier broadcasts and services). Included also in this grant is any right as a copyright holder to compensation awarded pursuant to 17 U.S.C. Section 119. Producer also grants to Pacifica certain archival rights as further described in Paragraph 17, below. 8. Distribution rights reserved to Producer. The Producer reserves the exclusive rights to distribute and broadcast the program via radio stations other than Pacifica and its affiliate radio stations and in all other formats, including television. Producer agrees to consider, on a case by case basis, in good faith, any specific proposals by Pacifica in the areas of satellite digital audio radio service, direct broadcast satellite, international distribution, other media, or other proposals to work together in other mutually beneficial ways, during the Term. All other rights in and to the Program, the service mark DEMOCRACY NOW!, and the name, voice, photograph, graphic image, likeness, and biography of the Host not expressly granted by this Agreement are expressly reserved by Producer. 9. Intellectual Property Fights. Pacifica acknowledges that as between the parties the service mark and trademark DEMOCRACY NOW! and the copyright in the sound recordings and transcriptions of the Program are the sole and exclusive intellectual property of Producer. Pacifica expressly waives all claims in connection with the mark and the copyrights and will execute such documents as may be necessary to confirm the foregoing. Producer grants to Pacifica the right to use in connection with the distribution of the Program all service marks and logos relating to the Program, which are owned or controlled by Producer. Pacifica will protect Producer's rights in the service mark and the copyrights in the Program and by affixing service mark and copyright notices in accordance with Producer's instructions. Pacifica grants Producer the right to use its service marks and logos in association with the Program. Producer will protect Pacifica's rights in its service marks and its logos and will affix service mark notices in accordance with Pacifica's instructions. 10. Editorial control. Producer will have complete editorial independence and Pacifica will continue its previously exis6ng policy of running the program on all Pacifica stations, subject only to Pacifica's reservation of the tight to reject or pre-empt any programming that does not comply with FCC or other legal requirements. 11. Promotional and Other Uses. Producer also grants to Pacifica the right to use, and authorize others to use, excerpts of the Program, the name, voice, photograph, graphic image, likeness, and biography of the Host for purposes of promoting or otherwise giving favorable publicity to the Program or the Host, subject to prior approval of such uses, which will be deemed granted by Producer if not denied in writing within five business days of receipt of the request for approval. 12. Promotion by Pacifica. Pacifica will promote the Program prominently on Pacifica's Worldwide Web site and may promote it in such other manners and media, as it deems appropriate. Pacifica will actively promote carriage of the Program by eligible radio stations throughout the Territory. 13. Promotion by Producer. Producer agrees to provide mutually agreeable professional services of the Host, subject to her other professional obligations, to promote and market the Program and to engage in activities deemed mutually agreeable to Producer and Pacifica to help support the Program and/or the Pacifica Network. 14. Affiliates. Pacifica will distribute the Program to its existing affiliated public, community, and college radio stations throughout the Territory and to any such stations that are newly affiliated during the Term. Producer will make reasonable efforts to encourage and facilitate the affiliation of new radio stations with the Pacifica network. Pacifica will retain 100% of the carriage fees for the Program paid by its affiliates, provided that for any new affiliate that begins carrying the Program after the date hereof solely as a result of direct marketing activities by Producer, the percentage of carriage fees paid by such affiliate in the first year of such carriage will be apportioned 50% to Pacifica and 50% to Producer. Pacifica will at all times during the Term offer the Program to affiliates as a stand-alone program. Any bundling of "Democracy Now!" with other programs for distribution to affiliates shall require the express written consent of Producer and an appropriate division of carriage fees. 15. Archives, past programs, merchandise. Producer shall be the sole owner of the copyright in all sound recordings and transcriptions of programs recorded prior to and during the Term, and will handle all requests for copies of programs, transcriptions, and program merchandise. Nevertheless, in the case of audiocassette copies intended for personal use of for purposes of research, Producer grants to Pacifica the right to record and sell copies of any past program recorded prior to the date of this Agreement through its Pacifica Archives. Pacifica will furnish Producer on a schedule to mutually agreed with list of the names and addresses of purchasers of audiocassette copies. Producer will make reasonable efforts to regularly announce a toll-free or other telephone number in Program episodes where listeners can contact the Program and can order recordings, the cost of which telephone service will be shared equally by Producer and Pacifica, Producer will forward any orders it receives for such copies to the Pacifica Archives for fulfillment. Pacifica shall retain 100% of its gross receipts from the sale of such audiocassettes. Producer will retain all proceeds of all other exploitation of the Program. Pacifica will provide Producer with digital copies of all past programs in the Archive, on compact disc or in such other medium as the parties agree, on a schedule to be mutually agreed, not to exceed 18 months from the date of this Agreement. 16. Resolution of Prior Outstanding Issues. Pacifica will continue its payments of back pay to Producer staff on the present schedule, by making one extra payment to each staff member per pay period equal to the staff member's regular pay amount. 17. Fundraising. Producer will actively assist Pacifica stations and affiliates in on-air - fundraising drives to substantially the same extent and in a manner similar to the way in which. the Host and the Program production staff have assisted with fundraising over the past six years. Producer shall have the right to engage in fundraising on its own behalf to help meet its production expenses. For this purpose, to the extent permitted by law and the regulations of the Corporation for Public Broadcasting, Pacifica will furnish Producer with updated Pacifica donor lists twice each year, including detailed contact information, i.e., names, addresses, telephone numbers, and E-mail addresses, where available. 18. MusicUsage. PacificahasobtainedorwillobtainblanketmusiclicenseswithASCAP, BMI, SESAC, and The Harry Fox Agency (the "Licenses") for all Pacifica stations and will assume the costs of the Licenses for the Program and maintain the Licenses in full force and effect throughout the Term. The Licenses will cover published music when used substantially as it is being used in the Program currently. 19. Insurance. Throughout the Term, Pacifica will maintain all-risk (including liability) media claim insurance, naming Producer and Amy Goodman as additional insureds. When and if Pacifica fully funds the production of the Program, Producer agrees to obtain its own media claim insurance naming Pacifica as an additional insured. 20. Intentionally deleted. 21. ForceMajeure. Producerwilinotbeinanywayresponsibleforanyfailuretocomplywith any obligation under this Agreement where such failure was directly or indirectly caused by or arose from any circumstance beyond the control of Producer including, without limitation, accident or breakdown of any equipment or apparatus, force majeure, war, riot, rebellion, civil commotion, interference by strike, lockout, sit-in, picket, other industrial dispute or action, or action by Pacifica impeding or interfering with the broadcast of the Program. Pacifica will not be in any way responsible for any failure to comply with any obligation under this Agreement other than the obligation to make the payments set forth in Paragraph 3 and 4 hereof where such failure was directly or indirectly caused by or arose from any circumstance beyond the control of Pacifica including, without limitation, accident or breakdown of any equipment or apparatus, force majeure, war, riot, rebellion, civil commotion, interference by strike, lockout, sit-in, picket, or other industrial dispute or action. 22. Fair Employment Practices. During the performance of this Agreement, Producer will not discriminate against any employee or applicant for employment because of race, color, religion, age, sex, sexual orientation, national origin, or physical or mental handicap. Producer will take affirmative action to ensure that minority and women applicants are sought out and considered for employment, and that employees are treated during employment without regard to their race, color, religion, age, sex, sexual orientation, national origin, or physical or mental handicap. 23. Notices. All notices that must be sent to Pacifica under this Agreement will be sent to:
The Pacifica Foundation, Inc.
With a copy to:
Garvey, Schubert & Barer
Notices that must be sent to Producer under this Agreement will be sent to:
Democracy Now! Productions, Inc.
With a copy to:
Melford Law Office
Notice will be deemed effective upon actual receipt which may in the case of documents be by receipt of facsimile transmission thereof. 24. Representations and Warranties of Producer. Producer represents, warrants and agrees that: (a) Regulatory Compliance. The Program will comply in all respects with the Communications Act of 1934 as amended, all applicable rules and regulations of the Federal Communications Commission, and all other state and federal laws and regulations pertaining to the production, broadcast or other distribution authorized under this Agreement and that broadcasting or other such distribution of the Program does not create for Pacifica a credible risk of civil or criminal liability. (b) Ownership by Producer of Rights. Producer owns exclusively all the rights being licensed to Pacifica in this Agreement and it has full right, power, and authority to enter into perform this Agreement and to grant Pacifica the rights contained in this Agreement; (c) Other Rights. Producer will have obtained all necessary rights, releases, permissions, clearances, and licenses to use compositions, materials and elements embodied in the Program and from persons performing services in connection with the Program; (d) No Infringement. Program when used as licensed herein will not violate or infringe upon the copyright, trademark, privacy, right of publicity, or any moral, property, contract, creative or other right of any person, firm, corporation or any other third party; and will not be defamatory of any third party; (e) No Interference. Producer has no contract or agreement with any other person, firm, or corporation which will in any way interfere with any rights granted under this Agreement, nor will Producer enter into one; and (f) No Restrictions. There are and will be no encumbrances or restrictions on Program or its use, which are inconsistent with any license hereby, granted. 25. Representations and Warranties of Pacifica. Pacifica represents, warrants and agrees that: (a) Pacifica has the right and the power to enter into this Agreement, (b) Pacifica will fully and faithfully perform its obligations under this Agreement; and (c) None of Pacifica's directors, officers, agents, representatives, or employees will at any time during the Term seek to impede, block or sabotage the distribution or broadcast of the Program. (d) Throughout the Term, Pacifica will broadcast the Program via the Pacifica radio stations and will distribute and make the Program available to all of its affiliates and to all other public, community, and college radio stations that wish to carry the Program. 26. Representations and Warranties of Persons Signing Agreement. The persons signing this Agreement on behalf of Producer and Pacifica represent and warrant that they are authorized to bind the party on whose behalf they are signing to the terms of this Agreement. 27. Indemnification. Producer and Pacifica will each indemnify and hold the other harmless from and against any and all claims, damages, liabilities, costs and expenses (including reasonable legal fees) arising out of any breach of any representations, warranties, or other provisions of this Agreement. 28. Termination for Failure To Perform. If either party fails to perform its obligations under this Agreement, the other party may terminate this Agreement, effective fifteen (I 5) days after the mailing of notice, unless the breaching party has cured the breach by the effective date of the termination. 29. Fulfillment of Prior Obligations. If this Agreement is terminated, each party will fulfill its obligations incurred under this Agreement up to the termination date. 30. Obligations After Termination. Unless either party will have been in default at the time of termination, each party will be relieved of all other obligations, financial or otherwise, as of the termination date, and will have no other liability to the other under this Agreement except for amounts which will have been due before the termination date. 31. Third Parties. Nothing in this Agreement will create any enforceable rights in any person or entity not a party thereto. 32. No Other Agreement; Severability. This Agreement represents the entire understanding of the parties and supersedes any previous documents, correspondence, conversations, or other oral or written communications or understandings related to the Program or this Agreement. If any provision of this Agreement shall finally be determined to be unlawful, then such provision shall be deemed to be severed from this Agreement and every other provision of this Agreement shall remain in full force and effect. 33. Modifications, Waiver or Assignment of Agreement. This Agreement may not be assigned, waived or modified by the parties except in writing signed by authorized representatives of both parties, nor will the conduct or actions of any party be deemed a modification or waiver. A modification or waiver of a part of this Agreement will not constitute a waiver or modification of any other portion of this Agreement. 34. Construction; Dispute Resolution. This Agreement will be governed by and construed under New York law without regard to that jurisdiction's choice of law rules, and, where applicable, under the laws of the United States. The parties agree to submit any disputes arising under this Agreement to binding arbitration before a single arbitrator chosen by the parties, and the decision of such arbitrator will be enforceable in the local or Federal courts located, and the parties consent to personal jurisdiction and venue, in the City, County, and State of New York. For purposes of this provision, Michael Ratner, Esq., of New York, New York, is hereby designated as arbitrator chosen by the parties. If he is unwilling or unable to serve, in the event of a dispute the parties will promptly choose another arbitrator. 35. Personal Property. Upon execution of this Agreement, Pacifica will convey and deliver to Producer the contents of the Democracy Now! office in the studios of WBAI, New York, and the Zephyr unit.
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