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HomeMy WebLinkAboutABC Holding Company, Inc. - 2014-06-02Dept. ID CS 14-015 Page 1 of Meeting Date: 6/2/2014 ,gg0ty6 L_1,6-�_ 4 - 0 CITY OF HUNTINGTON BEACH REQUEST FOR. CITY COUNCIL ACTIOK MEETING DATE: 6/2/2014 SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Janeen Laudenback, Director of Community Services SUBJECT: Agreement between the City of Huntington Beach and ABC Holding Company, Inc., licensee for KABC-TV, for broadcasting services for the 2014 July 4th Parade. Statement of Issue: The City is seeking a one-year Agreement with ABC Holding Company, Inc., licensee for KABC-TV, for Broadcasting Services to broadcast the 2014 July 4th Parade. Financial Impact: Not applicable Recommended Action: Approve the "Agreement between the City of Huntington Beach and ABC Holding Company, Inc. for Broadcasting Services" for the 2014 July 4th Parade and authorize the Mayor and City Clerk to execute any and all documents necessary to complete this transaction, Alternative Action(s): Do not approve the Agreement between the City of Huntington Beach and ABC Holding Company, Inc. for Broadcasting Services for the 2014 July 4th Parade and direct staff accordingly. Analysis: ABC Holding Company, Inc., the licensee for KABC-TV in Los Angeles (KABC-TV), approached the City of Huntington Beach with an offer to broadcast the 2014 July 4th Parade. The Parade is the largest known parade west of the Mississippi and is a long -held tradition in Huntington Beach. The increased exposure that the City will receive as a result of this agreement will be invaluable. Southland residents from Santa Barbara to the Inland Empire to Northern San Diego County will enjoy the live coverage seen by thousands that will promote Huntington Beach and provide positive media coverage. The two-hour live coverage will feature Huntington Beach as a destination, tourism city — with multiple camera locations up and down Main Street and Pacific Coast Highway — the coverage will serve as a promotional piece for Huntington Beach, with shots of the pier, beach, downtown, and other locations. In addition to this day of event coverage, KABC-TV will begin promoting the parade at the end of June with the City and parade logos to garner interest and generate excitement. While the current contract is for the 2014 event only, KABC —TV would like a multi -year deal with the City. HB -47- Item 7. - I Dept. ID CS 14-015 Page 2 of 2 Meeting Date: 6/2/2014 The Agreement permits KABC-TV to act as the official broadcaster of the 2014 event, giving KABC- TV the exclusive right to broadcast and distribute the event live in any and all media now known and hereinafter developed. The City shall not permit any other broadcaster or distributer to broadcast the event, provided that City may continue to permit the broadcast of the event on the City's community access cable channel. A summary of the responsibilities and rights of the City and KABC-TV are listed below. City Responsibilities/Rights: 1. City will be responsible for securing all required permits, approval and support from any applicable governmental authority; organizing all elements of, and participants in the event, and ensuring that there is adequate security and crowd control in connection with the event. 2. City will provide KABC-TV with materials, including without limitation, archive footage for use in the coverage and/or promotion of the event. 3. City reserves the right to invite participation from other media outlets provided there is no direct conflict with KABC-TV. 4. City shall present terms governing KABC-TV involvement in future years within 120 days of the end of the 2014 event. 5. City will approve all advertising content and Pier Plaza Festival booth occupants. 6. City shall not use any logo, trade name, trademark, copyright or any other intellectual property rights of KABC-TV or its affiliates. 7. City shall not issue any press releases, publicity or other materials regarding its relationship with KABC-TV or this Agreement without KABC-TV's prior review and written consent. KABC-TV Responsibilities/Rights: 1. KABC-TV will retain all rights to the event footage. 2. KABC-TV will have the right to review, modify and approve all event scripts and said scripts will be provided to KABC no later than two to three days prior to the event. 3. KABC-TV will be responsible for all costs associated with the telecast and broadcast of the event. 4. KABC-TV shall have an exclusive right of first negotiation to continue as a media sponsor and exclusive distributor of the event in the year 2014 and beyond. 5. KABC-TV shall respond to City's future terms in writing within 60 days of receipt of City proposal. 6. KABC-TV will receive up to two parade entries/floats to be used only for KABC-TV personnel only, provided by KABC-TV. 7. Additional entries/floats will be made available to KABC-TV personnel if available. 8. Access to event sponsor list via the City website. 9. One full page color advertisement in the event program for KABC-TV. 10. One booth at parade Pier Plaza Festival. Environmental Status: Not applicable Strategic Plan Goal: Enhance quality of life Attachment(s): 1. Agreement Between the City of Huntington Beach and ABC Holding Company, Inc. for Broadcasting Services Item 7. - 2 NB -48- Execution Copy Aueement Between City of Huntinuton Beach and ABC Holding Company, Inc. for Broadcasting Services This Agreement, effective on 2014, is between ABC Holding Company Inc., licensee of KABC-TV ("KABC" or "KABC-TV"), and the City of Huntington Beach, California ("City"), for the purpose of defining the terms and conditions by which City has agreed to execute the annual July 4t' Parade (hereafter, the "Event") and to permit KABC-TV to act as the official broadcaster of the Event. The parties have agreed to the following: Event Overview and Ci . 's Responsibilities: Throughout the "Term" (as defined below) City will organize, administer, and execute all aspects of the annual Event, located in the Huntington Beach, California area. By way of example only, City will be responsible for (i) securing all required permits, approval and support from any applicable governmental authority; (ii) organizing all elements of, and participants in, the Event; (iii) ensuring that there is adequate security and crowd control in connection with the Event and; (iv) executing all other elements relating to the Event in accordance with and in a manner comparable to the tradition of the Event that has occurred in prior years. Without limiting the foregoing or any other representations and warranties herein, City represents and warrants that it has all governmental, venue and other third party rights that are necessary to hold the Event and to grant the rights granted to KABC hereunder. For each year during the Term, the telecast of the Event will occur on July 4 from approximately 10:00 a.m.- 12:00 p.m. 2. Official Broadcaster: KABC-TV will be the official and exclusive live broadcaster/distributor of the Event in any and all media now known and hereinafter developed. Station will promote the Event in its discretion. Subject to the terms of this Agreement, KABC-TV will telecast the Event live (such footage, in addition to all elements incorporated by KABC therein; e.g., materials and/or vignettes provided by KABC and City Materials (as defined below)), collectively, "Event Footage". 3. Broadcast Rights, Privileges and Requirements: A. KABC-TV will have the exclusive right to broadcast and distribute the Event live during the Term and City shall not permit any other broadcaster or distributer to broadcast or distribute the Event, provided that City may continue to permit the 14-4243/109850 1 broadcast of the Event on the Huntington Beach community access cable channel during the Term. B. City,will provide KABC-TV with materials, including, without limitation, archive footage (collectively, "City Materials") for use in KABC-TV's coverage and/or promotion of the Event. C. KABC will retain all rights to the Event Footage, as described more fully in Section 10 below. D. KABC will have the right to review, modify and approve all Event scripts; during each year of the Term, said scripts will be provided to KABC no later than two to three (2 to 3) days prior to the Event. E. City reserves the right to invite participation from other media outlets, other than local television stations, provided there is no direct conflict with KABC. 4. Production: KABC-TV will be responsible for all costs associated with the telecast and broadcast of the Event, and City will be responsible for all costs associated with its responsibilities as outlined in Section 1 above and throughout this Agreement. 5. Term; Right of Exclusive Negotiation: A. The term of this Agreement will commence as of Jqnk 2014 and will conclude following the conclusion of the 2014 Event ("Term"). B. KABC-TV shall have an exclusive right of first negotiation to continue as a media sponsor and exclusive distributor of the Event in the year 2014 and beyond. City shall present terms governing this involvement within 120 days of the end of the 2014 Event. KABC-TV shall respond to City's proposal, in writing, within 60 days of receipt of such proposal ("Exclusive Negotiation Period"). If KABC-TV and City, after good faith negotiations, fail to come to terms within this Exclusive Negotiation Period or any mutually agreed extension of the Exclusive Negotiation Period, City agrees that it shall not enter into an agreement with another program distributor or broadcaster without first offering KABC the opportunity to enter into an agreement with City on substantially similar monetary terms. KABC shall have seven (7) business days after receiving City's offer in which to enter into an agreement. If KABC does not accept said offer and City, in turn, declines such third party offer, the terms of this provision shall apply to any subsequent offers received by City. 6. On -site Exposure: KABC-TV will receive the following in connection with each Event during the Term at no additional cost: 14-4243/109850 2 A. Up to two parade entries/floats, to be used for KABC personnel only, provided by KABC. All requests for entries must be approved by the City, which approval shall not be unreasonably withheld or delayed. No political affiliation will be permitted. B. Additional entries/ floats will be made available to KABC personnel, if available. City will endeavor to make space available on other entries/floats for KABC . personnel. C. Access to Event sponsor list via the City website. D. One full page color advertisement in the Event program for KABC. All advertising content must be approved by the City, which approval shall not be unreasonably withheld or delayed. No political affiliation will be permitted. E. One booth at parade Pier Plaza festival. Occupant must be approved by the City, and all required paperwork must be completed prior to approval. 7. Trademark Guidelines; Press Releases: It is understood and agreed that City shall not use any logo, trade name, trademark, copyright or any other intellectual property rights of KABC or its affiliates in any manner without KABC's prior review and written consent in each instance, and that City shall not issue any press releases, publicity or other materials regarding its relationship with KABC or this Agreement without KABC's prior review and written consent. Any violation of this paragraph shall be deemed to be a material breach of this Agreement. 8. Relationship of Parties: Nothing herein shall be construed to place the parties in the relationship of partners or joint ventures or employers and employees and neither party shall have any right or power to obligate or bind the other in any manner whatsoever except as authorized in this Agreement or otherwise specifically authorized in writing. 9. Right of Termination: Either party may earlier terminate this Agreement (i) at any time in the event of a material breach by the other party which remains uncured after thirty (30) days prior written notice thereof or (ii) immediately following written notice to the other party if the other party (a) ceases to do business in the normal course, (b) becomes or is declared insolvent or bankrupt, (c) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days or (d) makes an assignment for the benefit of creditors. Upon termination or expiration of this Agreement, all provisions of this Agreement which may reasonably be interpreted or construed as surviving the expiration or termination of this Agreement (including, without limitation, ownership, warranties and indemnities) shall survive the expiration or sooner termination of this Agreement. 10. Ownership: It is understood and agreed that KABC owns and will own all_right, title and interest (including, without limitation, all copyrights) in and to all materials developed or used by KABC 14-4243/109850 3 hereunder (including, without limitation, the Event Footage and related promotional materials), and KABC shall have the right to use, reuse, reproduce, copyright, exhibit, display modify, distribute, and otherwise exploit such materials in any media now known and hereinafter created, throughout the world in perpetuity. Notwithstanding the foregoing, however, it is understood that, as between the parties, City will own the City Materials; provided, however, that City hereby grants to KABC and its designees a fully paid, royalty free, non- exclusive, irrevocable license to use, reuse, reproduce, copy, exhibit, display modify, distribute, and otherwise exploit the City Materials, as incorporated in the Event Footage and/or related promotional materials, throughout the world in perpetuity in any and all media now known and hereinafter created. 11. Force Ma eure: The parties understand that this is a "rain or shine" Event. The parties further understand that in the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision and such party is unable to overcome such inability to perform by the exercise of reasonable diligence, or if — in the case of KABC — the broadcast of the Event is preempted owing to force majeure and/or to air a special program or an event, a network program or any announcement deemed by KABC to be of public importance, such parry's performance shall be excused; provided that the party whose performance or attempt to cure is delayed or prevented gives the other party written notice as soon as reasonably possible. 12. City Warranties: City warrants and represents (i) that it has the right to enter into this Agreement and grant the rights and licenses herein contained (including, without limitation, licenses to the City Materials); (ii) that the Event and any activities associated with the Event are or will comply with all applicable federal, state or local laws, rules and regulations; and (iii) that there is no contract with any other person, firm or corporation which will in any way interfere with any rights granted under this Agreement to KABC-TV. City further warrants and represents (i) that it shall institute reasonable security and other safety measures in connection with the Event and shall maintain adequate insurance to protect KABC-TV against such claims relating to the Event (as specified in Section 14 below), and (ii) that in the production of the Event, all applicable collective bargaining agreements and applicable rules and regulations of any unions having jurisdiction were complied with and (iii) that no fee, compensation or any other payment shall ever be payable by KABC-TV to any person who performed services for the Event as a result of the broadcast and distribution of the Event Footage and related materials as provided in this Agreement. 13. Indemnity: (a) KABC-TV hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, reasonable costs and fees of litigation) arising out of or in connection with KABC-TV's (or KABC-TV's subcontractors, if any) negligent performance of this Agreement, the broadcast or use of any materials supplied by KABC-TV, or its failure to comply with any of its obligations contained in this Agreement by KABC-TV, 14-4243/109850 4 its officers, agents or employees except and to the extent such loss or damage was caused by the negligence or willful misconduct of CITY or its agents or employees. KABC-TV will conduct the defense at its sole cost and expense and CITY shall approve selection of KABC-TV's counsel, such approval not to be unreasonably withheld or delayed. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by KABC-TV. (b) CITY hereby agrees to protect, defend, indemnify and hold harmless KABC-TV, its parent companies, and all of its or their subsidiaries and affiliates and the respective officers, directors, employees and agents of each from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, reasonable costs and fees of litigation) arising out of or in connection with the CITY.'s (or the CITY's subcontractors, if any) negligent performance of this Agreement, the broadcast or use of any materials supplied bytheCITY, or its failure to comply with any of its obligations contained in this Agreement by the CITY, its officers, agents or employees except and to the extent such loss or damage was caused by the negligence or willful misconduct of KABC-TV or its agents or employees. The CITY will conduct the defense at its sole cost and expense and KABC-TV shall approve selection of CITY's counsel, such approval not to be unreasonably withheld or delayed. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by the CITY. (c) If any party entitled to indemnification hereunder (an "Indemnified Party") makes an indemnification request to the other (the "Indemnifying Party"), the Indemnified Party shall permit the Indemnifying Party to control the defense, disposition or settlement of the matter at its own expense, provided that, the Indemnifying Party shall not, without the written consent of the Indemnified Party enter into any settlement or agree to any disposition that imposes an obligation on the Indemnified Parry without the Indemnified Parry's prior written consent. The Indemnified Party shall notify the Indemnifying Parry promptly of any claim for which the' Indemnifying Party is responsible and shall cooperate with the Indemnifying Party in every commercially reasonable way to facilitate the defense of any such claim; provided that, the Indemnified Party's failure to notify the Indemnifying Party shall not diminish the Indemnifying Party's obligations under this section except to the extent that the Indemnifying Party is materially prejudiced as a result of the failure. An Indemnified Party shall at all times have the right to employ separate counsel and to participate in (but not control) any such action, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (a) the employment of counsel by the Indemnified Party has been authorized by the Indemnifying Party; (b) the Indemnifying Party has not 14-4243/109850 5 in fact employed counsel to assume the defense of the action within a reasonable time following receipt of notice; or (c) the Indemnified Party reasonably believes that the counsel selected by the Indemnifying Party has a conflict of interest in representing the Indemnified Party, in which instances the fees and expenses of such counsel shall be at the expense of the Indemnifying Party. 14. Insurance: KABC-TV shall obtain and furnish to CITY evidence of insurance covering the work performed by it hereunder. This policy shall provide coverage for KABC-TV's media liability in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and in the aggregate. A claims -made policy shall be acceptable if the policy further provides that: A. The policy retroactive_ date coincides with or precedes the initiation of the scope of work (including subsequent policies purchased as renewals or replacements). KABC-TV will make every effort to maintain similar insurance during the required extended period of coverage following the broadcast. If insurance is terminated for any reason, KABC-TV agrees to endeavor to purchase an extended reporting provision of at least two (2) years to report claims arising from work performed in connection with this Agreement. 15. Certificate of Insurance: Prior to commencing performance of the work hereunder, KABC-TV shall furnish to CITY a certificate of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverage as required by this Agreement; the certificate shall: A. provide the name and policy number of each carrier and policy; and B. state that the policy is currently in force. KABC-TV shall maintain the foregoing insurance coverage in force until the work under this Agreement is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverage shall not derogate from KABC-TV's defense, hold harmless and indemnification obligations as set forth in this Agreement. KABC-TV shall pay, in a prompt and timely manner, the premiums on the insurance hereinabove required. The CITY warrants that it is self -insured. 16.. Assignment: Neither City nor KABC-TV may assign this Agreement without the prior written consent of the other, except that KABC-TV may assign this Agreement and all rights herein to any party acquiring all or any portion of KABC-TV's television or radio business, assets or stock, or to any entity directly or indirectly controlling KABC-TV, controlled by KABC-TV, or under common control with KABC-TV. 17. Waiver; Severability: The failure of KABC-TV or City at any time or times to demand strict performance by the other of any of the terms, covenants or conditions set forth herein shall not be construed as a continuing waiver or relinquishment thereof and either may at any time demand strict and complete performance by the other of said terms, covenants and conditions. In the event that any one or more of the provisions of this Agreement should for any reason be held to be invalid or non -enforceable, such provision 144243/ 109850 6 May28 14 M54;a ABC7 8188637227 P.6 in fait MPICtWd Coun-wl to ansurne, the: defence of the action !thin a reason -able firn6 f I ollowing *­eip 'otice.; or (c) the Indemnified. party reasonably beliews (haL the counsel w1ccted. by the .Itademnifylrtg Party has a conflict CJf 1111cre-St in representing the Indemnified Party, in Avhieb in4snzts th . c fees acid expos of such coun3el:shrAl be at the ,expeDse of $e jada_Mnif+ingParw. A. 1AHTM-190e: KAB&TV AM obWin: and fumish to CITY gvidzr•.ec Gf:i-zmM1cO- cb-vering .wk perfibrinpd by it hereunder. This pot icy shall provide coverage far kABc- S :pia lie lily in an amount notkss than One mnar, m1k,. (S"'00(l10000d) per . mmirrelic-C ft�d intheagm-apte; A ofaims-ma& policy SMI'De =6ptaN,,c A. The pof.Tcy rely-cectiv.- date coincides, with or procedes the initiation of the Scope af w-cfk (including subloquon" policie!i p=hased as rumwdis orreplacemcinis)- KABC-TINI N�U, make evm ff6rt t 'mt er nud --in sirtlilar iTrsuranPolduring the required extep &d period of wvcrage. follov4ng the broadcast. If im-41mrim is terminated for any ieasoTL KABC- TIV -*ees. to t'AldQa','Dr to pWrhat an extended repurdnag:pirmision of at I- St tvvc, (2) years to repot clairris arising fsom work P.�.rfbrmed in cowwtioli with thiSAgivement 15. Certificate Prior to, con-im oncin XT=io� of . the -work hercuudcr- KAR. -C-TV S4 to CPTY a hall RIM g1the f.bregoing A, provide tfiejiwrte AN.poliqy number of �rct calnier and policy; and a. AM tbarthe poliiy is cmTruiltly.in fuTce. KABC-7V A) -all mj,,t'ujtajn the fbitgojagtanc.e v7n fOrg it the ANVAMACT this Agetmerit 15 fi)[13, cwnpWkcd and accirpted �-:C M% The Tequij-mient for ur*ing the foregoing insumnce COV'rage A -all ridt derogte fr6m KkBC-T\"S �tefeti:e, held hmmless.and �indft­afl&-Mim MbiigAhi�anq AS set fbrth irt this A e ;rtem nt Y_A_BCTV,shA payip apmmpt.and timelymaraler, thoprom 1wils.cin the The Crly7waUTMI)%- thm it is Self-insurod, ,L6, Assip men.- NCIL'ber City WT N.NBC-Tv nmv a!;'im ff& the prior wTitf&, co opt of the- officr'exctpt tint KABCJ7V May z&-Ap Ns Ag=ncrit und ill ndiUj herej r .1 any.pv ar, to acauhing -all or, any puj�dqri ofKABC.-TVs mteNi ion Or radio, bus . S business, assets or:stock .critic an), cirfsty d i rtctly :,nu inctirmfly =w[firtga KABC--rV, contrTillaby KNBC-TV, or urideT-coaimon -.0 n1rol with KkBCJV. .7. Waiver SeverabOi Tht railum-of K.UC-TV or CiLy.at any tirric -or flnies to deffiaYid strict performance b1vtIwother ofanY*&the tffrnls, cD*At-,riants.c)rcoTiditiors,:;cE,fon h hEnin shafl not be -zonstrm-d as a cwifinuing vMvver or srel.inguisrarrrcmt dier-e-if tind either imy at any time dtafiand :stria and '-mplew pcf-fon-fiance by the ether oflaid teurnk i`oven.ants aiid.mndhiou.s. In Thv exert ffiat any one or rngye of the pmvisioils Of-ffiis,Agm-prnent i'lamid for any reeaso�i be held to br,it valid ilk nQA-ORfbpnblc, rich prDv1qich 14-4.24311.0.9- D 6: shall be deemed modified to the extent necessary in order to effectuate the purposes or to implement the terms of this Agreement, and the remaining provisions of the Agreement shall remain in full force and effect as if this Agreement had been executed with the invalid provision(s) eliminated. 18. Legal Services Subcontracting Prohibited: KABC-TV and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. KABC-TV understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by KABC-TV. 19. Attorney's Fees: In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorneys fees from the nonprevailing party. 20. Choice of Law and Forum: This Agreement and performance hereunder shall be governed by the laws of the State of California, without giving effect to the principles of conflict of laws. The parties agree on behalf of themselves and any person claiming by or through them that the sole and exclusive jurisdiction and venue for any litigation which may arise hereunder shall be an appropriate federal or state court located in the County of Orange, California. 21. Notices: Any notice required to be given hereunder shall be given in writing, by hand delivery, by overnight courier, by facsimile (with a copy sent via first class mail) or by certified or registered mail, return receipt requested: For KABC: Howard Daniels KABC-TV 500 Circle Seven Drive Glendale, CA 91201 Facsimile: (818) 863-7747 For City: Julie Toledo City of Huntington Beach 2000 Main Street, 4ch Floor Huntington Beach, CA 92648 Facsimile: (714) 536-5233 14-4243/109850 7 Notices shall be deemed received the same day if hand delivered or sent via facsimile, the next day if sent via overnight courier, or three days after mailing if sent via registered or certified mail. 22. No Modification; Entire Agreement: No modification or amendment of this Agreement shall be binding upon any party unless such modification is in writing and signed by all parties hereto. This Agreement constitutes the entire agreement between the parties and supersedes all prior oral or written agreements among them. THE PARTIES HERETO have executed this Agreement as of the date and year first above written: ABC HOLDING COMPANY INC., Licensee of KABC-TV By: print name ITS: President& General Manager CITY OF HUNTINGTON BEACH, a municipa corporation of the State of California Aal City Manager (Pursuant To HBMC §3.03.100) APPROV-ED AS TO FORM: City Attorne� RE VIE APPROVED: City Manager ly for contracts $50, 000. 00 and over) 14-4243/109850 8 CERTIFICATE OF LIABILITY INSURANCE DATE (MM DIYYYY) 6/2312014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER, THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the poacy(les) must be endorsed. If SUBROGATION LS WAIVED, subject to are terms and conditions or the porky, certain policies may require an endorsement- Astaternent on this certificate does not conter rights to the certit"rcate holder In Ileu of such endorsemen(s). PRODUCER AON RISK INSURANCE SERVICES WEST, INC. LOS ANGELES, CA OFFICE 707 WILSHIRE BLVD., SUITE 280D LOS ANGELES, CA 90017-0460 USA " STEPHANIE CHU ° 0he 213-630-2032 r" 847-953-1823 INSURER(S) AFFORDING COVERAGE NAiC I/ INSURERA: ACE AMERICAN INSURANCE COMPANY 22667 INSURED THE WALT DI SNEY COMPANY 500 SOUTH BUENA VISTA STREET BURBANK, CA 91521-9740 INSURER B: INSURER C: INSURER D: INSURER E: INSURER R COVERAGES CERTIFICATE NUMBER: REVISION NUMBERS: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTHWITHSTANDING ANY REQUIREMENT, TERIA OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT VMH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN 61AY HAVE BEEN REDUCED BY PAID CLAIMS. ssn TYPE OF INSURANCE ADDL INSR SUaR 1YVD POLICY NUMBER POLICY EFF 4 POLX:Y EXP AI LIMITS A X COMMERCIAL GENERAL LIABILITY ap.�atS `,�.l HDOG27335056 % , , ,�,� (�) L' 06/30/2014 ; 06/30/2015 EACH OCCURRENCE $ I.000,0DO DAMAGE TO RENTED $ 1 ODO OOO MED EXP (Af—persm,) GENLAGGREGATE X UMT APPUES PER-' PRO- POLICY a JEEC LOC OTHER PERSONAL&AOV INJURY $ 1.0D0,000 GENERALAGGREGATE $ 1,000,000 PRODUCTS-=IP/OP AGG $ 1,000,000 A AUTOMOBILE LIABILITY JAIVIAUTO ALL (AIMED a AUTOS AUr05 FIRE1DAUTOS OSA71FD PD SELF INSLOZED `+ 1 i`! ,l' ''` ' COMBINED SINGLEUMiT BOIXLYINJURY(Perparsca) BOIXLY INJURY O'er accdvq PROPERTY DAMAGE UMBRELLA LtAS EXCESS Like BUR CLAIMS MADE EACH OCCURRENCE AGGREGATE DED I I RETENTIONS A WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETORIPARTNERSAD(ECUIIVE YIN OFFICERMENSER EXCLUDED? Q (wY in M0 ityes,dasrnbaurirr DESC TKWOFOPERATMbxl WA WLRC48012991 (ADS) SCFC48013018 (I,IA & W) DW3012014 06=2015 X PER OTFF STATUTE FJL E.L EACH ACCIDENT $ 1,000,DD0 EL DISEASE -EA EMPLOYEE $ 1,000,000 EL DISEAS EPOLICY LIMT $ 110D0,0D0 A A OTHER XS WORKERS COMP & EMPLOYER LIAB XS WORKERS COMP & EMPLOYER LIAR VH'CUC48012978 (CA) Ncuc iawam (FL) 06130V2014 07/01/2014 OBt30/2015 OW=015 Employers Liability Employers UaWlty $ 1,0D0,000 $ 1,000,000 DESCRIPTION OF OPERATIONSILOCATiONSIVEHICLES (ACORD 101, Addtbnal Remarks SGIedtde, may be altadwd'S more space if regwied) Certificate holder is hereby named as an additional insured to the extent required in the contractual agreement with the named insured. Re: KABC-TV broadcast production of July 4th Parade event on 714114. ♦ "F%i jrl-^r c nUi.ucrc �a+rws.�u+, wr. City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 cc: Carmella Zigler SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. REPRESENTATIVE AON RISK INSURANCE SERVICES WEST, INC. ACORD 26 (2014101) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: HDOG27335056 COMMERCIAL GENERAL LIABILITY CG 20 10 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Or anization s : Locations Of Covered Operations City of Huntington Beach Re: KABC-TV broadcast production of July 4th Parade event on 7/4114. (The above named person or organization is included as additional insured only to the extent required in the contractual agreement with the named insured) Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. © ISO Properties, Inc., 2004 CG 20 10 07 04 May 28 1410:53a ABC7 8188637227 p.1 Execution Copy Agreement Between City of Huntington Beach and ABC Holding Company, Inc. for Broadcastln2 Services This Agreement, effective on , 2014, is between ABC Holding Company Inc., licensee of KABC-TV ("KABC" or "KABC-TV"), and the City of Huntington Beach, California ("City"), for the purpose of defining the terms and conditions by which City has agreed to execute the annual July 4" Parade (hereafter, the "Event") and to permit KABC-TV to act as the official broadcaster of the Event. The parties have agreed to the following: Event Overview and Citv's Responsibilities: Throughout the "Term" (as defined below) City will organize, administer, and execute all aspects of the annual Event, located in the Huntington Beach, California area. By way of example only, City will be responsible for (i) securing all required permits, approval and support frorn any applicable governmental authority; (ii) organizing all elements of, and participants in, the Event; (iii) ensuring that there is adequate security and crowd control in connection with the Event and; (iv) executing all other elements relating to the Event in accordance with and in a manner comparable to the tradition of the Event that has occurred ni prior years. Without limiting the foregoing or any other representations and warranties herein, City represents and warrants that it has all governmental, venue and other third patty rights that are necessary to hold the Event and to grant the rights granted to KABC hereunder. For each year during the Term, the telecast of the Event wi 11 occur on July 4 from approximately 10:00 a.m.- 12:00 p.m. 2. Official Broadcaster: KABC-TV will be the official and exclusive live broadcaster/distributor of the Event in any and all media no-w known and hereinafter developed. Station will promote the Event in its discretion. Subject to the terms of this Agreement, KABC-TV will telecast the Event live (such footage, in addition to all elements incorporated by KA13C therein; e.g., materials and/or vignettes provided by KABC and City Nlaterials (as defined below)), collectively, "Event Footage". 3. Broadcast Rights,_ Privileges and Requirements: A. KABC-TV will have the exclusive right to broadcast and distribute the Event live during the Term and City shall not permit any other broadcaster or distributer to broadcast or distribute the Event, provided that City may continue to permit the 14-4243/109850 May 28 14 10:53a ABC7 8188637227 p.2 broadcast of the Event on the Huntington Beach community access cable channel during the Term. B. City will provide KABC-TV with materials, including, without limitation, archive footage (collectively, "City Materials") for use in KABC-TVs coverage and/or promotion of the Event. C. KABC will retain all rights to the Event Footage, as described more fully in Section 10 below. D. KABC will have the right to review, modify and approve all Event scripts; during each year of the Term, said scripts will be provided to KABC no later than two to three (2 to 3) days prior to the Event. E. City reserves the right to invite participation from other media outlets, other than local television stations, provided there is no direct conflict with KABC, 4. Production: KABC-TV will be responsible for all costs associated with the telecast and broadcast of the Event, and City will be responsible for all costs associated with its responsibilities as outlined in Section 1 above and throughout this Agreement. 5. Term: Right of Exclusive Negotiation: A. The term of this Agreement will commence as of 2014 and will conclude following the conclusion of the 2014 Event ("Term"), B. KABC-TV shall have an exclusive right of first negotiation to continue as a media sponsor and exclusive distributor of the Event in the year 2014 and beyond. City shall present terms governing this involvement within 120 days of the end of the 2014 Event. KABC-TV shall respond to City's proposal, in writing, within 60 days of receipt of such proposal ("Exclusive Negotiation Period"). If KABC-TV and City, after good faith negotiations, fail to come to terms within this Exclusive Negotiation Period or any mutually agreed extension of the Exclusive Negotiation Period, City agrees that it shall not enter into an agreement with another program distributor or broadcaster without first offering KABC the opportunity to enter into an agreement with City on substantially similar monetary terms. KABC shall have seven (7) business days after receiving City's offer in which to enter into an agreement. If KABC does not accept said offer and City, in turn, declines such third party offer, the terms of this provision shall apply to any subsequent offers received by City. 6. On -site Exposure: KABC-TV will receive the following in connection with each Event during the Term at no additional cost: I4-4243/109850 2 May 28 14 10:53a ABC7 8188637227 p.3 A. Up to two parade entries/floats, to be used for KABC personnel only, provided by KABC. All requests for entries must be approved by the City, which approval shall not be unreasonably withheld or delayed. No political affiliation will be permitted, B. Additional entries/ floats will be made available to KABC personnel, if available. City will endeavor to make space available on other entries/floats for KABC personnel. C. Access to Event sponsor list via the City website. D. One full page color advertisement in the Event program for KABC. All advertising content must be approved by the City, which approval shall not be unreasonably withheld or delayed. No political affiliation will be permitted. E. One booth at parade Pier Plaza festival. Occupant must be approved by the City, and all required paperwork must be completed prior to approval. 7. Trademark Guidelines; Press Releases: It is understood and agreed that City shall not use any logo, trade name, trademark, copyright or any other intellectual property rights of KABC or its affiliates in any manner without KABC's prior review and written consent in each instance. and that City shall not issue any press releases; publicity or other materials regarding its relationship with KABC or this Agreement without KABC's prior review and written consent. Any violation of this paragraph shall be deemed to be a material breach of this Agreement. 8. Relationship of Parties: Nothing herein shall be construed to place the parties in the relationship of partnoTs or joint ventures or employers and employees and neither party shall have any right or power to obligate or bind the other in any mariner whatsoever except as authorized in this Agreement or otherwise specifically authorized in writing. 9. Right of Termination: Either party may earlier terminate this Agreement (i) at any time in the event of a material breach by the other party which remains uncured after thirty (30) days prior written notice thereof or (ii) immediately following written notice to the other party if the other party (a) ceases to do business in the normal course, (b) becomes or is declared insolvent or bankrupt, (c) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days or (d) makes an assignment for the benefit of creditors. Upon tennination or expiration of this Agreement, all provisions of this Agreement which may reasonably be interpreted or construed as surviving the expiration or termination of this Agreement (including, without limitation, ownership, warranties and indemnities) shall survive the expiration or sooner termination of this Agreement. 10. Ownership: It is understood and agreed that KABC owns and will own all right, title and interest (including, without limitation, all copyrights) in and to all materials developed or used by KABC 14-42431109850 3 May 28 1410:53a ABC7 8188637227 p.4 hereunder (including, without limitation; the Event Footage and related promotional materials), and KABC shall have the right to use, reuse, reproduce, copyright, exhibit, display modify, distribute, and otherwise exploit such materials in any media now known and hereinafter created, throughout the world in perpetuity. Notwithstanding the foregonng, however, it is understood that, as between the parties, City will own the City Materials; provided, however, that City hereby grants to KABC and its designees a fully paid, royalty free, non- exclusive, irrevocable license to use, reuse, reproduce, copy, exhibit, display modify, distribute, and otherwise exploit the City Materials, as incorporated in the Event Footage and/or related promotional materials, throughout the world in perpetuity ui any and all media now known and hereinafter created. 1 I . Force Majeure: The parties understand that this is a "rain or shine" Event. The parties further understand that in the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision and such party is unable to overcome such inability to perform by the exercise of reasonable diligence, or if — in the case of KABC — the broadcast of the Event is preempted owing to force majeure and/or to air a special program or an event, a network program or any announcement deemed by KABC to be of public importance, such parry's performance shall be excused; provided that the party whose performance or attempt to cure is delayed or prevented gives the other party written notice as soon as reasonably possible. 12. Cih, Warranties: City warrants and represents (i) that it has the right to enter into this Agreement and grant the rights and licenses herein contained (including, without limitation, licenses to the City Materials); (ii) that the Event and any activities associated with the Event are or will comply with all applicable federal, state or local laws, rules and regulations; and (iii) that there is no contract with any other person, firm or corporation which will in any way interfere with any rights granted under this Agreement to KABC-TV. City further warrants and represents (i) that it shall institute reasonable security and other safety measures in connection with the Event and shall maintain adequate insurance to protect KABC-TV against such claims relating to the Event (as specified in Section 14 below), and (ii) that in the production of the Event, all applicable collective bargaining agreements and applicable rules and regulations of any unions having jurisdiction were complied with and (iii) that no fee, compensation or any other payment shall ever be payable by KABC-TV to any person who performed services for the Event as a result of the broadcast and distribution of the Event Footage and related materials as provided in this Agreement. 13. Indemnity: (a) KABC-TV hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, reasonable costs and fees of litigation) arising out of or in connection with KABC-TV's (or KABC-TV's subcontractors, if any) negligent performance of this Agreement, the broadcast or use of any materials supplied by KABC-TV, or its failure to comply with any of its obligations contained in this Agreement by KABC-TV, 14-4243/109850 4 May 28 14 10:53a ABC7 8188637227 p.5 its officers, agents or employees except and to the extent such loss or damage was caused by the negligence or willful misconduct of CITY or its agents or employees. KABC-TV will conduct the defense at its sole cost and expense and CITY shall approve selection of KABC-TV's counsel, such approval not to be unreasonably withheld or delayed. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by KABC-TV. (b) CITY hereby agrees to protect, defend, indemnify and hold harmless KABC-TV, its parent companies; and all of its or their subsidiaries and affiliates and the respective officers, directors, employees and agents of each from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, reasonable costs and fees of litigation) arising out of or in connection with the CITY's (or the CITY's subcontractors, if any) negligent performance of this Agreement, the broadcast or use of any materials supplied by the CITY, or its failure to comply with any of its obligations contained in this Agreement by the CITY, its officers, agents or employees except and to the extent such loss or damage was caused by the negligence or willful misconduct of KABC-TV or its agents or employees, The CITY will conduct the defense at its sole cost and expense and KABC-TV shall approve selection of CITY's counsel, such approval not to be unreasonably withheld or delayed. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable, The policy limits do not act as limitation upon the amount of indemnification to be providedby the CITY. (c) if any party entitled to indemnification hereunder (an "Indemnified Party") makes an indemnification request to the other (the "Indemnifying Parry"), the Indemnified Parry shall permit the .hndemnifying Party to control the defense, disposition or settlement of the matter at its own expense, provided that, the Indemnifying Party shall not, without the written consent of the Indemnified Party enter into any settlement or agree to any disposition that imposes an obligation on the Indemnified Party without the Indemnified Party's prior written consent. The Indemnified Party shall notify the Indemnifying Parry promptly of any claim for which the Indemnifying Party is responsible and shall cooperate with the Indemnifying Parry in every commercially reasonable way to facilitate the defense of any such claim; provided that, the Indemnified Party's failure to notify the Indemnifying Party shall not diminish the Indemnifying Party's obligations under this section except to the extent that the Indemnifying Party is materially prejudiced as a result of the failure. An Indemnified Party shall at all times have the right to employ separate counsel and to participate in (but not control) any such action, but the fees and expenses of such counsel shall be at the expense of the indemnified Party unless (a) the employment of counsel by the Indemnified Partv has been authorized by the Indemnifying Party; (b) the Indemnifying Party has not 144243!109850 5 May 28 14 10:54a ABC7 8188637227 p.6 in fact employed counsel to assume the defense of the action within a reasonable time following receipt of notice; or (c) the Indemnified Party reasonably believes that the counsel selected by the Indemnifying Party has a conflict of interest in representing the Indemnified Party, in which instances the fees and expenses of such counsel shall be at the expense of the Indemnifying Party. 14. Insurance: KABC-TV shall obtain and furnish to CITY evidence of insurance covering the work performed by it hereunder. This policy shall provide coverage for KABC-TV's media liability in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and in the aggregate. A claims -made policy shall be acceptable if the policy further provides that: A. The policy retroactive date coincides with or precedes the initiation of the scope of work (including subsequent policies purchased as renewals or replacements). KABC-TV will make every effort to maintain similar insurance during the required extended period of coverage following the broadcast. If insurance is terminated for any reason, KABC-TV agrees to endeavor to purchase an extended reporting provision of at least two (2) years to report claims arising from work performed in connection with this Agreement. 15. Certificate of Insurance: Prior to cormnencing performance of the work hereunder. KABC-TV shall furnish to CITY a certificate of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverage as required by this Agreement; the certificate shall: A. provide the name and policy number of each carrier and policy; and B. state that the policy is currently in force. KABC-TV shall maintain the foregoing insurance coverage in force until the work under this Agreement is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverage shall not derogate from KABC-TV's defense, hold harmless and indemnification obligations asset forth in this Agreement. KABC-TV shall pay, in a prompt and timely manner, the premiums on the insurance hereinabove required. The CITY warrants that it is self -insured. 16. Assi gnmeni: Neither City nor KABC-TV may assign this Agreement without the prior written consent of the other, except that KABC-TV may assign this Agreement and all rights herein to any party acquiring all or any portion of KABC-TV's television or radio business, assets or stock, or to any entity directly or indirectly controlling KABC-TV, controlled by KABC-TV, or under common control with KABC-TV. 17. Waiver; Severability: The failure of KABC-TV or City at any time or times to demand strict performance by the other of any of the terms, covenants or conditions set forth herein shall not be construed as a continuing waiver or relinquishment thereof and either may at arty time demand strict and complete performance by the other of said terms, covenants and conditions. In the event that any one or more of the provisions of this Agreement should for any reason be held to be invalid or non -enforceable, such provision 14-4243/109850 6 May 28 14 10:55a ABC7 8188637227 p.7 shall be deemed modified to the extent necessary in order to effectuate the purposes or to implement the terms of this Agreement, and the remaining provisions of the Agreement shall remain in full force and effect as if this Agreement had been executed with the invalid provision(s) eliminated. 18. Legal Services Subcontracting Prohibited: KABC-TV and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. KABC-TV understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by KABC-TV. 19. Attorney's Fees: In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each parry shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the nonprevailing party. 20. Choice of Law and Forum: This Agreement and performance hereunder shall be governed by the laws of the State of California, without giving effect to the principles of conflict of laws. The parties agree on behalf of themselves and any person claiming by or through them that the sole and exclusive jurisdiction and venue for any litigation which may arise hereunder shall be an appropriate federal or state court located in the County of Orange, California, 21. Notices: Any notice required to be given hereunder shall be given in Nvriting, by hand delivery, by overnight courier, by facsimile (with a copy sent via first class mail) or by certified or registered mail, return receipt requested: For KABC: Howard Daniels KAB C-TV 500 Circle Seven Drive Glendale, CA 91201 Facsimile: (818) 863-7747 For City: Julie Toledo City of Huntington Beach 2000 Main Street, 4'1' Floor Huntington Beach, CA 92648 Facsimile: (714) 536-5233 14-4243/109850 7 May 28 14 10:55a ABC7 8188637227 p.8 Notices shall be deemed received the same day if hand delivered or sent via facsimile, the next day if sent via overnight courier, or three days after mailing if sent via registered or certified mail. 22. No Modification: Entire Agreement: No modification or amendment of this Agreement shall be binding upon any party unless such modification is in writing and signed by all parties hereto. This Agreement constitutes the entire agreement between the parties and supersedes all prior oral or written agreements among them. THE PARTIES HERETO have executed this Agreement as of the date and year first above written: ABC HOLDING COMPANY INC., Licensee of K 4BC-TV By: ,T! �i� ✓ , �� f 4,&N0--D K�- Erg 1Z print name ITS: President& General Manager 14-4243/I 04850 8 CITY OF HUNTINGTON BEACH, a municipal oration of the State of California City Manager �(PLIYII To HBW §3. 03.I00) A-PPRUVED AS TO FORM: City Atto y APPROVED: City Manager contracts $50,000.00 and over)