Loading...
HomeMy WebLinkAboutAgenda - 09-15-1998 - 8hORANGE COUNTY BOARD OF COMMISSIONERS Action Agenda Item No 9-h ACTION AGENDA ITEM ABSTRACT Meeting Date: September 15,1998 1. SUBJECT: Renewal of Publication and Distribution Agreement for the Department on Aging's Senior Times DEPARTMENT: Aging ATTACHMENT(S): Agreement PURPOSE: PUBLIC HEARING YES NO _X_ BUDGET AMENDMENT YES NO X INFORMATION CONTACT: Jerry M. Passmore, ext. 2000 TELEPHONE NUMBER Hillsborough 732 -8181 Chapel Hill 967 -9251 Mebane 227 -2031 Durham 688 -7331 Request to renew agreement with the Durham Herald Company to publish and distribute the Department's bi- monthy Senior Times newspaper for a three year period. In addition to mailing a Senior Times to the 5,000 + seniors on the Department on Aging's mailing list, the Herald will also insert the Senior Times into a Sunday edition of the Chapel Hill Herald. All costs incurred in the publication and distribution of the Senior Times will b paid by The Durham Herald Company. BACKGROUND: Since 1980 the Department on Aging has been publishing and distributing a newsletter to Orange County Seniors who have applied for their Senior Tarheel Discount Card and expressed interest in being placed on the mailing list. In 1993 the Department began to sell advertising to offset the increasing costs of this publication. Later that year the Durham Herald Company proposed to publish and mail the Senior Times for the Department in exchange for the exclusive right to sell the advertising. Additionally, the Senior Times would be inserted into a Sunday edition. This arrangement increased circulation while reducing county expense by over $10,000 and eliminating staff time for sales and production. The renewal agreement is essentially the same as the previous agreement which includes the Herald's trademark and copyright of printed materials. RECOMMENDATION: The Manger recommends approval to renew the Licensing Agreement between the County and the Durham Herald Company for the publishing and distribution of the Dept. on Aging's bi- monthly Senior Times newspaper for a three year period effective September 1 st. H: \Abstract \Ab80918a.Doc 2. THIS LICENSING AGREEMENT ( "Agreement ") is made this 1" day of September, 1998 between THE DURHAM HERALD COMPANY d/b /a The Herald -Sun and The Chapel Hill Herald ( "the Publisher ") and Orange County on behalf of the Department On Aging ( "the Partner ") for the publication and distribution of Senior Times ( "the Publication "). 1. EXCLUSIVITY— In exchange for the Publisher's distribution of Senior Tunes and for other good and valuable consideration, the Partner grants to the Publisher the exclusive right and privilege and distributing Senior Times on the terms and conditions contained herein. 2. GRANT OF LICENSE — 2.1 As used in this Agreement, the following terms shall have the meanings indicated: (a) "Licensed Materials" means the editorial content provided by the Partner, including all languages, editions, issues, versions and updates published or otherwise made commercially available during the term of this Agreement. (b) "Permitted Uses" means products and services consisting of, or utilizing, electronic access, distribution, reproduction or use of information. Without limiting the generality of the foregoing. "Permitted Uses" includes products and services utilizing the following access, delivery or use technologies: online; local area network; wide area network; distributed media; electronic mail and messaging; facsimile transmission; audiotext; videotext; cable broadcast; satellite broadcast; radio and television broadcast; and information products and services based upon electronic access, distribution, reproduction or use technologies now known or hereafter developed. 2.2 The Partner hereby grants to the Publisher an exclusive license to use and authorize use of the Licensed Materials and any portion thereof in Permitted Uses, including rights to reproduce, display and distribute Licensed Materials in connection with producing, distributing and marketing Permitted Uses and rights to authorize third parties to reproduce, distributed and display Licensed Materials from or through Permitted Uses. 2.3 The rights granted to the Publisher encompass distribution by agents of the Publisher and other distributors. 2.4 The Partner represents and warrants that it is authorized to grant this license to the Publisher and covenants that the Publisher's exercise of this license will infringe no copyright or other right of any person or entity. 3. SPECIFICATIONS — In exchange for the right to sell advertising space in Senior Times and other good and valuable consideration, the Publisher agrees to print Senior Times to the following specifications: 3.1 Publication Dates. Senior Times will be published bimonthly. 3.2 Distribution. Distribution of Senior Times will be as follows: a. 14,800 Chapel Hill Herald, paid subscribers only b. 5,200 overruns direct - mailed by The Herald -Sun C. 3,000 to be picked up on dock d. 2,000 racked in Orange County 3. 3.3 Format/Paper Stock. Senior Times will be printed on a tabloid section of 30# newsprint with a four -color cover and color on a space - available basis for editorial use on the inside. The Publisher reserves the right to limit the number of color separations per issue. 3.4 Production. The Publisher will, at its cost, provide turnkey coordination of all copy as provided by the Partner on a bi- monthly basis. This coordination will include typesetting, layout, color separations, plates, negatives and newsprint costs as related to the production of the sections. The Publisher will not charge any additional production costs to the Partner without the prior approval of the Partner. 3.5 Photography. A Herald -Sun freelance photographer will be provided to the Partner, subject to availability but at no cost to the Partner, on an as- needed basis for use related to Senior Times . All coordination of assignments will be made through a Herald -Sun representative to be designated by the Publisher. The Publisher reserves the right to limit the number of assignments which will be performed by the Publisher. 3.6 Content. The content of Senior Times will consist of copy provided by the Partner and any articles or feature stories which have been previously printed in a Durham Herald Company product. There will be no charge to the Partner for republication of Herald -Sun materials. The selection of copy will be at the discretion of the Partner and the editor of Senior Times subject to the approval of the Publisher. Such approval shall not be withheld unreasonably. The Partner's failure to object not later than 24 hours prior to publication constitutes approval by the Partner. 3.7 Editorial Responsibility. The Partner reserves the right to approve all copy and design of Senior Times prior to an assigned deadline. Inquiries concerning the editorial content of the magazine will be directed to the Partner. Failure to object not later than 24 hours prior to publication constitutes approval by the Partner. 4. ADVERTISING — 4.1 'The Publisher will not permit advertisements of the following products or services in Senior Times : alcoholic beverages, including wine and beer; political, religious, or sexually explicit materials; tobacco; gambling; or personal messages (including but not limited to, individual birthdays, anniversaries, etc.). 4.2 The Publisher shall warrant that any content provided by the Publisher, including advertising, will not contain any libelous, obscene or otherwise unlawful matter, and that such content does not infringe upon statutory or common law copyright or any other right of any person or property anywhere in the world. The Publisher will have the right to edit all contents of the publication, subject to the approval by the Partner. Such approval shall not be withheld unreasonably. The Partner's failure to object to advertising copy not later than 24 hours prior to publication constitutes approval by the Partner. The warranties and agreements given by the Publisher shall survive the termination for any reason of this agreement. 4.3 The Publisher will respond to any and all complaints or negative feedback regarding the advertisements in Senior Times and will relay to the Partner the circumstances of an response to any such complaint. 4.4 The Publisher will assume responsibility for sale to and service of all Senior Times advertisers and shall have the right to accept or refuse advertising copy, based on the advertising guidelines specified in paragraph 3.1. The Publisher will retain all advertising revenue. The Partner will not be responsible for any financial loss incurred by the Publisher related to the production and distribution of Senior Times. 4. 5. INDEMNIFICATION- 5.1 It is the sole responsibility of the Partner to obtain the copyright and trademark licenses necessary for publication of all editorial content of Senior Times . The Partner shall be responsible for the defense of any copyright or trademark infringement claim or suit, including the payment of all legal defense costs through one or more levels of appeal, arising out of the editorial content of Senior Times and shall be liable for the satisfaction of any judgement entered for a copyright or trademark violation. 5.2 The Publisher shall indemnify and hold harmless the Partner, its affiliates and its directors, officers, employees, agents, successors, assigns, licensees, and distributors against any and all claims or judgements (including the Publisher's payment of the Partner's attorney's fees through one or more levels of appeal incurred by the Partner) paid or incurred in connection with claims by any party which arise from use of materials originating with the Publisher. 5.3 The Partner shall indemnify and hold harmless the Publisher, its affiliates and its directors, officers, employees, agents, successors, assigns, licensees and distributors against any and all claims or judgements (including the Partner's payment of the Publisher's attorney's fees through one or more levels of appeal incurred by the Publisher) paid or incurred in connection with claims by any party which arise from use of materials originating with the Partner. 5.4 If any claim or action is instituted or threatened by a third party against a party to this Agreement for which t believes it has been indemnified pursuant to this Agreement, it shall promptly give notice thereof to the other party. 5.5 The Publisher shall not be liable for any loss or damage arising to the Partner, or any other party, by reason of non - publication, delay or interruption in publication due to circumstances beyond the control of the Publisher. The Publisher shall not be liable for incidental, consequential, punitive or lost - profit damages. 6. TERM — 6.1 This Agreement shall have an initial term of three years commencing on the Effective Date. 6.2 Upon acceptance of mutually agreed terms, this agreement may be renewed for successive one -year terms unless either party gives the other notice of termination at least six months prior to the expiration of the then- current term. 7. NOTICES — All notices required by this Agreement shall be in writing. Notices from the Partner to the Publisher shall be delivered or mailed to: KEM JOHNSON THE HERALD -SUN 2828 PICKETT ROAD DURHAM, NORTH CAROLINA 27705 Notices from the Publisher to the Partner shall be delivered or mailed to: JERRY PASSMORE ORANGE COUNTY DEPARTMENT ON AGING 8100TRYON ROAD,, 7.0al It 5. HILLSBOROUGH, NORTH CAROLINA 27278 Notices shall be deemed effective upon certified mailing or hand delivery. 8. WAIVERS — The failure of either party at any time to require performance of the other party of any provision hereof shall not in any way affect the full right to require such performance at any time thereafter, not shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself or a waiver of the right to enforce that provision with respect to any future breach. 9. ASSIGNMENT — The Partner shall not assign (voluntarily, by operation of law or otherwise) this Agreement or any right, interest or benefit under this Agreement, without prior written consent of the Publisher. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns. 10. SEVERABILITY — If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby. 11. GOVERNING LAW; JURISDICTION — This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of North Carolina without regard to its conflicts or choice of law. In the event of any dispute arising hereunder, the parties agree to submit to the jurisdiction and venue of the appropriate state or federal courts located in Durham County, North Carolina. FOR ORANGE COUNTY, THE PARTNER Margaret Brown Chair, Orange County Board of Commissioners FOR THE DURHAM HERALD COMPANY Date Eugene S. Bobbitt Date Director of Advertising