EXHIBIT 10.4
PRODUCTION AGREEMENT BETWEEN KBDI
AND XXXXXX XXXXX,
THE METROPOLITAN DENVER BLACK UNITED FUND
This Production Agreement (Agreement") is entered into by and KBDI (Producer"),
doing business at 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000: Xxxxxx Xxxxx
("Author/Host") of L.L. Xxxxx & Associates, Inc. doing business at 0000 X.X.
Xxxxx Xxx, Xxxxxx, Xxxxxxxxxx 00000; the Metropolitan Denver Black United Fund,
doing business at 0000 Xxxx, Xxxxxx, Xxxxxxxx. This agreement is made effective
this 30th. Day of September, 1998. No alterations, deletions or additions can be
made to this Agreement without the written consent of all three parties. This
Agreement pertains solely to the production, videotaping, promotion, packaging
and distribution of the program "Never Give Up" (working title, subject to
change prior to broadcast, heretofore referred to as program"), and supersedes
all previous agreements regarding the program, both oral and written. This
agreement has no binding authority over general authored material provided by
Xxxxxx Xxxxx.
WHEREAS, KBDI, wishes to provide production facilities and personnel for the
purpose of producing the Program and
WHEREAS, Xxxxxx Xxxxx wishes to furnish self authored material from which to
base the program, and to function as on-camera Host for the Program; and
WHEREAS, the Metropolitan Denver Black United fund wishes to provide promotions
and marketing assistance with the distribution of the Program within public
television via letters of support and other means currently available to them;
and,
WHEREAS, KBDI, Xxxxxx Xxxxx, and the Metropolitan Denver Black United Fund
mutually agree that it is in their best interest to enter into this agreement
under the following terms and conditions, all parties agree as follows:
A. COPYRIGHT OWNERSHIP
Ownership of copyright for the program shall be granted and held equally by
KBDI-TV, Xxxxxx Xxxxx, and the Metropolitan Denver Black United Fund. Should any
party cease doing business as specified in this agreement, all copyright and
ownership provisions shall revert to the remaining parties
B. DUTIES, RESPONSIBILITIES AND ASSIGNMENTS OF KBDI
(1) KBDI shall be the presenting station for the program, and shall retain
unrestricted, non- exclusive broadcasting rights for the term of this
agreement. KBDI shall have non- excusive rights to distribute the
Program (reference section F of this agreement).
(2) KDBI shall act as Executive Producer for the program, and shall assign
one staff producer as an authorized agent for KDBI. As Executive
Producer, KDBI is solely responsible for obtaining all necessary legal
documentation required by law, FCC regulations and PBS guidelines
pertaining to releases and contractual agreements for the production
of the program.
(3) Responsibilities for the KDBI staff Producer shall include, but not
necessarily be limited to, assuring all technical and PBS standards
for video production, broadcasting and distribution; retaining
editorial (but not content) control of the Program; coordinating all
equipment and facilities necessary for the production process;
coordinating all promotional efforts pertaining to the Program and all
distribution efforts pertaining to the Program. As producer KBDI will
be responsible for the ensuring that all appropriate credits and
acknowledgements are included in the Program as well as any other
agreed to material, and that all underwriting acknowledgements are
received, created broadcast and distribution and accordance with KBDI
and FCC and guidelines.
(4) KBDI shall serve as fiscal agent for the Program, and shall be
responsible for all accounting and fiscal management for the Program
as outlined by accounting regulations for non-profit and 501C3
organizations. Disbursement of funds shall be made upon the request of
Producer, and approval of the Director of Production, in accordance
with Program budget. KBDI shall remit all payments due within 30 days
receipt of invoice.
(5) KBDI shall provide the administrative and management services of the
Director of Production, who shall be responsible for coordinating the
efforts of the KBDI staff producer, and the fiscal management of the
Program.
(6) KBDI shall be responsible for coordinating all broadcast and
non-broadcast distribution of the Program, and management of all funds
received through all distribution of the Program. KBDI shall be
responsible for upholding all agreements as specified in all
distribution contracts.
C. DUTIES AND RESPONSIBILITIES OF XXXXXX XXXXX
(1) Xxxxxx Xxxxx agrees to script and edit all material to be presented in
the Program in collaboration with KBDI and its assigns. Xxxxxx Xxxxx
agrees that KBDI shall retain editorial control over inclusion of all
content of the Program for both broadcast and distribution.
(2) Xxxxxx Xxxxx shall host the Program in a manner consistent with KBSI
broadcast standards, and shall complete all on-camera duties as
assigned by KBDI and its assigns.
(3) Xxxxxx Xxxxx shall remain the sole copyright owner of all scripted
material for inclusion in the program. Although KBDI and the
Metropolitan Denver Black United Fund shall share equally in the
copyright and ownership of the Program in its' entirety, neither KBDI
nor the Metropolitan Denver Black United Fund shall have ownership or
copyright to the scripted material in the program as an isolated
product. Xxxxxx Xxxxx warrants that he is the author of all scripted
material, based on his true life story, that will be included in the
Program, and indemnifies KBDI and the Metropolitan Denver Black United
Fund of any dispute arising from authorship of written material, or
facts included therein.
D. DUTIES AND RESPONSIBILITIES OF THE METROPOLITAN DENVER BLACK UNITED FUND
(1) The Metropolitan Denver Black United Fund agrees to assist KBDI in
obtaining potential studio audience participants. All final decisions
regarding the inclusion of suggested participants shall remain at the
sole discretion of KBDI.
(2) The Metropolitan Denver Black United Fund agrees to provide support by
any means deemed mutually appropriate, with the marketing and
distribution efforts for the program within the public television
system.
E. PRODUCTION FUNDING
(1) Xxxxxx Xxxxx is responsible for payment to KBDI for specific
production costs as outlined in the attached budget ("Budget").
In-kind contributions of all three parties are outlined in the Budget.
(2) Xxxxxx Xxxxx shall remit a deposit to KBDI on the above referenced
production costs for the Program of 50% (3,000.00) no later than
August 15, 1998. The balance of the production costs shall be due on
or before the date of studio videotaping (to be mutually determined by
all three parties at a later date, but shall be completed no later
than November 6, 1998).
(3) Should additional production funds become available prior to initial
broadcast, all in-kind services by all three parties shall be
reimbursed pro rata.
F. DISTRIBUTION AND LICENSING
KBDI shall be solely responsible for establishing and managing all non-broadcast
distribution and uplink contracts agreements for the Program, but no contract
and/or agreement shall be made without the signatures of all three parties. KBDI
shall be responsible for all broadcast distribution contracts and agreements,
and shall be responsible for managing all records relating to broadcast
distribution. KBDI shall be responsible for fiscal management and accounting for
all distribution net revenue, and KBDI shall be responsible for disbursement of
all distribution net revenue pro rata to the three parties engaged in this
Agreement, as established in the Budget.
KBDI, Xxxxxx Xxxxx and the Metropolitan Denver Black United Fund shall work
collaboratively and in good faith to increase the marketing and promotion of
this Program to other public television stations, and to other distribution
organizations deemed mutually appropriate.
Licensing agreements for the purpose of all distribution of the Program will be
created, negotiated and managed by KBDI, under the supervision of the Director
of Production, and will be the sole responsibility and ownership of KBDI.
G. DISBURSEMENT OF NET REVENUE
(1) Net revenue from the distribution of the Program shall b disbursed
equally between KBDI, Xxxxxx Xxxxx, and the Metropolitan Denver Black
United Fund. Net revenue shall be determined and accounted quarterly
by KBDI after a pro rata disbursement of in-kind donations are made
and after all costs of distributing and Program are paid. KBDI-TV
shall provide the aforementioned disbursement to Xxxxxx Xxxxx and to
the Metropolitan Denver Black United Fund on a quarterly basis.
H. PLEDGE DRIVES
(1) KBDI has the right to incorporate the program into all general station
fund raising efforts, which includes but is not necessarily limited to
pledge Drives. KBDI has the right to offer the program to other PBS
affiliates for inclusion in their Pledge Drives. All products
associated with any program broadcast during these fund raising
efforts are provided gratis by the PBS stations as acknowledgment
gifts to viewers that elect to become members of the PBS station. Any
funds obtained by the PBS stations for membership are established as
contributions to the station as a whole, and are not subject to any
disbursement or distribution provisions described in this Agreement.
(2) KBDI is free of restriction to duplicate the Program onto tape, and to
distribute copies of said tape to any and all other public television
stations for the purposes described in Section H1 of this Agreement.
KBDI is solely responsible for all costs incurred pertaining to the
provisions in Section H1 of this Agreement.
I.PROPRIETARY AND CONFIDENTIAL INFORMATION
KBDI, Xxxxxx Xxxxx, and the Metropolitan Denver Black United Fund acknowledge
that certain copyrights or other intellectual property rights may arise form
this Agreement, or relate to, or result from this Program. All parties agree to
uphold any such copyright and right during the production, broadcast and
distribution of the Program. All parties agree not to circumvent, attempt to
circumvent, or permit any outside party to circumvent any copyright or rights
held by any participant of the Program.
J. TERM AND TERMINATION
(1) The term of this Agreement shall be for fifteen (15) years from the
effective date of this Agreement set forth in the Preamble to the
Agreement, and shall automatically renew itself on the anniversary of
the effective date of this Agreement unless either arty notifies the
other in writing of its intention to terminate the Agreement.
(2) Should Xxxxxx Xxxxx fail to provide financial support in the amount of
$6,000.00, as outlined in the Budget, all restrictions,
responsibilities and ownership, including copyright of the Program,
shall revert to KBDI-TV.
(3) Should KBDI dissolve itself from PBS and all broadcasting in any form,
all rights, copyrights, and ownership shall revert jointly to Xxxxxx
Xxxxx and to the Metropolitan Denver Black United Fund, and/or their
estates.
K. DISBUTES
KBDI, Xxxxxx Xxxxx, and the Metropolitan Denver Black United Fund agree to
operate in good faith in all aspects of the production, broadcast and
distribution of the Program. Should there exist any error, confusion,
disagreement or copyright violation, both parties agree to resolve the matter as
follows:
(1) To bring the matter to the attention of the appropriate party, in
writing, within a reasonable time after the dispute arises.
(2) To allow a reasonable time from receipt of the notice of dispute
to respond to the matter or otherwise resolve the dispute.
(3) In the event that a dispute cannot be resolved between any of the
three parties as outlined in paragraph 1, KBDI-TV, Xxxxxx Xxxxx,
and the Metropolitan Denver Black United Fund agree that the
dispute will be resolved in accordance with the Rules of the
American Arbitration Association, within Denver County District
Court.
L. FORCE MAJEURE
Neither KBDI, Xxxxxx Xxxxx, or the Metropolitan Denver Black United Fund shall
be liable in any way for failures, delays in performance, lost or damages
materials (including but not limited to videotape) due to any force majeure
conditions including fire, embargo, explosion, power black out, earthquake,
flood, war, mechanical accident, act of God or public enemy. All parties may
mutually agree to either terminate this Agreement and all provisions, or to
extend the time and deadlines to a mutually satisfactory date. All such changes
and addendums shall require the written approval of all parties.
GENERAL
The parties hereto agree that this Agreement does not create a partnership, or
joint venture and neither party may bind or obligate the other with regard to
additional parties. All parties agree that each party is an independent party
entitled to make its services and facilities available to the general public,
with its own regular place of business.
KBDI and its assigns, Xxxxxx Xxxxx, and the Metropolitan Denver Black United
Fund hereby warrant that each has the full legal right to enter into this
Agreement.
IN WITNESS WHEREOF, both parties have executed this Agreement as of the and year
as written in the Preamble of this Agreement.
By:/s/ Xxx Xxxxxxx
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Xxx Xxxxxxx/Xxx Xxxxxxx Date
KBDI-TV
By:/s/ Xxxxxx Xxxxx 9-30-98
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Xxxxxx Xxxxx Date
L.L. Xxxxx & Associates, Inc.
By:/s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx Date
The Metropolitan Denver Black United Fund
