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CC Resolution No. 9843RESOLUTION NO. 9843 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF AGREEMENT WITH DE ANZA COLLEGE, PUBLIC ACCESS CHANNELS AND STUDIO WHEREAS, there has been presented to the City Council a proposed agreement between the City of Cupertino and DeAnza College for the continued operation of public access channels and public access studio; WHEREAS, the terms, conditions and provisions of the loan documents have been reviewed and approved by the City Attorney and the City Manager. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby approves the aforementioned repayment schedule and authorizes the Mayor and the City Clerk to execute the agreement herein referred to on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 19th day of May, 1997 by the following vote: Vote Members of the City Council AYES: Burnett, NOES: None ABSENT: None ABSTAIN: None Chang, Dean, Sorensen, Bautista ATTE, ST: ~ity Clerk Resoluti/res9852.doc APPROVED: a~or, City of Cupertino AGREEMENT BETWEEN THE CITY OF CUPERTINO AND FOOTHILL DE ANZA COMMUNITY COLLEGE DISTRICT FOR THE OPERATION OF PUBLIC ACCESS CHANNELS AND A PUBLIC ACCESS STUDIO THIS AGREEMENT (hereinafter "Agreement") is made and entered into as of July 1, 1996 (hereinafter "Effective Date") between the City of Cupertino, a California municipal corporation (hereinafter "City") and the Foothill-De Anza Community College District (hereinafter "District"). City and District may be referred to herein individually as a "Party" or collectively as the "Parties." RECITALS This Agreement is made with reference to the following: 1. On October 14, 1980 the City entered into an agreement (hereinafter "Franchise Agreement") with TCI Cablevision of California, Inc., formerly United Artists Cable Television of Cupertino, (hereinafter "TCI") to construct, operate, and maintain a Community Antenna Television System (hereinafter "Cable System") in the City of Cupertino. 2. Said Franchise Agreement sets forth, by reference to other documents, certain obligations to be performed by TCI regarding public access channels, a public access studio, and local educational channels. 3. By means of a separate agreement entered into on April 6, 1981 and revised as of July 1, 1991 (hereinafter "Tripartite Agreement"), the City, District, and TCI agreed, among other C:hcOOTHILLLa. GRMENT.005 April 23, 1997 things, that District would assume these obligations and receive compensation therefor from City. 4. Said Franchise Agreement was renewed on December 8, 1995. Under the terms of said renewal, TCI is obligated to provide up to six (6) channels devoted to public, educational, and governmental uses (hereinafter "PEG Channels"). 5. The Tripartite Agreement between the City, District and TCI has expired and it is the intent of the City and District to enter into a new agreement for the continued operation of the PEG channels and a public access studio, a~d-~upg~ogequ~~z~g~al- -tzz~nc2c,~ dur:.ag-the-t cma-of t.~2 s NOW, THEREFORE, in consideration of the covenants and conditions herein contained, the Parties hereto further agree as follows: 1. TERM AND TERMINATION a). This Agreement shall commence as of the effective date and shall continue thereat~er for a period of three (3) years unless earlier terminated in accordance with this Agreement; provided, however, that this Agreement shall be automatically extended for successive periods of three (3) years unless a Party shall have provided written notice of non- renewal to the other Party no later than sixty (60) days prior to the end of the prior three (3) year period. b). This Agreement shall be subject to termination for a material breach hereof by either Party, which breach is not cured within thirty (30) days after written notice of such breach is provided by the Party claiming such breach. c). This Agreement may be terminated by City, upon sixty (60) days' advance written notice to District in the event that the Franchise Agreement shall terminate, and City shall have no C:~FOOTHILL~AGRMENT.005 A0ri123, 1997 2 reasonable means of providing television channel capacity. 2. SCOPE OF SERVICES a.) District shall provide one or more television studios at or near its De Anza College campus, together with all related facilities, equipment, operating and support personnel to operate those PEG Channels devoted exclusively to public access programming in accordance with guidelines and operating procedures adopted by District. District shall permit access to such studio, equipment and facilities by members of the public for the production, recording, and cablecast of non-commercial programming. b.) District shall maintain such studio in good condition and shall maintain, repair, and replace as necessary such equipment in accordance with the manufacturer's technical specifications and as may be required for proper operation. 3. OWNERSHIP OF EQUIPMENT AND FACILITIES Title to any public access studio provided by District and all equipment now in the possession of District (including, but not limited to, all cameras, recorders, monitors, character generators, microphones, projectors, consoles, electrical connections, props, furniture and furnishings used by District in the operation of its cable television studios and the production, recording, programming and broadcast of cable television programs) and title to any such equipment or facilities purchased during the term of this Agreement shall be and remain in the name of District unless otherwise agreed by the Parties. 4, COMPENSATION a.) As payment for services provided by District hereunder, City shall pay to District the sum of $83,000 per year beginning with fiscal year 1996-97, payable in equal quarterly C:~FOOTHILLL~.GRMENT.005 ~ni~ ~3, ~997 3 installments of $20,750. Said payments shall increase each fiscal year thereafter in accordance with any increase in the Bay Area All Urban Consumers Index, or any successor index, for the twelve month period ending the November 30 immediately preceding such fiscal year; Provided however, that in no event shall said increases be less than two percent (2%), nor more than four percent (4%) annually. b.) The compensation provided for herein shall be within the amounts set forth in budgets submitted by District to City in advance of each City fiscal year, in substantially the form of the District's operating budget for fiscal year 1996-97, a copy of which is attached hereto as Exhibit A and incorporated herein by reference. Notwithstanding the foregoing, City shall have no obligation to reimburse District for the salary and benefits relating to the position of Public Access Director for the District. Such costs shall be the sole responsibility of District. c.) Within thirty (30) days following the end of each fiscal quarter of City, District shall provide City with an invoice for the quarterly compensation hereunder, which invoice shall constitute a representation of District that the costs and expenses set forth therein have in fact been spent or incurred, $. INDEPENDENT CONTRACTOR All personnel engaged in the performance of the services set forth in this Agreement shall be employees of District and not agents or employees of City. District shall at all times act as an independent contractor with respect to the performance of this Agreement, with full rights to manage its employees subject to the requirements of the law. Neither District nor any employees or agents of District shall be considered an employee of City for any purpose. Nothing contained herein shall be construed to restrict or prohibit District from providing similar services to others. C:~FOOTHILLXAGRMENT.005 April 23, 1997 4 6. INDEMNIFICATION a). District agrees to indemnify and save harmless City, its officers, agents, and employees from and against any and all claims, demands, actions, suits and proceedings of any and every kind (including those brought because of an alleged violation of proprietary or copyright interests) and any and all judgements, expenses and costs resulting therefrom, including, but not limited to reasonable attorney's fees, arising out of the supervision, operation, maintenance, of the public access channels, local educational channels, and public access studio. b). City agrees to indemnify and save harmless District, its officers, agents and employees from and against any and all claims, demands, actions, suits, and proceedings of any kind (including those brought because of an alleged violation of proprietary or copyright interest) and any and all judgements, expenses, and costs resulting therefrom, including, but not limited to, reasonable attorney's fees, arising in any manner out of the City's use of any programming from the PEG Channels. 7. COMPLIANCE WITH LAWS Both Parties shall observe and comply with all valid laws, ordinances, statutes, orders and regulations now or hereafter made or issued respecting this Agreement by any federal, state, county, local or other government agency or entity having jurisdiction thereof. No provision contained in this Agreement shall constitute a waiver of or bar to the exercise of any governmental right or power of the City. C:XFOOTHILLXAORMENT.005 npri123, ~997 5 8. NOTICES Any notice, request, demand or other communication provided for hereunder shall be in writing and delivered in person or sent by First Class mail, facsimile or overnight delivery and addressed as follows: City: To District: City Manager City of Cupertino 10300 Torte Avenue Cupertino, CA 95014 Facsimile: (408) 777-3366 President De Anza College 21250 Stevens Creek Blvd. Cupertino, CA 95014 Facsimile: (408) 864-8603 Either Party may change its address for receipt of notices under this Agreement by notice given in the manner provided herein. 9. ATTQRNEY'S FEES If suit be brought by either Party under this Agreement, the prevailing Party shall be entitled to its costs of suit, including reasonable attorney's fees. 10. ASSIGNMENT No interest in this Agreement, nor any rights or obligations hereunder, may be assigned or delegated in whole or in part, by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld. 11. AMENDMENTS This Agreement represents the entire understanding and expression of the Parties' Agreement as to those matters contained herein, and supersedes all other oral or written C:~FOOTHILL~,ORMENT.005 April 23, 1997 6 agreements with respect to such matters. This Agreement may be modified only by a written amendment duly executed by the Parties. 12. NO THIRD PARTY BENEFICIARY This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties. No third party or parties shall have the claim or right of action under this Agreement for any cause whatsoever. 13. DUPLICATION OF PROGRAMMING Subject to any exclusive distribution rights agreement or copyright ownership, both Parties may, at their sole costs, duplicate, distribute, or otherwise utilize programming from public access, local education and institutional network channels. ///// ///// ///// ///// ///// ///// ///// ///// ///// ///// ///// ///// C:~FOOTHILL~a, GRMENT.005 April 23, 1997 7 The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives. It is the intent of the Parties that this Agreement shall become effective as of June 30, 1996. Approved as to Form: City of Cupertino City Attorney By: Mayor, City of Cupertino Attest: City Clerk Foothill-De Anza Community College District By: President, De Anza College C:~FOOTHILL~GRMENT.005 April 23, 1997 8 Exhibit A PUBLIC ACCESS BUDGET PROFESSIONAL SERVICES Access Director Benefits HALF TIME ENGINEER Benefits ACCESS ASSISTANT Benefits Salary and Benefits Total MATERIALS & SUPPLIES EQUIPMENT MAINTENANCE FIXED ASSETS (Maintenance and replacement) Cameras (Remote and Studio) Videotape Recorders Studio Equipment Editing Equipment TOTAL SALARY, SUPPLIES, EQUIPMENT less Access Director Salary & Benefits Net Contract Obligation (City of Cupertino) Rounded to 1996-97 $48,960 $16,157 $18,000 $5,940 $21,200 $1,802 $112,059 $10,200 $6,200 $0 $20,OOO $o $148,459 $65,117 $83,342 $83,00O MB 4/25/97