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03-098 Mtn. View Comm. TV Public Accessu3-e~t°o SERVICE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND MOUNTAIN VIEW COMMUNITY TELEVISION FOR MANAGEMENT OF CUPERTINO PUBLIC ACCESS TELEVISION PROGRAMMING THIS AGREEMENT, dated ~ O 1 y t ~'~_ , is by and between the CITY OF CUPERTINO, a municipal corporation ("CITY"), and MOUNTAIN VIEW COMMUNITY TELEVISION (dba KMVT), anon-profit corporation ("CONTRACTOR"). WHEREAS, CITY is in need of specialize~~ services in relation to the management of the CITY's Public Access Television Programming (Cupertino Community Television); and, WHEREAS, CONTRACTOR possesses the skill, expertise and facilities to provide the required services; NOW, THEREFORE, the Parties enter into this a;~reement. 1. Services by CONTRACTOR CONTRACTOR shall provide services in accordance with Exhibit A, attached and incorporated by reference. The Parties agree that the nature of the services to be provided by CONTRACTOR necessitate that the services be ~~erformed on CONTRACTOR's premises, located at 1400 Terra Bella Avenue, Suite M, Mountain View, California. CONTRACTOR therefore agrees to furnish space on its premises and use of its equipment, as well as provide for cablecast services, as set forth in Exhibit A. 2. Time for Performance The term of this Agreement shall be from July 8, 2003 through June 30, 2004, unless otherwise terminated. The Parties may join in a quarterly review of performance under the Agreement to consequently resolve any mutually identified issues of concern through good faith negotiation. 3. Duties of CITY CITY to designate a Liaison person with authority to coordinate the personnel and activities of Cupertino Community Television with CONTRACTOR. CITY agrees that Cupertino producers shall adhere to all CONTR~~CTOR's rules and regulations as set forth from time to time in CONTRACTOR's "User Guide". CITY further agrees that each Cupertino volunteer shall sign CONTRACTOR's "User Compliance Agreement" and each Cupertino producer shall sign CONTRACTOR's "Producer Compliance Agreement" prior to any participation in CONTRACTOR's services. KMVT/CUP Agreement July 7, 2003 Page 1 of 4 4. Compensation CITY agrees to pay CONTRACTOR at the rates and in the amounts specified in Exhibit B, attached and incorporated by reference. CITY agrees to pay the identified one-time playback equipment costs within forty-five (45) days of its acceptance of this Agreement. All fixed personnel related costs and ongoing variable costs as shown in Exhibit B will be billed to CITY on a monthly basis. 5. Compliance with Laws a. CONTRACTOR shall not discriminate against any employee or applicant for employment because of race, religion, creed, color, national origin, gender, age (persons 40 years or older), disability, or any other basis to the extent prohibited by federal, state or local law. All employees of CONTRACTOR shall be treated during employment without regard to their race, creed, color or national origin. b. CONTRACTOR shall comply with all federal, state and local laws, statutes, ordinances, rules and regulations and the orders and decrees of any courts or administrative bodies in any manner affecting the performance of the Agreement. 6. Independent Contractor CONTRACTOR is acting as an independent contractor in furnishing the services and facilities and performing the work required by this Agreement, and is not an agent, servant or employee of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONTRACTOR. CONTRACTOR is solely responsible for its obligations of required state and federal taxes. 7. Indemnity CONTRACTOR agrees to indemnify and hold harmless CITY, its officers and employees from any and all claims, demands, aci:ions, causes of action, losses, damages, liabilities, known or unknown, and all costs and expenses, including reasonable attorneys' fees in connection with any injury or damage to persons or property arising out of or in any way connected with any negligent act or omission of CONTRACTOR, its officers, employees, agents, contractor, subcontractors or any officer, agent or employee thereof in relation to CONTRACTOR's performance under this Agreement. 8. Insurance CONTRACTOR has and shall maintain, during the life of this Agreement, policies of insurance as specified in Exhibit C, attached and incorporated by reference. KMVT/CUP Agreement July 7, 2003 Page 2 of 4 9. CITY Representative The City's Public Information Information Officer, as the City Manager's authorized representative, shall represent CITY in all matters pertaining to the services to be rendered under this Agreement. All requirements of CITY pertaining to the services and facilities to be provided under this Agreement shall be coordinated through the CITY representative. 10. CONTRACTOR Representative The CONTRACTOR'S Executive Director (currently Doug Broomfield) shall represent CONTRACTOR in all matters pertaining to the services and facilities to be rendered under this Agreement. All requirements of CONTRACTOR pertaining to the services and facilities to be provided under this Agreement shall be coordinated through the CONTRACTOR representative. 11. Notices All notices required by this Agreement shall be in writing, and shall be personally delivered, sent by first class mail with postage prepaid, or sent by commercial courier, addressed as follows: To CITY: _Public Information Officer, 10300 Torre Ave, Cupertino CA 95014 To CONTRACTOR: Executive Director, KMVT, 1.400 Terra Bella Ave., Suite M Mountain View, CA 94043 Nothing in this provision shall be construed to prohibit communication by more expedient means, such as by telephone or facsimile transmission, to accomplish timely communication, However, to constitute effective notice, written confirmation of a telephone conversation or an original of a facsimile transmission must be sent by first class mail or commercial carrier, or hand delivered. Each part; may change its address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of three days after date of mailing. 12. Assignment Neither party shall assign or sublet any p~~rtion of this Agreement without the prior written consent of the other party. 13. Termination This Agreement can be terminated by either CITY or CONTRACTOR upon provision of thirty (30) days written notice. However, it is understood that the CITY is obligated to pay the entire sum of $2,500 for equipment costs as defined in Exhibit B. KMVT/CUP Agreement July 7, 2003 Page 3 of 4 14. Miscellaneous Time shall be of the essence in this Agreement. Failure on the part of either Party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or any otrier provision. This Agreement shall be governed and construed in accordance with the laws of the State of California. 15. Mediation All claims, disputes and controversies arising out of or in relation to the performance, interpretation, application or enforcement of thi~~ Agreement, including but not limited to breach thereof, shall be referred to formal mediation before, and as a condition precedent to, the initiation of any adjudicative action or proceeding, including arbitration. 16. Attorney's Fees In the event of any action or proceeding brought by either Party against the other under this Agreement, the prevailing Party shall be entitled to recover court costs and the fees of its attorneys in such action or proceeding (whether at the administrative, trial, or appellate level) in such amount as the administrative body or court may judge reasonable. 17. Entire Agreement, Amendment This writing constitutes the entire agreement between the Parties relating to the services and facilities to be provided or material~~ to be. furnished hereunder. No modification of this Agreement shall be effective unless and until such modification is evidenced by a writing signed by all Parties. IN WITNESS WHEREOF, the Parties have execui:ed this Agreement. CITY O CUP RTINO ("CITY") sy (~ la ~Y.r~3 City Manager ~ /~~ APPROVED AS TO FORM: ~ ` ~ 7 ~ ~~ °"~ ~~GL ;' KMVT City Attorney ("CONY CT R") n n n By of Directors KMVT/CUP Agreement July 7, 2003 Page 4 of 4 EXHIBIT "A" CONTRACTOR understands CTTY'S need to provide public access services for the community of Cupertino. In providing this service, CONTRACTOR acknowledges that it has a current commitment to the City of Mountain View to provide public access services for the Mountain View community and CONTRACTOR will ensure that this agreement with CITY will in no way affect the quality or level of service that CONTRACTOR provides Mountain View. The following outlines the conditions on which the CONTRACTOR will provide space and equipment to the CITY. 1. Produeers/Volunteers Served The following Cupertino programs/City-sponsored organizations will be served under this agreement: A) Cupertino Senior TV Productions B) Steel and Marsilio C) Indian Vegetarian Gourmet D) Able Cable Productions The programs and organizations identified and the producers and users associated with such programs, shall have the first right to the Servi'.ces as outlined in the agreement. Should the Facility Usage Allowances (as define~3 in item 2 of this exhibit) not be met, new programs or volunteers may be served by this agreement under the following conditions: A) Use by new programs and volunteers does not exceed Facility Usage Allowances. B) Programs are produced by Cupertino residents and/or City-sponsored organizations C) Volunteers are Cupertino residents or members of City-sponsored organizations D) All volunteers and crew members working on said programs have been fully trained in CONTRACTOR'S workshops Cupertino producers and users that are coverf~d under this contract will receive the same production priorities as Mountain View residents. 2. Facility Usage Allowance CONTRACTOR and CITY agree that the maximum facility capacities provided Cupertino producers per month under this agreement will be as follows: Equipment Hours-Days/month Yearly Total Studio* 15 Hours 180 Editing* 24 Hours 288 Dubbing 10 Hours 120 Camcorder 4 days 48 * CITY shall pay for studio and editing hours whether hours are used or not. This guarantees the CITY that hours will be available for Cupertino use each month. Dubbing and Camcorder will be billed as used only. KMVT/CUP Aereement Exhibit A Cupertino producers will be limited to the above equipment usage guarantees. The initial programs and producers identified above will have first priority to use the equipment. Each program will be allocated 2 hours per month for studio producttion. However, the Cupertino Senior TV Production group will be allocated 2.5 hours for studio production every Thursday morning of the week except the first Thursday of each month. CITY shall pay for 5 hours a month of studio time for the Cupertino Senior TV Production group. CONTRACTOR shall cover the monthly difference. All studio times will be booked for 4-month sessions. Any times after the 4-month booking that is available under the 14 hours can be allocated on a first-come first serve basis to any Cupertino producer (current or new). No additional hours will be allocated beyond the 14 hours unless the Cupertino producer books the studio within 473 hours of the time they plan to use it. In this case, if the studio is available, the Cupertino producer will be charged personally the standard public access rates as defined in the CONTRACTOR'S Users' Guide and usage will be on a second priority level. Edit time will limited to the 24 hours per month as identified above. However, If Cupertino users want to use more edit time than 24 hours per month, they may do so but will be charged personally at the standard access rates as defined in the CONTRACTOR'S Users' Guide and usage will be on a second priority level. Dubbing time and Camcorder checkouts will he limited to the above guarantee. However, if Cupertino users want to use more dubbing time or camcorder check-outs than guaranteed, they may do so but they will charged personally at the standard access rates as defined in the CONTRACTOR'S Users' Guide and usage will be on a second priority level. 3. Facility Equipment Availability CONTRACTOR'S current equipment availability is spread throughout the week. Cupertino producers will work with CONTRACTOR'S Community Access Director to fill the available times. Some Mountain View and Los Altos producers may be willing to swap dates with Cupertino producers if a conflict arises, however, this is not guaranteed. 4. Cupertino Producer/Volunteer Special Training CONTRACTOR shall provide training re-orientation workshops to all current Cupertino producers and volunteers. Producers and volunteers who have already been trained in a specific discipline at Cupertino and who support one of the three programs identified in section 1 of this exhibit, can participate in a re-orientation workshop for the same discipline at CONTRACTOR'S facility. Such workshops shall take place during the period of July 15 -August 15, 2003, with specific training dates to be determined by CONTRACTOR personnel. CONTRACTOR shall cover cost of this special one-time training. Producers and volwnteers who do not meet the above criteria, or those that do meet this criteria but wish to take a workshop after August 15, 2003, may still sign up for a CONTRACTOR standard workshop offered t~~ the public at large, but can not participate in this special training, and must pay for the workshop personally. The workshop rates are identified in the CONTRACTOR Users' Guide. The special training will be offered from July 'l5, 2003 to August 15, 2003. The following workshops will be offered (Note, this schedule is tentative and subject to change based actual KMVT/CUP Agreement Exhibit A numbers needing to be trained): Workshoy # Workshops Offered Max. Students/Class Studio Reorientation 2 15 CG Reorientation Editing Reorientation Camcorder Reorientation 2 6 2 d 2 d # Students Total 30 12 12 12 CONTRACTOR shall notify all producers and volunteers of the workshop schedule for this special training no later than July 11, 2003. Sign-ups for these workshops shall be on afirst-come first-serve basis. Once trained, Cupertino producers and volunteers can begin booking the CONTRACTOR facility to produce their programs. CONTRACTOR anticipates that most Cupertino programs will begin producing in August, 2003. 5. Cablecasting CONTRACTOR shall provide CITY cable television cablecast time for Cupertino public access television programming that is provided by Cupertino public access producers. CONTRACTOR shall play back said programming over the cable company provided Cupertino cable television public access channel. Cupertino producers shall comply with all playback guideline as outlined in the CONTRACTOR'S User's Guide. CONTRACTOR shall provide CITY a separate signal for the Cupertino public access channel, allowing Cupertino video programming to be separate from Los Altos programming, if the CITY so chooses (except the community electronic bulletin board, which shall still remain combined for this interim one-year contract). Other than the equipment outlined in section 6 of this agreement, CONTRACTOR shall be responsible for all playback and interface equipment necessary to fulfill the requirements of this agreement. CONTRACTOR shall be responsible for scheduling all Cupertino public access programming on the designated public access channel available to the CITY. Each program outlined above shall receive three airings per week under this contract (Sef~ Exhibit B for detail). Any other Cupertino producers requesting playback on the Cupertino public access channel shall be provided on a first-come, first- served non-discriminatory basis and shall not deny access to any public access producers from the City based on the content of the programming;, consistent with all applicable laws. The amount of playback time provided is subject to the limits of this agreement as defined in Exhibit B. CONTRACTOR shall monitor the quality of the Cupertino public access channel to ensure the best quality possible given the quality of the programming provided by the Cupertino producer. CONTRACTOR shall also coordinate with ap~~ropriate cable company representatives to ensure that the connection of the cable company's system to the CONTRACTOR's playback facility is sufficient and properly functioning so as to minimise the disruption and interference with the signal quality for the dedicated public access channel. CONTRACTOR and CITY agree that playback of Cupertino programming shall begin from CONTRACTOR's facility no sooner than July 21, 2003 and no later than August 4, 2003. The parties further recognize that CONTRACTOR'S monitoring of the Cupertino cable signal at KMV'T/CUP Aereement Exhibit A CONTRACTOR's facility may not begin until September 1, 2003 as monitoring equipment needs to be ordered and installed upon commencemenit of this contract and 4 - 6 week order leads times are sometimes needed on such equipment. CONTRACTOR and CITY understand that the City of Mountain View has agreed to allow CONTRACTOR temporary access to the City of Mountain Vies fiber-optic Institutional Network (INET) for the purposes of serving the CTTY's playback needs, and that the use of the INET is conditioned upon the good faith understanding that the CITY and CONTRACTOR will work with the City of Mountain View to develop along-term agreement for use of the INST. 6. Additional Equipment Purchases In order to meet the playback needs of Cupertino, CONTRACTOR has identified the following equipment which will need to be purchased ai: a total cost to the CITY of $2,500. This equipment will provide CONTRACTOR the ability to cablecast Cupertino Community TV's channel from CONTRACTOR'S Mountain View facility as well as monitor the cable signal of that channel. A) Fiber-optic equipment located at cable compan~s Santa Clara cable head-end facility CITY understands that entire cost of CTTY's share of the equipment is $5,000 and that CITY agrees to compensate CONTRACTOR for balance of $2, 500 for equipment should CITY and CONTRACTOR enter into an agreement that extends beyond June 30, 2004. 7. Bulletin Board Services CONTRACTOR shall also provide a basic electronic bulletin board computer that will display community messages on the Cupertino public access channel during non-video programming hours. CONTRACTOR shall use an existing T,~rga-based system that CONTRACTOR owns for the bulletin board. All content for the bulletin board shall be provided by the CITY and community non- profit organizations. CONTRACTOR shall manage the bulletin board system and shall create the bulletin board pages and bill the CITY for such work as outlined in Exhibit B. 8. Media It is understood that Cupertino producers and users currently pay for their own media to produce their programming and this arrangement will continue under this agreement. Media prices are outlined in the CONTRACTOR'S Users' Guide. KMV'T/CUP Aereement Exhibit A EXHIBI'C "B" CONTRACT COSTS Cost Personnel $7,250 Facility Usage i ent E Charge Monthly Use Cupertino Yearly Use Total Cost pm qu Studio (Per Hour)* $150 10 Hours^ 120 $18,000 Editing (Per Hour)* $20 24 Hours 288 $5,760 Camcorder (Per Day) $75 4 Days 48 $3,600 Dubbing (Per Hour) $10 10 Hours 120 1 200 Total Facility Usage $28,560 * Studio and editing hours are fixed amounts to provide Cupertnio with guarantee that time will be available. CITY shall pay for these fixed amounts regardless of ;actual use to guarantee that time is available. Camcorder and dubbing shall be billed on a actual usage basis. ^ Cupertino is guaranteed 14 hours of studio time. However, five hours will be covered by CONTRACTOR for the Cupertino Senior TV Production group programming which will produce approximately ten hours per month. CONTRACTOR supports the idea of contributing to senior discounts for community services and will partially subsidize the program. Furthermore, "Able Cable Productions" will use two hours of studio time per -month but the CITY will only cover one hour per month under this contract as "Able+ Cable Productions" was added to this contract after the CITY already approved a maximum contract cost. The CITY will revisit this issue at contract renewal time. Equipment Headend Playback Equipment** $2,500 ** Actual cost of equipment is approximately $5,000 for CITY'; share. CITY agrees to pay 50% of cost under this agreement ($2,500) and the remaining balance (of up to an additional $2,500) if CITY and and CONTRACTOR agree to extend this agreement beyond June 30, 2004. Cablecast pro rg_a _s Len Times/Wk Cost per Hour Total Cost Cupertino Senior TV Production Group 30:00:00 3X $15 $22.50 Able Cable Productions 30:00:00 3X $15 $22.50 Steel and Marsilio 30:00:00 3X $15 $22.50 Indian Vegetarian Gourmet 30:00:00 3X 15 22.50 Total Per Week 9 $90.00 x 52 Weeks Total Yearly Playback $4,680 Bulletin Board Manage^^ $1,800 One-time Training $210 ^^ Assumes ramp-up time to input current pages and an av erage: of two new community pages per week. TOTAL CONTRACT COSTS $45,000 KMVT/CUP- Exhibit B 1 of 1 EXHIB:[T "C" INSURANCE REQUIREMENTS FOR CONTRACTOR CONTRACTOR shall procure and maintain for the <luration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work by the Contractor, his agents, representatives, or employees. Minimum Scope and Limits of Insurance Contractor shall ma retain limits no less than: 1 . Commercial General Liability $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage 3. Workers' Compensation and Employer's Liability: $] ,000,000 per accident for bodily injury or disease Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared and approved by the City of Cupertino. The Contractor shall guarantee payment of any losses and related investigations, claim administration and defense expenses Within the deductible or self-insured retention. Other Insurance Provisions The general liabilityand automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1. The City of Cupertino, its officials, employees, agents and volunteers are to be covered as additional insureds with respects to liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, occupied or used by the Contractor; or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City of Cupertino, its officers, employees, agents or volunteers. 2. For any claims related to this project, the CONTRACTOR's insurance shall be primary. Any insurance or self-insurance maintained by the City of Cupertino, its officers, officials, employees, agents and volunteers shall be excess of the CONTRACTOR's insurance and shall not contribute with it. Except with regards to CITY-owned equipment , in which case CITY self-insurance shall take precedence. 3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not effect coverage provided to the City of Cupertino, its officers, officials, employees, agents or volunteers. 4. The CONTRACTOR's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 5. Each insurance policy required by this clause shall bE~ endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified main, return receipt requested, has been given to the City of Cupertino. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City of Cupertino. Verification of Coverage Contractor shall furnish the City of Cupertino with an original Certificate of Insurance effecting the coverage required. The certificates are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates are to be received and approved by the City of Cupertino prior to commencement of work. KMV'T/CUP Exhibit C July 7, 2003 Page 1 of 1