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10-114 Service Agreement, Mountain View Community Television for Management of Cupertino Public Access Television Programming SERVICE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND MOUNTAIN VIEW COMMUNITY TELEVISION FOR MANAGEMENT OF CUPERTINO PUBLIC ACCESS TELEVISION PROGRAMMING THIS AGREEMENT, dated July 1, 2010 is by and between the CITY OF CUPERTINO, a municipal corporation ( "CITY "), and MOUNTAIN VIEW COMMUNITY TELEVISION (dba KMVT), a non - profit corporation ( "CONTRACTOR "). WHEREAS, CITY is in need of specialized 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 agreement. 1. Services by CONTRACTOR CONTRACTOR shall provide services in accordance with Exhibit A, attached and incorporated by reference. The Parties agree tha the nature of the services to be provided by CONTRACTOR necessitate that the services be performed 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 1, 2010 through June 30, 2015, 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 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 — 2010 Agreement Page 1 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 any identified one -time capital expenses identified in Exhibit B within forty -five (45) days of its acceptance of this Agreement. All other costs as outlined 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 t:1is 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, actions, 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. 9. CITY Representative The Public 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. KMVT /CUP — 2010 Agreement Page 2 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 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 p repaid, or sent by commercial courier, addressed as follows: To CITY: Public & Environmental Affairs Director, 10300 Torre Ave, Cupertino CA 95014 To CONTRACTOR: Executive Director, KMVT, 1400 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 party 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 portion 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 should the CITY chose to terminate the contract, the CITY is obligated to pay the remaining balance for the Infonet TV Bulletin Board system(defined in Exhibit B of the October 8, 2004 Agreement) that KMVT owes on the system, up to $1,500 maximum. It is understood that the CITY shall then own the Infonet TV system in full and can take possesion of such system from KMVT. KMVT /CUP — 2010 Agreement Page 3 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 other 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 this 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 sha1 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 materials 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 executed this Agreement. CI F CU'ERTINO ( "CITY') )&J B City Man ger AP OVED AS TO F . I � — /� - KMVT City Attorney ( "CONTRACTOR ") President, Board of Directors KMVT /CUP — 2010 Agreement Page 4 EXHIBIT "A" CONTRACTOR understands CITY'S need to provide community 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 community 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, equipment, and services to the CITY. 1. Facility Usage for CITY - sponsored Programs Up to six (6) Cupertino /City- sponsored organizations' 30- minute programs ( "Cupertino Programs ") will be served under this agreement (see Exhibit B for detail). The six Cupertino Programs producers and crews associated with such programs shall be served by this agreement under the following conditions: A) Programs are produced by Cupertino residents and /or City - sponsored organizations B) Crew members are Cupertino residents or members of City - sponsored organizations C) All producers and crew members working; on said programs have been fully trained in CONTRACTOR's workshops, and will abide by the standard KMVT rules, regulations, general access fees as defined in the CONTRACTOR's Users' Guide and Access Fee schedule. Cupertino Programs producers and crews will receive the same production priorities as Mountain View residents. CONTRACTOR and CITY agree that the Cupertino Programs producers and crews will have unlimited use of KMVT production facilities for the following space and equipment: Studio Editing Dubbing Camcorder All equipment and studio times used by the Cupertino Programs organizations shall be booked according to CONTRACTOR's regulations and policies as outlined in the CONTRACTOR's Users' Guide. 2. Community Access for Cupertino Residents CONTRACTOR will provide community access to Cupertino residents for all standard facilities and equipment usage and services under the same terms and conditions as provided to Mountain View residents. As such, Cupertino residents, when not working on Cupertino Programs as defined above (e.g., on their own programs or a 7 community access program), will be charged personally the ' See Exhibit 13 for iioii- resident members of such organizations KMVT /CUP 2010 Agreement Exhibit A Page 1 of 2 (e.g., on their own programs or a 7th+ community access program), will be charged personally the standard KMVT community access and other usage fees as defined in the CONTRACTOR's Users' Guide and Access Fee schedule. 3. Cablecasting CONTRACTOR shall provide CITY cable television cablecast time for Cupertino community access television programming that is provided by Cupertino community access producers. CONTRACTOR shall play back said programming over the cable company provided Cupertino cable television community access channel. Cupertino producers shall comply with all playback guidelines as outlined in the CONTRACTOR's User's Guide. CONTRACTOR is providing CITY a separate signal for the Cupertino community access channel, allowing Cupertino video programming to be separate from other cities' programming. CONTRACTOR shall be responsible for schedulirg all Cupertino community access programming on the designated community access channel available to the CITY. Each Cupertino Programs outlined above shall receive three airings per week under this contract (see Exhibit B for detail). All other Cupertino producers requesting playback on the Cupertino community access channel shall be provided on a first -come, first - served non - discriminatory basis and shall not deny access to any community access producers from the City based on the content of the programming, consistent with all applicable laws. The amount of playback time provided for non - Cupertino Programs is subject to normal and standard scheduling availability. CONTRACTOR shall monitor the quality of the Cupertino community access channel output from its facility to ensure the best quality possible given the quality of the programming provided by the Cupertino producer. CONTRACTOR shall also cc ordinate with appropriate 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 minimize the disruption and interference with the signal quality for the dedicated community access channel. 4. Webcasting CONTRACTOR shall provide CITY webcasting space and services for Cupertino community access television programming that is provided by Cupertino community access producers. CONTRACTOR shall up -load and maintain said programming at http: //www.voutube.com /kmvt, its YouTube Channel. 5. Bulletin Board Services CONTRACTOR shall utilize an electronic bulletin board INFONET system and will display community messages on the Cupertino community access channel during non -video programming hours. 6. Media Cupertino Programs producers and crews shall pay for their own media to produce their programming. Media prices are outlined in the CONTRACTOR's Users' Guide. KMVT /CUP 2010 Agreement Exhibit A Page 2of2 EXHIBIT "B" COSTS and OBLIGATIONS 1. In consideration for the CONTRACTOR provided services annually, as described in EXHIBIT A, Facility Usage for CITY - sponsored Programs Community Access for Cupertino Residents Cablecasting Bulletin Board Services During the Term of this Agreement, CITY shall pay CONTRACTOR an annual sum of $50,640, payable in 12 equal monthly payments of $4,220, with these amounts subject to the potential yearly changes defined in Section 4 below. 2. In addition, during the Term of this Agreement, fcr every non - resident producer or crew member of the "Better Part" Cupertino Program (as per EXHIBIT A), CITY shall pay CONTRACTOR the difference between the CONTRACTOR's resident and non - resident yearly Access Fees (the "Access Fee Differential "), as defined in CONTRACTOR's Users' Guide and Access Fee schedule, up to a yearly limit of $5,681 (the "Differential Amount "), with this amount subject to the potential yearly changes defined in Section 4 below. Such "Better Part" producers and crew members shall have the same rights and privileges as all other KMVT access members. 3. CONTRACTOR shall submit a quarterly list of all Access Fee Differential "Better Part" users to the CITY, and the foregoing Access Fee Differential amounts shall be paid the CONTRACTOR by the CITY on a quarterly basis as such fees are accrued. 4. If, during the Term of this Agreement, the Access :Fee Differential amount in any given month is less then 1/12th of the yearly Differential Amount, the CITY may utilize such amounts for retaining CONTRACTOR services and equipment for special events at CONTRACTORs then published rates for cities, up to the total Differential Amount. 5. By the end of each year of this Agreement, the CITY will pay CONTRACTOR the full Differential Amount, whether it is utilized or not by one of the two forgoing methods. In case of non - utilization, CONTRACTOR shall carry forward the corresponding services /equipment credit in favor of the CITY during the Term of this Agreement. 6. Starting at the beginning of the second year of this Agreement, and annually thereafter during the remainder of the Term of this Agreement, the above prices will change by the percentage amount of the Consumer Price Index for the San Francisco - Oakland -San Jose Area for the previous year, as published by the United States Bureau of Labor Statistics. 7. CONTRACTOR shall keep a running total of Cupertino Programs and other Cupertino residents daily usage statistics and shall provide CITY annual summaries of such statistics. KMVT /CUP 2010 Agreement Exhibit B Page 1 of 1 EXHIBIT "C" INSURANCE REOUIREMENTS FOR CONTRACTOR CONTRACTOR shall procure and maintain for tie duration 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 maintain 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 projecl /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: $1,000,000 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 liability and 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 pe rformed 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, e mployees, 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, is 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:V11, 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. KMVT /CUP 2010 Agreement Exhibit C Page 1 of 1 FIRST AMENDMENT TO EXHIBIT B OF THE SERVICE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND MOUNTAIN VIEW COMMUNITY TELEVISION FOR MANAGEMENT OF CUPERTINO PUBLIC ACCESS TELEVISION PROGRAMMING This First Amendment to Exhibit B of the Service Agreement between the City of Cupertino and Mountain View for Management of Cupertino Public Access Television Programming, for reference dated /1 7/ 2010, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City ") and MOUTNTAIN VIEW COMMUNITY TELEVISION (dba KMVT), a non- profit corporation (Contractor) is made with reference to the following: RECITALS: A. On II 7,' , 2010, a service agreement was entered into by and between City and Contractor (hereinafter "Agreement "). B. City and Contractor desire to modify Exhibit B of the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows: 1. The show "On the Move" (formerly "Able Cable Productions ") shall be one of the Cupertino Programs" (as it has been since 2003). 2. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. CONTRACTOR CITY OF CUPERTINO A Municipal Corporation President, Board of Directors City Manager 1-e-7 APPROVF�D AS TO FORM: By �..� CJ` City Attorney • " ® DATEIMiv1lDD/YYYY) A`°RO CERTIFICATE OF LIABILITY INSURANCE 11-28-2011 THIS CERTIFICATEIS 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 ADDITIONALINSURED,the policy(ies)must be endorsed. If SUBROGATIONIS WAIVED,Subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: HUB INTERNATIONAL INS SVCS INC -'HONE FAX 150761 P: O - F: O - _A CA No,Extl: (A C,No): ADDRESS: PO BOX 33015 5RODUCER – — SAN ANTONIO TX 78265 CUSTOMER ID#: INSURER(S)AFFORDING COVERAGE NAIC S INSURED NSURER A: Hartford Casualty Ins Co MOUNTAIN VIEW COMMUNITY TELEVISION INC. NSURER B: Hartford Underwriters Ins Co 1400 TERRA BELLA AVE. STE M NSURER C: __- MOUNTAIN VIEW CA 94 043 NSURER D: L NSURER E : II NSURER F COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY Cf)NTRACT OR OTHER DOCUMFNT WITH RFSPFCT To dI)-I!CH TH R 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 MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR. 'ADDLSUBR , POLICY EFF POLICY EXP LIMITS LTR TYPE OF INSURANCE 'INSR WVD POLICY NUMBER (MM/DD/YYYY) )MM/DD/YYYYI GENERAL LIABILITY ' EACH OCCURRENCE $ 1, 000, 000 I I COMMERCIAL GENERAL LIABILITY III I DAMAGE TO Roc I occurrence) $ 1 0 0 0 0 0 0 I �i � i, PREMISES (Ea occurrence) r r j !, CLAIMS-MADE I X I OCCUR MED EXP)Any one person) i S 10, 0 0 0 A i Xi General Liab X 57 SBA KW2271 02/01/2012! 02/01/20131, PERSONAL&ADM INJURY '', $ 1, 0 0 0, 000 i 11 j ! GENERAL AGGREGATE $ 2, 000, 000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP.OP AGG S 2 , 000, 000 POLICY ; I JECT I X,I LOC AUTOMOBILE LIABILITY ! COMBINED SINGLE LIMIT L—_ I (Ea accident) I I ANY AUTO ----_---- �; BODILY INJURY(Per person) _$ ALL OWNED AUTOS BODILY INJURY Per xcidenti I I_� I 1 ail SCHEDULED AUTOS I PROPERTY DAMAGE 1 I HIRED AUTOS (Per accident) I i NON-OWNED AUTOS I — �X UMBRELLA LIAB X I OCCUR EACH OCCURRENCE S1, 000, 000 EXCESS LIAB j AGGREGATE $ 1, 0 0 0, 0 0 0 A I CLAIMS-MADE DEDUCTIBLE 57 SBA KW2271 02/01/20121 02/01/20131 S X j RETENTION $ 10, 0 0 0 I �� $ _ WORKERS COMPENSATION I WC STATU-AND EMPLOYERS'LIABILITY Y/N X;TORY LIMITS' ER ^ ^^ agno ETORPARTNER.)EXECUT VE--- E.L.EACr-i,, r.■udv-I ' $ .+., 0 v 0, ::0 0 B1; OFFiCER%MEMBEREXCLUDED? I IIN/AI (Mandatory in NH) '157 WEC KP8587 08/14/2011'. 08/14/2012'0 E.L. DISEASE -EA EMPLOYEE' $ 1, 000, 000 I If yes,describe under ! ! DESCRIPTION OF OPERATIONS below I E.L.DISEASE-POLICY LIMIT $ 1, 000, 000 I DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(Attach ACORD 101,Additional Remarks Schedule,if more space is required) Those usual to the Insured' s Operations . Certificate holder is an Additional Insured - Designated Person or Organization, per the Business Liability Coverage Form SS0008 . CERTIFICATE HOLDER CANCELLATION City of Cupertino SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED Its Officials , Employees, Agents, BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE and Volunteers _ DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 10300 Torre Ave . AUTHORIZE R PRESENTATIVE Cupertino, CA 95014-3255 AUTHORIZE / 'e"1 "', 1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD HUB INTERNATIONAL INS SVCS INC PO BOX 33015 SAN ANTONIO TX, 78265 02024 City of Cupertino Its Officials, Employees, Agents, and Volunteers 10300 Torre Ave. Cupertino, CA 95014-3255 U) m N MOM wara MEM samemme i i MMM IMMN SIES wadi ACORD 25 (2009/09)