05-088, Mountain View community Television - KMTV
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SERVICE AGREEMENT BETWEEN THE CITY OF CUPERTINO '0 RIG I NAb
AND MOUNTAIN VIEW COMMUNITY TELEVISION
FOR MANAGEMENT OF CUPERTINO PUBLIC ACCESS TELEVISION PROGRAMMING
THIS AGREEMENT, dated August 8, 2005 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 that 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 I, 2005 through June 30, 2010, 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
CIlY 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.
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
KMVT / CUP - FY0506 Agreement
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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 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, 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 OfficerL 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.
KMVT / cUP - FY0506 Agreement
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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 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, 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.
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.
KMVT I cUP - FY0506 Agreement
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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 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 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.
CITY OF CjRTINO ("CITY")
BY~' ~~~-r
City Manager
B.~t~
~~
City Attorney
KMVT
("CONTRACTOR")
BY~&~/
President, Bo of Directors
KMVT I CUP - FYOS06 Agreement
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EXHIBIT II 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 organizations1
B) Crew members are Cupertino residents or members of City-sponsored organizations1
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. 1
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.
(MAKE SURE THIS SECTION TIES IN W / CITY PAID FEES FOR THIS)
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
J See Exhibit B for non-resident members of such organizations
KMVT/CUP FY0506 Agreement Exhibit A
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(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 shall provide CITY a separate signal for the Cupertino community access channel,
allowing Cupertino video programming to be separate from Los Altos programming, if the CITY so
chooses.
CONTRACTOR shall be responsible for scheduling 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 coordinate 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.
CONTRACTOR and CITY understand that the City of Mountain View has agreed to allow
CONTRACTOR temporary access to the City of Mountain View's fiber-optic Institutional Network
(INET) for the purposes of serving the CITY'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 a long-term agreement for use of the INET.
4. 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,
Should the CITY terminate its agreement with CONTRACTOR at any time but the
CITY has not fully reimbursed CONTRACTOR for the full cost of the Infonet TV
system purchased previously, the CITY shall payoff the remaining $1,500 balance
KMVT/CUP FY0506 Agreement Exhibit A
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owed to CONTRACTOR on the Infonet TV system, at which time the CITY will own
the Infonet TV system and can take possession of such system.
5. 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 FYOS06 Agreement Exhibit A
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EXHIBIT JIB"
COSTS and OBLIGATIONS
1. In consideration for the CONTRACTOR provided services, 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 surn of $45,000, payable
in 12 equal monthly payments of $3,750, with these amounts subject to the potential yearly changes
defined in Section 4 below.
2. In addition, during the Term of this Agreement, for 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 CONTRATOR's Users' Guide and Access Fee schedule, up to a yearly limit of
$5,000 (the "Differential Amount"), with this amount subject to the potential yearly changes defined in
Section 4 below.
This provision will not apply if a "Better Part" producer or crew member uses CONTRACTOR's
faculties or equipment for non-Better Part programs or projects. In this case, such users must personally
pay the foregoing KMVT Access Fees. In case a Better Part user decides to work on non-Better Part
programs after CITY has already paid their Access Fee Differential, CONTRACTOR will reimburse such
amount to the CITY.
The foregoing Access Fee Differential amounts shall be paid/reimbursed by each party on a monthly
basis as such fees are accrued.
3. 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.
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/equiprnent credit in favor of the CITY
during the Terrn of this Agreement.
4. Starting at the beginning of the second year of this Agreement, and annually thereafter during the
rernainder of the Term of this Agreernent, the above prices will change by the percentage arnount 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.
5. 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 FY0506 Agreement Exhibit B
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EXHIBIT "C"
INSURANCE REQUIREMENTS FOR CONTRACTOR
CONTRACTOR shall procure and maintain for the 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 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: $1,000,000 per accident for bodily injury or disease.
Deductib1es 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 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:Vll, 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 FYOS06 Agreement Exhibit C
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