04-132 Public Access-KMVT Programming on Cable Ch 15
SERVICE AGREEMENT BETWEEN THE CITY OF CUPERTINO
AND MOUNTAIN VIEW COMMUNITY TELEVISION
FOR MANAGEMENT OF CUPERTINO PUBLIC ACCESS TELEVISION PROGRAMMING
THIS AGREEMENT, dated October 8, 2004 , 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 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.
Services by CONTRACTOR
CONTRACTOR shall provide services vi 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 pn its premises and ruse 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, 2004 through June 30, 2005, 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/('TTP _ FYTI.S AOTPPmPnt
4. Compensation
CITY agrees to pay CONTRACTOR at dle rates and in the amounts specified in Exhibit
B, attached and incorporated by reference. CIT`~ 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 tilled 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
yeazs 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 :>hall be interpreted or construed as creating or
establishing the relationship of employes 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 offices°, 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 Ciity Manager's authorized representative, shall
represent CITY in all matters pertaining to the services to be rendered under this Agreement.
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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 CONTRA(V'TOR 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, l<1VIV'I', 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 facsvnile 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. Assi ent
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) that KMVT owes on the system, up to $6,500
maximum. It is understood that the CITY shall then own the Infonet TV system in full and can
take possesion of such system from KNiVT.
KMVT/C'ITP_ FY(l.S Aorcwmant
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 shalt not be construed as a waiver of the right to
compel enforcement of such provision or arty 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 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~eonstitutes the entire agreement between the Parties relating to the
services and facilities to be provided or materiels 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 OF UP TINO (" ITY")
By l~. ~(,
City M ager
APPROVED AS TO FORM:
City Attorney
KMVT
("CONTRACTOR")
By ~ ~
ent, o _Directors
KMVT/C'TTP _ T'Y(T5 Aorr~nmc+nt
EXHIBIT "A„
CONTRACTOR understands CTTY'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 and equipment to the
CITY.
1. Producers/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 Production
The programs and organizations identified and tke producers and users associated with such programs,
shall have the first right to the Services as outlined in the agreement.
Should the Facility Usage Allowances (as defined un item 2 of this exhibit) not be met, new programs or
volunteers may be served by this agreement under the following conditions:
«. • w •
A) Use by new programs and volunteers does not exceed Facility Usage Allowances.
B) Programs are produced by Cupertino re<~idents and/or City-sponsored organizations
C) Volunteers are Cupertino residents or m~anbers 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 covered under this contract will receive the same production
priorities as Mountain View residents.
2. Facility Usage Allowance
CONTRACTOR and CITY agree that the maximtun 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
KMVT/CUP FY0405 Agreement F~chibit A
' Page 1 of 4
* 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.
Cupertino producers will be limited to the above equipment usage guarantees. The initial programs and
producers identified above will have first priorit:~ to use the equipment. Each program will be allocated
2 hours per month for studio production, except Able Cable Productions, which will be allocated 1 hour
for each month that the total studio usage equals 15. If the total studio usage equals less than 15 for the
month, than Able Cable Productions will be allocated 2 studio hours for that month. As well, of the 15
studio hours available, the Cupertino Senior TV :Production group will be allocated 25 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, up to 5 hours per month.
All studio times will be booked for 4-month sessions. Any times after the 4-month booking that is
available under the 15 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 15 hours unless the Cupertino
producer books the studio within 48 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 community access rates as
defined in the CONTRACTOR'S Users' Guide.
Edit time will limited to the 24 hours per month ,as identified above. Indian Vegetarian Gourmet (IVG)
will receive priority on edit time, up to the 24 hour maximum. If in any given month IVG does not use
24 edit hours, the remaining edit hours will be allocated evenly to all other Cupertino shows identified
in this contract. If Cupertino users want to use more edit time than 24 hours per month, they may do so
but will be cl~rged personally at the standazd community access rates as~lefined in the
CONTRACTOR'S Lasers' Guide.
Dubbing time will be limited to 10 hours per month and Camcorder checkouts will be limited to 4 check-
outs per month. IVG will be guaranteed 2 of the 4 checkouts per month. If Cupertino users
want to use more dubbing time or camcorder check-outs than the maximum allowed under this
contract, they may do so bu.t they will be charged personally at the standard community access rates as
defined in the CONTRACTOR'S Lasers' Guide.
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 Laser's Guide.
CONTRACTOR shall provide CITY a separate signal for the Cupertino community access channel,
allowing Cupertino video programming to be se)~arate from Los Altos programming, if the CTTY so
chooses.
CONTRACTOR shall be responsible for scheduling all Cupertino community access programming on
the designated community access channel available to the CITY. Each program outlined above shall
ICNIV'I'/CUP FY0405 Agreement Exhibit A
Page 2 of 4
receive three airings per week under this contract: (See Exhibit B for detail). Any 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 is subject to the limits of this agreement as defined in this
agreement and Exhibit B.
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 t11e cable company's system to the CONTRACTOR's
playback facility is sufficient and properly functi~~ning 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 lvlountain View's 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.
4. Bulletin Board Seraices
CONTRACTOR shall also provide an electronic bulletin board system that will display community
messages on the Cupertino community access channel during non-video programming hours.
CONTRACTOR and CITY have agreed that the c urrent Targa-based system that CONTRACTOR uses
for such purposes shall be replaced by a new Matrox-Infonet TV System. Such sy~#ern to be in operation
no later than November, 2004. Content for the bulletin board shall be provided by the CITY,
community non-profit organizations, and CONTRACTOR. CONTRACTOR shall manage the bulletin
board system and shall create the bulletin board pages and bill the CTI'Y for such work as outlined in
Exhibit B.
Matrox-Infonet TV System Purchase
CONTRACTOR will purchase the Infonet TV System at a cost not to exceed $6,500. The CITY will pay
CONTRACTOR $5,000 for the reimbursement of the Infonet TV equipment within 30 days of written
notice of such purchase by CONTRACTOR If the CITY enters into an agreement the following year
with CONTRACTOR to provide Infonet Bulletin Board services, the CITY will pay CONTRACTOR the
remaining balance on the Infonet system, up to a maximum of $1,500, at which time the CTTY shall own
the Infonet TV system. If the CITY terminates its agreement with CONTRACTOR and it owns the
Infonet TV system, the CITY can take possession of the Infonet TV system at any time. 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, up to a maximum of $6,5(10, the CITY shall
pay off the remaining balance owed to CONTRACTOR on the Infonet TV system, at which time the
CITY will own the Infonet TV system and can tale possession of such system.
KMVT/CUP FY0405 Agreement Exhibit A
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EXHIB [T "B"
CONTRACT COSTS Cost
Personnel $7,250
Facility Usage
Equipment Charge .Monthly Use CITY Yearly Use Total Cost
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
Cablecast
Programs ~ 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 12 $90.00
x 52 Weeks
Tota! Yearly Playback $4,680
Infonet TV Bulletin Board Manage^ $4,500
TOTAL SERVICE COSTS "' ~ $44,990 "'
Capital Expense
Infonet TV Bulletin Board System Reimbursement $5,000
TOTAL CONTRACT COSTS $49,990
* Studio and editing hours aze fixed amounts to provide CITY with guarantee that time will be available. CITY shall pay for
these fixed amounts regardless of actual use to guarantee that time i:~ available. Camcorder and dubbing shall be billed on an
actual usage basis.
** CITY is guazanteed 15 hours of studio time. However, CONTRACTOR supports the idea of contributing to senior
discounts for community services and will cover up to 5 hours of they Cupertino Senior TV Production Group's studio time per
month, should total studio time for all CITY supported programs ex~;eed 10 hours for the month. Total studio time provided to
CITY supported programs shall not exceed 15 (including the 5 ICM`/'f provided hours).
^ Cost covers ramp-up time to get system up to speed and an average of twenty new community pages per month.
KMVT/CUP- FY(kt05 Exhibit B
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EXHIBIT "C"
INSURANCE REQUIREMIiNTS 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 +~rise 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 Liabilit3~: $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, af;ents and volunteers are to be covered as additional
insureds with respects to liability arising out of activities I~erformed by or on behalf of the Contractor; products and
~, completed operations of the Contractor; premises owed, occupied or used blt-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 CONTF:ACTOR'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 conMbute 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 sep2~rately 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
KMV'T/CUP - F.~chibit C
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