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
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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