97-033 Foothill- De Anza Community College Public Access Channels and StudioAGREEMENT BETWEEN THE CITY OF CUPERTINO AND
FOOTHILL DE ANZA COMMUNITY COLLEGE DISTRICT
FOR THE OPERATION OF PUBLIC ACCESS CHANNELS
AND A PUBLIC ACCESS STUDIO
THIS AGREEMENT (hereinafter "Agreement") is made and entered into as of July 1,
1996 (hereinafter "Effective Date") between the City of Cupertino, a California municipal
corporation (hereinafter "City") and the Foothill -De Anza Community College District
(hereinafter "District"). City and District may be referred to herein individually as a "Party" or
collectively as the "Parties."
RECITALS
This Agreement is made with reference to the following:
1. On October 14, 1980 the City entered into an agreement (hereinafter "Franchise
Agreement") with TCI Cablevision of California, Inc., formerly United Artists Cable Television of
Cupertino, (hereinafter "TCP') to construct, operate, and maintain a Community Antenna
Television System (hereinafter "Cable System") in the City of Cupertino.
2. Said Franchise Agreement sets forth, by reference to other documents, certain
obligations to be performed by TCI regarding public access channels, a public access studio, and
local educational channels.
3. By means of a separate agreement entered into on April 6, 1981 and revised as of
July 1, 1991 (hereinafter "Tripartite Agreement"), the City, District, and TCI agreed, among other
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April 23, 1997
things, that District would assume these obligations and receive compensation therefor from City.
4. Said Franchise Agreement was renewed on December 8, 1995. Under the terms of
said renewal, TCI is obligated to provide up to six (6) channels devoted to public, educational,
and governmental uses (hereinafter "PEG Channels").
The Tripartite Agreement between the City, District and TCI has expired and it is
the intent of the City and District to enter into a new agreement for the continued operation of the
PEG channels and a public access studio • arrd-I}e->pgre€e��ipnae>}t-to-ili�g digital-
-tem-dur4>}g4he4er-iE-of44ii-5-Ageei It-.
AS -
NOW, THEREFORE, in consideration of the covenants and conditions herein contained,
the Parties hereto further agree as follows:
1. TERM AND TERMINATION
a). This Agreement shall commence as of the effective date and shall continue
thereafter for a period of three (3) years unless earlier terminated in accordance with this
Agreement; provided, however, that this Agreement shall be automatically extended for
successive periods of three (3) years unless a Party shall have provided written notice of non-
renewal to the other Party no later than sixty (60) days prior to the end of the prior three (3) year
period.
b). This Agreement shall be subject to termination for a material breach hereof by
either Party, which breach is not cured within thirty (30) days after written notice of such breach
is provided by the Party claiming such breach.
c). This Agreement may be terminated by City, upon sixty (60) days' advance written
notice to District in the event that the Franchise Agreement shall terminate, and City shall have no
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April 23, 1997 2
reasonable means of providing television channel capacity.
2. SCOPE OF SERVICES
a.) District shall provide one or more television studios at or near its De Anza College
campus, together with all related facilities, equipment, operating and support personnel to operate
those PEG Channels devoted exclusively to public access programming in accordance with
guidelines and operating procedures adopted by District. District shall permit access to such
studio, equipment and facilities by members of the public for the production, recording, and
cablecast of non-commercial programming.
b.) District shall maintain such studio in good condition and shall maintain, repair, and
replace as necessary such equipment in accordance with the manufacturer's technical
specifications and as may be required for proper operation.
3. OWNERSHIP OF EQUIPMENT AND FACILITIES
Title to any public access studio provided by District and all equipment now in the
possession of District (including, but not limited to, all cameras, recorders, monitors, character
generators, microphones, projectors, consoles, electrical connections, props, furniture and
furnishings used by District in the operation of its cable television studios and the production,
recording, programming and broadcast of cable television programs) and title to any such
equipment or facilities purchased during the term of this Agreement shall be and remain in the
name of District unless otherwise agreed by the Parties.
4. COMPENSATION
a.) As payment for services provided by District hereunder, City shall pay to District
the sum of $83,000 per year beginning with fiscal year 1996-97, payable in equal quarterly
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April 23, 1997
installments of $20,750. Said payments shall increase each fiscal year thereafter in accordance
with any increase in the Bay Area All Urban Consumers Index, or any successor index, for the
twelve month period ending the November 30 immediately preceding such fiscal year; provided
however, that in no event shall said increases be less than two percent (2%), nor more than four
percent (4%) annually.
b.) The compensation provided for herein shall be within the amounts set forth in
budgets submitted by District to City in advance of each City fiscal year, in substantially the form
of the District's operating budget for fiscal year 1996-97, a copy of which is attached hereto as
Exhibit A and incorporated herein by reference. Notwithstanding the foregoing, City shall have
no obligation to reimburse District for the salary and benefits relating to the position of Public
Access Director for the District. Such costs shall be the sole responsibility of District.
C.) Within thirty (30) days following the end of each fiscal quarter of City, District
shall provide City with an invoice for the quarterly compensation hereunder, which invoice shall
constitute a representation of District that the costs and expenses set forth therein have in fact
been spent or incurred.
5. INDEPENDENT CONTRACTOR
All personnel engaged in the performance of the services set forth in this Agreement shall
be employees of District and not agents or employees of City. District shall at all times act as an
independent contractor with respect to the performance of this Agreement, with full rights to
manage its employees subject to the requirements of the law. Neither District nor any employees
or agents of District shall be considered an employee of City for any purpose. Nothing contained
herein shall be construed to restrict or prohibit District from providing similar services to others.
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6. INDEMNIFICATION
a). District agrees to indemnify and save harmless City, its officers, agents, and
employees from and against any and all claims, demands, actions, suits and proceedings of any
and every kind (including those brought because of an alleged violation of proprietary or
copyright interests) and any and all judgements, expenses and costs resulting therefrom, including,
but not limited to reasonable attorney's fees, arising out of the supervision, operation,
maintenance, of the public access channels, local educational channels, and public access studio.
b). City agrees to indemnify and save harmless District, its officers, agents and
employees from and against any and all claims, demands, actions, suits, and proceedings of any
kind (including those brought because of an alleged violation of proprietary or copyright interest)
and any and all judgements, expenses, and costs resulting therefrom, including, but not limited to,
reasonable attorney's fees, arising in any manner out of the City's use of any programming from
the PEG Channels.
7. COMPLIANCE WITH LAWS
Both Parties shall observe and comply with all valid laws, ordinances, statutes, orders and
regulations now or hereafter made or issued respecting this Agreement by any federal, state,
county, local or other government agency or entity having jurisdiction thereof. No provision
contained in this Agreement shall constitute a waiver of or bar to the exercise of any
governmental right or power of the City.
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April 23, 1997
8. NOTICES
Any notice, request, dernand or other communication provided for hereunder shall be in
writing and delivered in person or sent by First Class mail, facsimile or overnight delivery and
addressed as follows:
City: City Manager
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Facsimile: (408) 777-3366
To District: President
De Anza College
21250 Stevens Creek Blvd.
Cupertino, CA 95014
Facsimile: (408) 864-8603
Either Party may change its address for receipt of notices under this Agreement by notice
given in the manner provided herein.
9. ATTORNEY'S FEE
If suit be brought by either Party under this Agreement, the prevailing Party shall be
entitled to its costs of suit, including reasonable attorney's fees.
10. ASSIGNMENT
No interest in this Agreement, nor any rights or obligations hereunder, may be assigned or
delegated in whole or in part, by either Party without the prior written consent of the other Party,
which consent shall not be unreasonably withheld.
11. AMENDMENTS
This Agreement represents the entire understanding and expression of the Parties'
Agreement as to those matters contained herein, and supersedes all other oral or written
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agreements with respect to such matters. This Agreement may be modified only by a written
amendment duly executed by the Parties.
12. NO THIRD PARTY BENEFICIARY
This Agreement shall not be construed or deemed to be an agreement for the benefit of
any third party or parties. No third party or parties shall have the claim or right of action under
this Agreement for any cause whatsoever.
13. DUPLICATION OF PROGRAMMING
Subject to any exclusive distribution rights agreement or copyright ownership, both
Parties may, at their sole costs, duplicate, distribute, or otherwise utilize programming from public
access, local education and institutional network channels.
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April 23, 1997 7
The Parties acknowledge and accept the terms and conditions of this Agreement as
evidenced by the following signatures of their duly authorized representatives. It is the intent of
the Parties that this Agreement shall become effective as of June 30, 1996.
Approved as to Form:
City Attorney
CM00TH I LUAGRMENT.005
April 23, 1997 8
City of Cupertino
By:
gMayo2r,Ci�t�yof Cupertino
Attest:
City Clerk
Foothill -De Anza Community
College District
President, De Anza College
Exhibit A
PUBLIC ACCESS BUDGET
PROFESSIONAL SERVICES 1996-97
Access Director $48,960
Benefits $16,157
HALFTIME ENGINEER
$18,000
Benefits
$5,940
ACCESS ASSISTANT
$21,200
Benefits
$1,802
Salary and Benefits Total
$112,059
MATERIALS & SUPPLIES
$10,200
EQUIPMENT MAINTENANCE
$6,200
FIXED ASSETS (Maintenance and replacement)
Cameras (Remote and Studio) $ 0
Videotape Recorders $ 0
Studio Equipment $20,000
Editing Equipment $ 0
TOTAL SALARY, SUPPLIES, EQUIPMENT
less Access Director Salary & Benefits
Net Contract Obligation (City of Cupertino)
Rounded to
MB 4/25/97
$148,459
$65,117
$83,342
$83,000
Side Letter of Agreement
between
City of Cupertino (City)
Foothill -De Anza Community College District (District)
May 20, 199^
The City and the District have entered into a contract for the operation of
public access channels and;a public access studio dated May 19,1997. In
addition to the i6spbnsibifities and compensation provided in that agree-
ment, the District aAd City agree that if additional capital equipment is
required for the !studio to be used in the operation of the public access station,
the District may.submit a funding request to the City Manager no later than
February of each year for consideration for the next fiscal year's funding. if
the City Managar approves such a request, the request shall be forwarded to
the City Council; in March -of each year, for consideration in the next fiscal
year.
City MalQger, City of (Cupertino
2i
Date ''resident, De Anza College Date
Director, Business Services Date
Foothill -De Anza Community College
RESOLUTION NO. 9843
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO AUTHORIZING EXECUTION OF AGREEMENT
WITH DE ANZA COLLEGE, PUBLIC ACCESS CHANNELS AND
STUDIO
WHEREAS, there has been presented to the City Council a proposed agreement
between the City of Cupertino and DeAnza College for the continued operation of public
access channels and public access studio;
WHEREAS, the terms, conditions and provisions of the loan documents have
been reviewed and approved by the City Attorney and the City Manager.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Cupertino hereby approves the aforementioned repayment schedule and authorizes the
Mayor and the City Clerk to execute the agreement herein referred to on behalf of the
City of Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 19th day of May, 1997 by the following vote:
Vote Members of the City Council
AYES: Burnett, Chang, Dean, Sorensen, Bautista
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
/s/ Roberta Wolfe
Dep. City Clerk
ResolutUres9852.doc
/s/ John Bautista
Mayor, City of Cupertino