2 - KCAT Cable Casting and PEG FundingjpW N OF
r "~°&° a COUNCIL AGENDA REPORT
~S GASO
DATE: JULY 28, 2010
MEETING DATE: OS/02/10
ITEM NO:
TO: MAYOR AND TOWN COUNCIL
FROM: GREG CARSON, TOWN MANAGER
SUBJECT: APPROVE AGREEMENT WITH KCAT FOR CABLE CASTING
SERVICES AND DISTRIBUTION OF PUBLIC, EDUCATIONAL AND
GOVERNMENT (P.E.G.) FUNDING.
RECOMMENDATION:
Approve agreement with KCAT for cable casting services and distribution of public,
educational and government (P.E.G.) funding.
BACKGROUND:
Since January 2003, KCAT has had an agreement to provide the Town cable casting
services. The Town pays KCAT $40,000 annually for taping and airing Town Council
($20,000) and Planning Commission meetings ($20,000). In addition, the Town provides
a $31,000 grant to KCAT annually.
In 2006, there was a change in video franchising laws in the State of California through
the Digital Infrastruchlre Video Competition Act (DPJCA). DIVCA allows the Town to
collect P.E.G. support fees of 1% of gross revenues from video services provided by
Comcast and any other state video franchise holder. The P.E.G. fee generates an
estimated $78,000 annually for Los Gatos and under federal law can only be used for
public, educational, and government cable-related capital needs.
DISCUSSION:
In October 2009, the KCAT Board requested that Town staff research the distribution of
P.E.G. funds allocated to the Town through the DIVCA Act. The Board expressed
interest in utilizing the funds to update equipment and improve services to the
PREPARED BY: Jessica von Borck, Economic Vitality Manager
N:Qv1GR4AdminWorkPiles~2010 Council Reports~kcat AGREEMEN'C 2010.doc
Reviewed by: ''" 1 Assistant Town Manage yl r y`yI'own Attorney
Clerk Administrator Finance Co nunity Development
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: APPROVE AGREEMENT WITH KCAT FOR CABLE CASTING
SERVICES AND DISTRIBUTION OF PUBLIC, EDUCATIONAL AND
GOVERNMENT (P.E.G.) FUNDING.
July 28, 2010
comrnunity. As a result, both Town staff and the KCAT Board worked collaboratively to
modify the existing KCAT agreement to define distribution of P.E.G. funds while
identifying creative ways to ultimately reduce Town costs while not impacting KCAT
operations.
Through the proposed five-year contract, the Town will appropriate all of the P.E.G.
funds that have been collected by the Town up to June 30, 2010 to KCAT with the
exception of $22,000 that will be retained by the Town. KCAT will continue to receive
P.E.G. funding from the Town on a quarterly basis thereafter with the exception of the
Town retaining 15% of those fixnds over the next two years of payments, or until a
reserve fund of $50,000 is created for the Town. The reserve fund is intended to cover
the costs of on-going maintenance and/or replacement of the Town's recording/video
equipment located at Town Hall. From that point onwards, 100% of P.E.G. funds will be
paid to KCAT.
The Town will reduce its current payments to KCAT by $51,000 in a phased plan over
the life of the contract beginning with reducing the annual grant byone-half in
2010/2011. The grant will phase out entirely in fiscal year 2011/2012. Over the
remaining three years of the contract, costs to the Town for cable casting services will be
incrementally reduced from $40,000 to $20,000.
FISCAL IMPACT:
With the proposed amendments to the KCAT agreement, the Town will be able to reduce
its costs for cable casting services by $20,000 and grant funding by $31,000 for a total
savings of $51,000 over afive-year period.
Attachments:
1. KCAT agreement
AGREEMENT FOR PUBLIC ACCESS FUNDING
AND CABLECASTING SERVICES
THIS AGREEMENT is dated for identification July 1, 2010 and is by and between the
Town of Los Gatos, a California municipal corporation, ("Town") and KCAT-TV, a non profit
public access television station ("KCAT"). This Agreement is made with re€ereneetathe
following facts and agreements.
I. Recitals
1.1 KCAT is anon-profit public access television station that serves the
community of Los Gatos and Monte Sereno. KCAT can be seen via AT&T
broadband on Channel 15 by 10,000 cable households in Los Gatos and Monte
Sereno.
1.2 The Town has always supported public access television within its
jurisdictional limits and seeks, in this Agreement to provide a more stable funding
source to support public, educational, and govermnental cablecasting, while
phasing out general fund monies formerly used to provide shorter term grants to
KCAT.
1.3 Town has Ueen providing approximately $70,000 per year to KCAT out of
Town's general fund and seeks to reduce the general fund support in favor of
allowing PEG funding to flow to KCAT.
1.4 Agreement will also serve as a contract with Town to pay for KCAT
services rendered to cabtecast meetings of the Town Council and Planning
Commission
1.5 The Parties in this Agreement replace and supersede that certain
AGREEMENT FOR CABLECASTING CONSULTANT SERVICES approved
by Town Council on January 21, 2003 (the "Prior Agreement").
II. Pubtie Access Funding
2.1 Beginning with fiscal year 2010/2011 and in subsequent fiscal years, Town shall forward
to KCAT PEG funds ~rithin thirty (30) days of receipt by Town. Said funds are to be
used for public access television services in Town, provided the expenditure of PEG
funds so received, shall be made in strict compliance with the law relative to PEG
funding, as it maybe amended from time to time.
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On or before August 1, 2010, Town shall forward to KCAT the accrued PEG
funds received by Town prior to June 30, 2010 (the "Accrued PEG funds"), minus
$22,000 which will be placed in the Equipment Reserve Account as provided in
paragraph 3.5 of this Agreement.
2.2 Grant and Phase-out of General Funds - In the fiscal year prior to this
Agreement, Town made a grant of $31,000 to KCAT and agreed to pay up to
$40,000 to KCAT for the cablecasting of Town council and Town planning
commission meetings. The Parties agree to the phase-out of the grant funding
source over the term of this Agreement and reduce the payment heretofore made
by Town for cablecasting the Town Council and Planning Cormnission meetings,
as provided herein.
2.3 Phase-out Fundine Schedule. In addition to the provision of PEG funding to
KCAT as provided in 2.1 above, the following shall be provided to KCAT on or
before August ls` of each fiscal year:
August 1, 2010 - $55,000
August 1, 2011 - $40,000
August 1, 2012 - $25,000
August 1, 2013 - $20,000
August 1, 2014 - $20,000
2.4 Term -This Agreement, commencing on July 1, 2010, and terminating on June
3Q 2015, unless terminated earlier pursuant to the terms hereof, or extended by
the Parties If this Agreement is terminated by KCAT prior to Tune 30, 2015,
the KCAT termination shall only be effective with the repayment to Town of the
total amount of the accrued PEG funding paid by Town to KCAT pursuant to
paragraph 3.5.
III. Cablecast Services
KCAT shall provide the following services listed below.
3.1 KCAT will cablecast up to twenty-eight (28) Town Council meetings per calendar
year live, generally scheduled on the first and third Monday of each month from
the Town Council Chambers as well as up to twenty-eight (28) Town Plauning~
Comrnission meetings per calendar year, which generally fall on the 2rd and 4
Wednesday of each month. The meetings may include special meetings, study
sessions, and rescheduled or continued meetings.
3.2 KCAT will work cooperatively with Town staff regarding the live cablecast of
any additional special events, meetings, as appropriate at mutually agreed upon
price, date, and time.
3.3 KCAT will provide appropriate technical staff, temporary operators, and an in-
chamber assistant trained in the specific aspects of meeting coverage and use of
the audio and video systems. Technical staff, temporary operators, and in-
chamber assistant will demonstrate proficiency with all relevant broadcasting
equipment.
3.4 KCAT will provide initial system checks, 60 (sixty) minutes prior to scheduled
meetings to ensure that the video and sound production equipment is performing
per specifications.
3.5 As provided in paragraph 2.1, Town shall pay the Accrued PEG funds to KCAT,
however, Town shall retain $22,000 of the PEG funds received by Town prior to
July 1, 2010, and place said funds in an Equipment Reserve Account (the
"ERA"). Town shall also retain 15% of PEG funds received from each of the
2011/12 and 2012/13 fiscal years. These fluids will be made available for repairs,
replacement and maintenance of the equipment used to cablecast and broadcast
Town Council and Planning Commission meetings. The ERA may also be used
for other technological upgrades to the Council chambers.
KCAT shall provide atI routine maintenance, repair, and parts replacement of all
cablecasting equipment at the level necessary to permit the equipment to achieve
its useful life. This maintenance does not include maintenance of the external
cable link between Town HaII and KCAT. The cost for the parts, equipment and
maintenance shall be recommended to Town by KCAT and paid, upon the
approval by the Town Manager from the ERA.
In entering this Agreement, both KCAT and Town believe that the ERA funded at
the $50,000 level for the term of this Agreement will be sufficient to meet the
needs of Town in meeting the cost of repair, maintenance and replacement of the
Town equipment. If, however, said funds are not sufficient the parties agree that
the needs of Town in this regard shall have first priority on PEG funds received
by Town. In that event, the ERA shall be funded to meet those needs.
3.6 KCAT will provide technical consultation for the repair, modification, and
upgrade of the Town-owned video production equipment.
3.7 KCAT will provide temporary use of existing KCAT cameras and other
equipment in the event that the video production equipment fails to operate
properly.
3.8 KCAT agrees to meet with Town representatives within five (5}business days of
a request by the Town at a mutually agreeable time and location.
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3.9 KCAT is responsible for securing the video production equipment room after
cablecasting, tape duplication, or other activities.
3.10 For public meetings, KCAT will provide gauel to gavel meeting coverage.
3.11 KCAT will provide to the Town at no cost, two (2) recordings of all meetings
covered by this Agreement on broadcast quality DVD discs, capable of being
copied and/or reproduced by Town. Recordings of meetings shall be given to the
Town for its records.
3.12 KCAT will air previously recorded meetings covered by this agreement on its
Community Access Channel (Channel 15/ KCAT) based on its program/schedule
availability. KCAT shall provide copies of Town meetings to any individual,
group, agency, or organization requesting same on DVD discs within five (5) days
of the request and for the reproduction cost authorized by the California Public
Records Act (xcaT~s s~t„at~os~), not to exceed $10.00 per disc.
3.13 KCAT shall not use Town video broadcasting equipment for any other purpose
other than this Agreement, unless written consent is given the Town. cablecasting
and broadcasting equipment shall be operated at all tunes by the technical and
temporary staff covered in this Agreement.
N. General Provisions
4.1 Time of Performance. The services of the KCAT are to continue per the Prior
Agreement for the period set forth in Section 2.4, unless Agreement is terminated
earlier pursuant to Section 4.14. Upon mutual written agreement between the
Town and the KCAT signed by the KCAT-TV Station Manager and Town
Manager, this contract may be extended for an additional year.
4.2 Compliance with Laws. KCAT shall comply with all applicable laws, codes,
ordinances, and regulations of governing federal, state and local laws. KCAT
represents and wat~rants to Town that it has all licenses, permits, qualifications and
approvals of whatsoever nature which are legally required for KCAT to practice
its profession. KCAT represents and warrants to Town that KCAT shall, at its
sole cost and expense, keep in effect or obtain at all times during the term of this
Agreement any licenses, permits, and approvals which are legally required for
KCAT to practice its profession. KCAT shall maintain a Town of Los Gatos
business license pursuant to Chapter 14 of the Code of the Town of Los Gatos.
4.3 Sole Responsibility. KCAT shall be responsible for employing or engaging all
persons necessary to perform the services under this Agreement.
4.4 Pavment for Cablecastine -All payments due under this Agreement for direct
cablecasting services (non-PEG funds) shall be based upon services rendered to
the Town.
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4.5 Audits -Availability of Records. KCAT shall maintain a general ledger and
detailed books of account showing the receipt and expenditure of all funds
received from Town for net less than five (5} years following completion of the
work the receipt of funds and the expenditure of frurds under this Agreement.
KCAT shall make these records available to authorized personnel of the Town at
KCAT's offices during business hours upon written request of the Town.
If an audit conducted by the Town demonstrates inappropriate expenditures of
public fiords by KCAT, including PEG funds, KCAT shall reimburse said
expenditures and restore the funding as may be required. If any audit by Town
discloses a discrepancy in allowed expenditures of more than five percent (5%) in
any one year, KCAT shall reimburse Town for the cost of the audit, including any
staff time contributed to the securing or management of the audit andlor the
required follow-up actions. In selecting the auditor or audit firm, To~~+n shall be
guided by the rates it pays for the audit of Town functions.
4.6 PEG and Grant Funding. KCAT shall maintain detailed records and books of
account showing the receipt of and expenditure of all PEG Funding and Grant
Funding received from Town. KCAT acknowledges that PEG funding is strictly
limited to certain expenditures for capital costs, equipment, and facilities as
permitted by state and federal law.
4.6.1 Annual Report. On or before March ls` of each year, beginning with March 1,
2011, KCAT shall submit a written report and analysis of all funds received from
Town in the prior calendar year and a listing of expenditures made with said funds
or from the accumulation or interest/investment earnings onsaid funds. The
report shall be submitted to the Town Manager.
4.7 No Self Dealing. Prue in-part to the public funding provided in this Agreement,
no KCAT Board Member may be financially interested in any contract,
expenditure, purchase, or grant made by KCAT. KCAT employees are likewise
excluded from any financial interest in any contract, expenditure, purchase, or
grant by or from KCAT. For the purpose of this section, financial interest shall be
determined pursuant to Govermnent Code 1090, et: seq.
4.8 Project Manager. The Project Manager for KCAT for the work under this
Agreement shall be Thomas M. Bryan, KCAT-TV Station Manager, or an
appropriate KCAT-TV Board designee. Town shall designate a Town staff
member to serve as a liaison to the Board and who will serve as an ex-officio
board member. The ex-officio board member shall be entitled to, but not required
to attend all meetings of the Board and be permitted to participate in all
discussions, but not vote. The ex-officio member shall receive advance written
notice of all meetings of the board.
4.9 Assignability and Subcontracting. The services to be performed render this
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Agreement are unique and personal to KCAT. No portion of these services shall
be assigned or subcontracted without the written consent of the Town.
4.10 Notices. Any notice required to be given shall be deemed to be duly and properly
given if mailed postage prepaid, and addressed to:
To Town: To KCAT:
Greg Larson Thomas M. Bryan
Town Manager KCAT-TV Station Manager
110 E. Main Street 20 High School Court
Los Gatos, CA 95030 Los Gatos, CA 95030
or personally delivered to KCAT to such address or such other address as KCAT
designates in writing to Town.
4.11 Independent Contractor. It is understood that KCAT, in the performance of the
work and services agreed to be perf'orrned, shall act as and be an independent
contractor and not an agent or employee of the Town. As an independent
contractor, he/she shall not obtain any rights to retirement benefits or other
benefits which accrue to Town employee(s). With prior written consent, the
KCAT may perform some obligations under this Agreement by subcontracting,
but may not delegate ultimate responsibility for performance or assign or transfer
interests under this Agreement. KCAT agrees to testify in any litigation brought
regarding the subject of the work to be performed under this Agreement. KCAT
shall be compensated for its costs and expenses in preparing for, traveling to, and
testifying in such matters at its then current rates of compensation, unless such
litigation is brought by KCAT or is based on allegations of KCAT's negligent
performance or wrongdoing.
4.12 Equal Employment Opportunitu. KCAT warrants that it is an equal opportuiuty
employer and shall comply with applicable regulations governing equal
employment opportunity. Neither KCAT nor its subcontractors do and neither
shall discriminate against persons employed or seeking employment with them on
the basis of age, sex, color, race, marital status, sexual orientation, ancestry,
physical or mental disability, national origin, religion, or medical condition,
unless based upon a bona fide occupational qualification pursuant to the
California Fair Employment & Housing Act.
4.13 Indemnification. KCAT shall defend, indemnify and hold harmless the Town, its
officers, agents, employees and volunteers from all damages, liabilities, penalties,
costs, or expenses in law or equity that may at any time arise or be set up because
of damages to property or personal inj ury received by reason of, or in the course
of performing work which maybe occasioned by a willful or negligent act or
omissions of KCAT, or any of KCAT's officers, employees, or agents or any
subcontractors.
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4.14 Waiver. No failure on the par[ of either party to exercise any right or remedy
hereunder shall operate as a waiver of any other right or remedy that party may
have hereunder, nor does waiver of a breach or default under this Agreement
constitute a continuing waiver of a subsequent breach of the same or any other
provision of this Agreement.
Governine Law. This Agreement, regardless of where executed, shall be
governed by and construed to the laws of the State of California. Venue for any
action regarding this Agreement shall be in the Superior Court of the County of
Santa Clara
4.15 Default. Should either party deault under this Agreement, the non-defaulting part
shall demand a cure before filing any action to enforce this Agreement If the
default is not cured within a reasonable tune, not to exceed thirty (30) days, the
nondefaulting party may pursue whatever remedies, at law or inequity that they
choose.
In the event that KCAT defaults under this Agreement, Town reserves the right to
recover whatever damages may lie, and shall have a separte right to recover the
Accrued PEG fartds.
4.1.6 Termination of Agreement. The Town and KCAT shall have the right to
terminate this agreement with or without cause by giving not less than six (6)
months written notice of termination. In the event of termination by KCAT, the
non-PEG funding provided by the Town under this agreement shall be pro-rated
on a month-to-month basis and partial month, as may be applicable. PEG
funding shall terminate on the day this Agreement terminates, payable within
thirty (3Q) days thereafter.
4.17 Amendment. No modification, waiver, mutual ternination, or amendment of this
Agreement is effective unless made in writing and signed by the Town and
KCAT.
4.18 Disputes. In any dispute over any aspect of this Agreement, the prevailing party
shall be entitled to reasonable attorney's fees, including costs of appeal.
4.19 Entire Agreement. This Agreement constitutes the complete and exclusive
statement of the Agreement between the Town and KCAT. No terms, conditions,
understandings or agreements purporting to modify or vary this Agreement,
unless hereafter made in writing and signed by the party to be bound, shall be
binding on either party.
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IN WITNESS WHEREOF, the Town and KCAT have executed this Agreement as of the date
indicated on page one (1).
TOWN OF LOS GATOS:
Greg Larson, Town Manager
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Bryan, KCAT Station Manager
APPROVED AS TO FORM:
chael D. rtello, Interim Town Attorney
ATTEST:
Jackie D. Rose, Clerk Administrator