Staff Report.�owx F
��8 GATOS.
DATE:
TO:
FROM:
SUBJECT
MEETING DATE: 09/01/15
ITEM NO:
COUNCIL AGENDA REPORT
AUGUST 24, 2015
MAYOR AND TOWN COUNCIL
LES WHITE, INTERIM TOWN MANAGE
APPROVE AGREEMENT WITH KCAT FOR CABLECASTING SERVICES
RECOMMENDATION:
Approve agreement with KCAT for cablecasting services.
BACKGROUND:
Since January 2003, KCAT has had an agreement to provide the Town cablecasting of Town meetings,
which includes taping and broadcasting Town Council and Planning Commission meetings. In 2010,
the Town Council approved a five year agreement for the cablecasting services and distribution of
public, education and government (P.E.G.) funding. The agreement included a phase -out funding
schedule that reduced annual cablecasting payments by $15,000 a year, beginning with $55,000 in
August of 2010 and concluding with $20,000 annually in years 2013 (year four) and 2014 (year five) of
the contract.
The current agreement expired on June 30, 2015. Since May 2015, Town staff has met with board
representatives from KCAT to negotiate a new five -year agreement for the cablecasting of Town
Council and Town Planning Commission meetings.
DISCUSSION:
In May 2015, Town staff and the KCAT Board began working collaboratively to negotiate a new five
year agreement for the cablecasting of Town Council and Town Planning Commission meetings.
Cable Casting Agreement
Beginning in fiscal year 2015/16 through fiscal year 2019/20, KCAT will tape and broadcast 28 Town
Council meetings, 28 Planning Commission meetings, and four Committee meetings a year for a total of
60 meetings a year. The hourly rate for the taping and broadcasting of each meeting is $95 per hour.
PREPARED BY:
CHRISTINA GILMORE0(
ASSISTIANT TO THE TOWN MANAGER
Reviewed by: MAssistan t Town Manage Town Attorney Finance
N: \MGR \AdminWorkFiles\2015 Council Reports \Sept 1 \09.01.15 KCAT Agreement Staff Repon.docx
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: APPROVE AGREEMENT WITH KCAT FOR CABLECASTING SERVICES
DATE: AUGUST 24, 2015
Staff surveyed multiple jurisdictions in Santa Clara County that included Campbell, Cupertino,
Saratoga, Sunnyvale, and Los Altos and found that an hourly rate of $95 per hour is consistent with the
hourly rate for similar cablecasting services charged in these jurisdictions.
P.E.G. Funding
KCAT will continue to receive 100% P.E.G. funding from the Town on a quarterly basis as negotiated
in the original agreement. Current P.E.G. fund allocations are approximately $24,500 a quarter or
$98,200 a year. However, if the Town determines that additional P.E.G. funds need to be retained for
the Equipment Reserve Account (ERA) for repairs, replacement, and maintenance of equipment used to
cablecast and broadcast Town Council and Planning Commissions meetings, or to make other
technological upgrades to the Council chambers, the Town may re -enter into negotiations with KCAT
for the temporary re- allocation of these funds.
Venue Lease Agreement
At the June 2, 2015 Town Council meeting, the Council directed staff to negotiate a lease agreement
with KCAT for the reuse of the former Venue building. The lease negotiations for the reuse of the
former Venue building are being conducted separately from the cablecasting agreement. A lease
agreement will be brought forward for Council consideration at a later date.
Broadcasting of Town Special Events
For the past 58 years, Los Gatos has held an annual Children's Christmas/Holiday Parade. The parade is
co- sponsored by the Town of Los Gatos, the Los Gatos Lions Club, and Los Gatos - Saratoga Recreation.
In recent years, KCAT has broadcasted the event on KCAT TV 15, and is proposing to continue
broadcasting the event with expanded coverage beginning in 2015. KCAT estimates that continued and
expanded broadcasting of the Annual Children's Christmas/Holiday Parade would cost an additional
$5,000 annually, and requests that the Town Council consider allocating additional funds separate from
the five year agreement, to continue the broadcast of this long- standing community event.
CONCLUSION:
Staff recommends that the Town Council approve the agreement with KCAT for cable casting services.
The five year agreement with KCAT will provide the Town with cable casting services for 28 Town
Council meetings, 28 Planning Commission meetings and four Committee meetings for a total of 60
meetings and a cost of $35,000 annually through FY 2019/20.
ALTERNATIVES:
1. Not accept the agreement with KCAT for cable casting services.
2. Provide other direction for the renegotiation of the agreement.
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: APPROVE AGREEMENT WITH KCAT FOR CABLECASTING SERVICES
DATE: AUGUST 24, 2015
COORDINATION:
This report has been prepared in coordination with the Offices of the Town Manager, the Town
Attorney, and the Finance Department.
FISCAL IMPACT:
The fiscal impact is anticipated to be $35,000 annually for cablecasting services over the course of a five
year period. KCAT will continue to receive 100% of P.E.G. funding from the Town on a quarterly basis
unless the Town chooses to enter into renegotiations for the temporary re- allocation of these funds as
discussed in this report. Sufficient funds have been budgeted for FY 2015/16 in 1201-63311 for
cablecasting services.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. August 2, 2010 report to the Town Council and FY 2010 /11 —FY 2014/15 Agreement for Public
Access Funding and Cablecasting Services
2. Draft FY 2015/16 —FY 2019/20 Agreement for Public Access Funding and Cablecasting
Services
THIS PAGE
INTENTIONALLY
LEFT BLANK
*COUNCIL AGENDA REPORT
DATE: JULY 28, 2010
TO: MAYOR AND TOWN COUNCIL
FROM: GREG LAR SON, TOWN MANAGER
MEETING DATE: 08/02/10
ITEM NO:
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.) finding.
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.
hr 2006, there was a change in video franchising laws in the State of California through
the Digital Infrastructure Video Competition Act ( DIVCA). DIVCA allows the Town to
collect P.E.G. support fees of I% 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
NAMGRlAdminWorkri7es12010 Council ReportslkC;A AGREEMENT 2010.doe
Reviewed by: LS Assistant Town Manage own Attorney
Clerk Administrator Finance _Co numty Development
ATTACHMENT 1
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
community. 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. hands 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.
fiords 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. hording from the Town on a quarterly basis thereafter with the exception of the
"Down retaining 15% of those funds 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 by one -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 a five -year period.
Attachments:
1. KCAT agreement
CLERK DEPARTMENT
ORD
RESO
AGREEMENT FOR PUBLIC ACCESS FUNDING
AND CABLE, CASTING 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 reference to the
following facts and agreements.
I. Recitals
1.1 KCAT is a nonprofit 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 governmental cableeasting, while
phasing out general fund monies formerly used to provide shorter term grants to
KCAT.
13 Town has been 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 cablecast meetings of the Town Council and Planning
Commission
L5 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 ").
ILL Public Access Funding
2.1 Beginning with fiscal year 2010/2011 and in subsequent fiscal years, Town shall forward
to KCAT PEG funds within 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 may be 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 Cormcil and Planning Commission meetings,
as provided herein.
2.3 Phase -out Funding 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 I" 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 Tenn — This Agreement, commencing on July 1, 2010, and terminating on June
30, 2015, unless terminated earlier pursuant to the terms hereof, or extended by
the Parties. If this Agreement is terminated by KCAT prior to June 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 Planning
meetings eetings per calendar year, which generally fall on the 2" 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.
•,0 i
33 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 Accred 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
`BRA "). Town shall also retain 15% of PEG funds received from each of the
2011/12 and 2012/13 fiscal years. These funds 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 all 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 Hall 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.
,�- 5) <2 �_4
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 gavel to gavel meeting coverage.
3.1 I 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 (KCAT'sactualwst), 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 times by the technical and
temporary staff covered in this Agreement.
1V. 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 warrants 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 Paytnent for Cablecasting — 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 not less than five (5) years following completion of the
work the receipt of funds and the expenditure of funds under this Agreement.
KCAT shall make these records available to authorized personnel of the Town at
KCATs offices during business hours upon written request of the Town.
If an audit conducted by the Town demonstrates inappropriate expenditures of
public funds 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 and /or the
required follow -up actions. In selecting the auditor or audit firm, Town shall be
guided by the rates it pays for Ure 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 Amn al Report On or before March I" 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 on said funds. The
report shall be submitted to the Town Manager.
4.7 No Self Dealitn . Due 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 Government Code 1090, et. seq.
4.8 Proiect Mana er. 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 Subcontractinu. The services to be performed under this
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 performed, 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 E-Quill 131111219Yment Opportunity. KCAT warrants that it is an equal opportunity
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 injury received by reason of, or in the course
of performing work which may be 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 fiver. No failure on the part 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.
Governing 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 time, not to exceed thirty (30) days, the
nondefaulting party may pursue whatever remedies, at law or in equity that they
choose.
In the event that KCAT defaults under this Agreement, Town resery es the right to
recover whatever damages may lie, and shall have a separte right to recover the
Accrued PEG funds.
4.16 Tomination of A mr nne,. 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 (30) days thereafter.
4.17 Amendment. No modification, waiver, mutual termination, 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 EntimAgreemen, 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 patty to be bound, shall be
binding on either party,
& t�o
IN WYTNESS 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
KCAT-
Ob r7/1 0
Thom . Bryan, KCAT Station Manager
APPROVED AS TO FORM:
ichADI�1110, Interim rIln Attorney
rNINI
Draft agreement subject to modification as part of Town Council action.
AGREEMENT FOR PUBLIC ACCESS FUNDING
AND CABLECASTING SERVICES
THIS AGREEMENT is entered into 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 reference to the following facts and agreements.
ARTICLE 1: RECITALS
1.1 KCAT is a non -profit public access television station that serves the community
of Los Gatos and Monte Serene. KCAT can be seen via Comcast on Channel 15
by 10,000 cable households in Los Gatos and Monte Serene.
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 governmental cablecasting.
1.3 This Agreement will serve as a contract with Town to pay for KCAT services
rendered to cablecast meetings of the Town Council and Planning Commission.
1.4 The Parties to this Agreement replace and supersede all previous agreements
between the parties related to public access television.
ARTICLE 2: REPRESENTATIONS AND WARRANTIES OF KCAT
2.1 KCAT Status
KCAT shall be an independent contractor and not an agent or employee of the TOWN.
KCAT shall be duly organized, validly existing and in good standing under the laws of
the State of California and has the power to own its properties and to carry on its business
as now owned and operated and as required by this Agreement.
2.2 KCAT Authorization
KCAT has the authority to enter into and perform its obligations under this Agreement.
The Board of Directors and KCAT (or the shareholders, if necessary) have taken all
actions required by law, its articles of incorporation, its bylaws or otherwise to authorize
the execution of this Agreement. The persons signing this Agreement on behalf of
KCAT have the authority to do so.
2.3 E4ual Employment Opportunity
KCAT warrants that it is an equal opportunity employer and shall comply with applicable
regulations governing equal employment opportunity. KCAT shall not discriminate
ATTACHMENT 2
Page 1 of 12
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.
2.4 Compliance With Laws and Regulations
KCAT shall comply with all existing and future TOWN, county, state, and federal laws,
including all Environmental Laws.
2.5 Permits and Licenses
KCAT shall procure and maintain in force and effect all necessary governmental permits
and licenses and give all notices necessary to the due and lawful performance of the work
contemplated herein. KCAT shall pay the currently approved amount for an annual
business license to operate in the TOWN as delineated in the TOWN Master Fee
Schedule, current edition.
ARTICLE 3: TERM OF AGREEMENT
3.1 Term of Agreement
The effective date of this Agreement shall be September 1, 2015. The term of this
Agreement shall be for a period of five years, commencing on September 1, 2015, and
expiring at midnight June 30, 2020. The TOWN shall at its sole discretion extend the
term of this Agreement on a year- to- year basis depending upon the TOWN budget
appropriations for these services. The terms and conditions of this Agreement, including
compensation, shall be applicable during said extension unless the parties mutually agree
upon any changes.
ARTICLE 4: SCOPE OF AGREEMENT
4.1 Scope of Agreement
The Agreement granted to KCAT shall be for the video production of 60 Regular TOWN
Brown Act meetings that include the cablecast of up to twenty -eight (28) Town Council
meetings per calendar year live, generally scheduled on the first and third Tuesday of
each month from the Town Council Chambers as well as up to twenty -eight (28) Town
Planning Commission meetings per calendar year, which generally fall on the 2nd and
4th Wednesday of each month and four (4) additional Committee or Board meetings per
calendar year. The meetings may include special meetings, study sessions, and
rescheduled or continued meetings. The TOWN Manager shall have the authority to
designate a Special TOWN Brown Act meeting or any other Committee/Board meeting
in place of a Regular TOWN Brown Act meeting.
Page 2 of 12
4.2 Administration of Agreement
The TOWN Manager shall administer this Agreement and /or his/her designee, shall
supervise KCAT compliance with the Agreement terms and conditions.
4.3 Ownership of Video Recorded TOWN Brown Act Meetines
All TOWN Brown Act meetings video recorded by KCAT pursuant to this Agreement
shall be the property of TOWN.
ARTICLE 5: DIRECT SERVICES
5.1 General
The video production work to be done by KCAT pursuant to this Agreement shall include
the furnishing of all labor, supervision, equipment, materials, supplies, and all other items
necessary to perform the services required, except as provided elsewhere in this
Agreement. KCAT shall at all times during the term of this Agreement provide quality,
efficient, technical and professional service to the reasonable satisfaction of Town and
shall perform all work required under this Agreement.
5.2 Video Production Schedules
TOWN shall provide a list of all anticipated regular TOWN Brown Act meetings,
including their dates, time and locations for each meeting. KCAT shall establish
schedules for video production of meetings, including set up and take down, and shall
notify TOWN of said schedules.
5.3 Operations and Equipment
KCAT shall be responsible for the management and operation of the video production
services provided pursuant to this Agreement, including but not limited to training and
meeting -to- meeting supervision of operations. 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.
KCAT will arrange for two (2) alternates to act as temporary operators, if KCAT
cannot provide agreed upon services due to illness, emergency, or other reasonable
circumstances. The two (2) alternates shall be mutually agreed upon by KCAT and
the TOWN. Alternates shall be both technically trained and competent to operate
the TOWN's video production equipment. In KCAT's presence, alternates shall work
a minimum of one (1) Council Meeting per year, not to exceed six (6) hours per year,
per alternate, as training on the TOWN's video production equipment.
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6.1
6.2
6.3
6.4
TOWN shall provide all equipment necessary at TOWN Council Chambers to record
TOWN Brown Act meetings under this Agreement. KCAT will provide technical
consultation for the repair, modification, and upgrade of the TOWN -owned video
production equipment. KCAT shall provide all routine maintenance, repair, and
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 Hall and KCAT. Said equipment shall be operated in a safe
manner consistent with reasonable industry standards. 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.
KCAT shall not use TOWN video broadcasting equipment for any other purpose other
than this Agreement, unless written consent is given by the TOWN. Cablecasting and
broadcasting equipment shall be operated at all times by the technical and temporary staff
covered in this Agreement.
KCAT will provide gavel to gavel meeting coverage and is responsible for securing the
video production equipment room after cablecasting, tape duplication, or other activities.
ARTICLE 6: OTHER SERVICES
Play Back
KCAT will air previously recorded meetings covered by this agreement on its
Community Access Channel (Channel 151 KCAT) based on its program /schedule
availability.
Special Events
KCAT will work cooperatively with TOWN staff regarding the live cablecast of any
additional special events at mutually agreed upon price, date, and time.
Liaison With TOWN
KCAT shall maintain on -going liaison with TOWN regarding all video production and
insertion point activities, and any matters relating to the performance of this Agreement,
including complaints.
Records
KCAT shall maintain a general ledger and detailed books of account showing the receipt
and expenditure of all funds received from TOWN for not less than five (5) years
following completion of the work, the receipt of funds and the expenditure of funds 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.
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If an audit conducted by the TOWN demonstrates inappropriate expenditures of public
funds 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 and/or the required follow -up actions.
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.
On or before March 1 st of each year, beginning with March 1, 2016, 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 on said funds. The report shall be submitted to the TOWN
Manager.
6.5 Adjustments to Level of Video Production Services
The TOWN has the right to request additional video production services. Compensation
for any additional video production service shall be pursuant to Article 7 .l. Similarly,
the TOWN has the right to reduce video production services in the event of budgetary
reductions. Any reduction in compensation paid by TOWN would be negotiated and
agreed upon by both parties.
ARTICLE 7: KCAT'S COMPENSATION
7.1 Compensation and Overtime
The TOWN shall compensate KCAT in the amount of $35,000 for the sixty (60) Regular
TOWN Brown Act meetings. The TOWN Manager shall have the authority to designate a
Special TOWN Brown Act meeting in place of a Regular TOWN Brown Act meeting.
The TOWN shall compensate KCAT for meetings exceeding the 60 regular TOWN
Brown Act meetings or special meetings designated by the TOWN manager at $95.00 per
hour. Any such meetings above 60 shall be approved in writing by the Town Manager.
The TOWN shall compensate KCAT for overtime for any TOWN Brown Act meeting
that exceeds four (4) hours at $110.00 per hour.
The TOWN shall compensate KCAT $235 flat fee for the cancelation of any meeting
other than the 60 meetings.
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The TOWN shall compensate KCAT $135 per month as a Server Charge for storage of
archived meetings.
KCAT will provide to the Town at no cost, two (2) recordings of all meetings covered by
this Agreement on broadcast quality DVD. Recordings of meetings shall be given to the
TOWN for its records. Any additional recording requests by the TOWN shall be paid a $
20 per DVD Duplication (mtg. under 2 hrs.) and $30 per DVD Duplication (mtgs. Over 3
hrs.)
The base compensation amount of $35,000.00 shall be adjusted annually each year
beginning July 1 2016, and will be determined by multiplying the percentage change in
the Consumer Price Index for the San Francisco Bay Area, California, USA, as
determined by the United States Department of Labor. Any CPI adjustment will be
annually calculated on each April 1 to take effect July 1. The index used shall be the
index for the most recent full twelve -month period for which the index is available. Any
CPI adjustment can be a decrease as well as an increase based on the above - mentioned
index used, not to exceed +/- 3% per year.
7.2 Public Access Funding
TOWN agrees to pay forward to KCAT any PEG funds within 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 may be amended from time to time.
Notwithstanding the obligation to pay forward PEG funds to KCAT, TOWN shall at all
times retain a PEG funds balance received by TOWN in the amount of $50,000 and said
funds shall be placed in an equipment reserve account. These funds will be made
available, as approved by the TOWN, for major maintenance, replacement or upgrading
of the cablecast and related technology resources in the Town Council chambers.
7.3 Invoices
KCAT shall submit to TOWN by the 15th of each month an invoice for the services
provided during the previous month. Said invoice shall indicate at a minimum the work
performed during the month and the monthly fee, as provided in Article 6.1 herein above.
Recorded meetings for the month invoiced shall be submitted to the TOWN prior to
payment of the invoice.
7.4 Payments
TOWN shall pay quarterly invoices within twenty (20) days after receipt of a complete
and accurate invoice and submission of the required number of recorded copies for
TOWN meetings.
TOWN reserves the right to withhold payment either wholly or partially if said
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electronically recorded audio /visual meeting content is not provided or if KCAT fails to
provide on a consistent basis sufficient qualified personnel for video production
activities.
ARTICLE 8: INDEMNIFICATION, INSURANCE AND BOND
8.1 Indemnification
KCAT shall indemnify and hold harmless TOWN and its officers, officials, employees
and volunteers from and against all claims, damages, losses and expenses including
attorney's fees and litigation expenses arising out of the performance of the work
described herein, caused in whole or in part by any negligent act or omission of KCAT or
anyone directly or indirectly employed by KCAT, except where caused by the active
negligence, sole negligence, or willful misconduct of the TOWN. KCAT's duty to
indemnify and defend shall survive the expiration or earlier termination of the
Agreement.
8.2 Insurance
During the term of this Agreement, KCAT shall carry insurance in accordance with
TOWN requirements and such other insurance as required by law and to protect against
loss from liability imposed by law for damages on account of bodily injury and property
damage. The insurance shall name on the policy, as additional insured, the Town of Los
Gatos, its officers, employees and agents. Insurance coverage with a minimum combined
single limit in an amount established by the Town's Risk Manager which must be
maintained for the duration of this Agreement and the insurance company must provide
the Town with thirty (30) days' written notice of cancellation of the policy. Coverage
provisions, including limits, shall otherwise be in accordance with Town policy.
Lack of insurance does not negate the KCAT's obligation under this Agreement. KCAT
agrees that in the event of loss due to any of the perils for which it has agreed to provide
insurance, KCAT shall look solely to its insurance for recovery, except where caused by
the active negligence, sole negligence, or willful misconduct of the TOWN. KCAT
hereby grants to the TOWN, on behalf of any insurer providing insurance to either KCAT
or TOWN with respect to the services of KCAT herein, a waiver of any right to
subrogation which any such insurer of said KCAT may acquire against the TOWN by
virtue of the payment of any loss under such insurance.
Insurance shall be secured and approved by TOWN's Risk Manager prior to
commencement of work according to this Agreement.
Maintenance of proper insurance coverage is a material element of this Agreement and
failure to maintain or renew coverage or to provide evidence of coverage and/or renewal
may be treated by the TOWN as a material breach of Agreement. KCAT shall forward
the TOWN specifications and forms to KCAT's insurance agent for compliance.
Page 7 of 12
ARTICLE 9: DEFAULT AND REMEDIES
9.1 Events of Default
All provisions of this Agreement to be performed by KCAT are considered material.
Each of the following shall constitute an event of default.
A. Fraud or Deceit. If KCAT practices, or attempts to practice, any fraud or
deceit upon TOWN.
B. Insolvency or Bankruptcy. If KCAT shall at any time during the term of
this Agreement become insolvent, or if proceedings in bankruptcy shall be
instituted by or against KCAT, or if KCAT shall be adjudged bankrupt or
insolvent by any court, or if a receiver or trustee in bankruptcy or a receiver of
any property of KCAT shall be appointed in any suit or proceeding brought by
or against KCAT, or if KCAT shall make an assignment for the benefit of
creditors, then and in each and every such case, TOWN may at its sole
discretion immediately terminate this Agreement upon written notice to
KCAT and without the necessity of suit or other proceeding and avail itself of
any of the various remedies set forth in Article 9.10 herein below or any other
remedies provided by law. KCAT shall provide written notice to TOWN in a
timely manner in the event KCAT files for bankruptcy or takes any other
action as protection from creditors during the term of this Agreement.
C. Failure to Maintain Coverage. If KCAT fails to provide or maintain in full
force and effect the insurance or performance surety requirements pursuant to
Article 8.
D. Failure to Perform. If KCAT ceases to provide video production services as
required under this Agreement for a period of two (2) meetings, for any reason
within the control of KCAT.
E. Failure to Provide Recorded Meetings/Records. If KCAT fails to provide
the required number of copies for each TOWN meeting recorded under this
agreement and/or refuses to provide TOWN with required information and /or
records in a timely manner as provided for in the Agreement.
F. Acts or Omissions. Any other act or omission by KCAT which violates the
terms, conditions, or requirements of this Agreement as it may be amended
from time to time, or any order, directive, rule, or regulation issued thereunder
and which is not corrected or remedied within the time set in the written
notice of violation or, if KCAT cannot reasonably correct or remedy the
breach within the time set forth in such notice, if KCAT should fail to
commence to correct or remedy such violation within the time set forth in
such notice and diligently effect such correction or remedy thereafter.
G. False or Misleading Statements. Any representation or disclosure made to
TOWN by KCAT in connection with or as an inducement to entering into this
Agreement, or any future amendment to this Agreement, which proved to be
false or misleading in any material respect as of the time such representation
or disclosure is made, whether or not any such representation or disclosure
appears as part of this Agreement.
9.2 Breach and Termination
All terms and conditions of this Agreement are material and binding, and failure by
KCAT to perform any portion of the work described herein or any related covenants or
agreements shall be considered a breach of this Agreement. In the event this Agreement
is breached in any manner, TOWN may at its sole option terminate this Agreement no
Page 8 of 12
less than twenty (20) days after written notice is given to KCAT setting forth the breach
and KCAT fails, neglects, or refuses to remedy said breach. KCAT shall thereafter have
no further rights, powers, or privileges against TOWN under or arising out of this
Agreement. In the event a breach does not result in termination, but does result in costs
being incurred by TOWN, said costs shall be deducted from any amounts due or to
become due to KCAT.
In addition to all other remedies and damages provided by law in the event of a breach of
this Agreement, TOWN may, at its sole discretion, assess the actual damage caused by
the breach as the remedy and obtain said remedy through set -off against KCAT's invoice
or by any other appropriate procedure, including but not limited to wholly or partially
withholding payment of any amounts billed to TOWN by KCAT. TOWN may also
provide, directly or through a contract, the services required under this Agreement and
deduct actual costs to TOWN from any amounts due or to become due to KCAT,
including but not limited to start-up costs, labor, material, and equipment. The provisions
of this Article shall not be exclusive, but shall be cumulative and in addition to any other
remedies provided herein or pursuant to law.
In the event TOWN terminates this Agreement as provided herein, KCAT shall meet all
terms and conditions of this Agreement through the effective date of said termination. In
the event there is a transition to a different KCAT, KCAT shall cooperate with TOWN
and any successor KCAT TOWN may select to provide the services required herein. In
the event KCAT fails to comply with the conditions of this paragraph, TOWN may
withhold any compensation due KCAT until KCAT complies.
ARTICLE 10: GENERAL PROVISIONS
10.1 Relationship of Parties
KCAT shall be an independent contractor and not an agent or employee of TOWN.
KCAT shall not represent that KCAT is an agent or employee of TOWN. KCAT shall
not give any person any reason to believe KCAT is an agent or employee of TOWN. No
act of KCAT shall bind or obligate TOWN.
KCAT assumes full and sole responsibility for the payment of all compensation and all
other expenses related to KCAT's personnel, including but not limited to state and federal
income taxes, Social Security contributions, workers compensation, and disability and
unemployment insurance contributions. KCAT shall be responsible for the payment of
all required state and federal taxes. KCAT agrees TOWN shall not be requested or
obligated to withhold from payments to KCAT Social Security contributions or state and
federal income taxes.
KCAT and KCAT's employees shall not be entitled to any employment benefits provided
by TOWN to TOWN employees. In the event KCAT provides similar benefits to
KCAT's employees, KCAT shall be fully responsible for purchasing said benefits
separately and independently of the relationship established between TOWN and KCAT
under this Agreement.
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10.2 Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of California.
10.3 No Self Dealing
Due 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 Government Code 1090, et. seq.
10.4 Project Manager.
The Project Manager for KCAT for the work under this Agreement shall be Melissa
Toren, 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.
10.5 Assignability and Subcontracting
The services to be performed under this Agreement are unique and personal to KCAT.
No portion of these services shall be assigned or subcontracted without the written
consent of the Town.
10.6 Transition to Next Contractor
If the transition of services to another contractor occurs through expiration of term,
default and termination, or otherwise, KCAT will cooperate with TOWN and subsequent
contractor(s) to assist in an orderly transition.
10.7 Reservation of Rights
It is hereby expressly agreed by and between the parties hereto that TOWN shall have,
and there is hereby reserved unto TOWN and to its officers and officials, all rights,
powers, and privileges which might be expressly set out in this Agreement in favor of
TOWN and its officers. The express mention of certain rights, powers, and privileges in
favor of TOWN is not intended to and shall not be deemed or construed to exclude any
other right, power, or privilege in favor of TOWN that might be expressly reserved
herein.
10.8 Non - Waiver
No acquiescence, failure, or neglect of either party to insist upon strict performance of
any or all of the provisions of this Agreement shall be construed to constitute a waiver of
any term, condition, or provision of this Agreement nor of any performance required
Page 10 of 12
hereunder, nor of any remedy, damages, or other liability arising as a result of any failure
of performance, neglect, or inability to perform at any time.
10.9 Severability
If any term or provision of this Agreement shall to any extent be determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement
shall not be affected thereby, and each term and provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
10.10 Survival
Upon the expiration or termination of this Agreement, each party shall be released from
all obligations and liabilities to the other occurring or arising after the date of such
expiration or termination, except that any expiration or termination of this Agreement
shall not relieve KCAT of KCAT's obligations under Articles 8.1, nor shall any such
expiration or termination relieve KCAT from any liability arising from any breach of this
Agreement.
10.11 Waiver of Performance
The parties to this Agreement shall be excused from performance hereunder during the
time and to the extent that they are prevented from performing their respective
responsibilities by an act of God, fire, strike, lockout, or commandeering of materials,
products, plants, or facilities by the state or federal government, when satisfactory
evidence therefore is presented to the other party, provided that it is satisfactorily
established that the non - performance is not due to the fault or neglect of the party not
performing.
10.12 Governing 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.
10.13 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.
10.14 Entire Agreement and Notice
This Agreement, together with the Exhibits attached hereto and incorporated herein by
reference, contains the full, complete, and entire agreement between the parties and
replaces and supersedes all previous agreements, understandings, and arrangements
between the parties with respect to the subject matter hereto. This Agreement may not be
modified except by written agreement expressly authorized by TOWN and as mutually
agreed by the parties. All notices hereunder and communications with respect to this
Agreement shall be in writing and shall be effective upon the mailing thereof by
registered or certified mail, return receipt requested, and postage prepaid as follows:
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To Town:
Town Manager
110 E. Main Street
Los Gatos, CA 95030
To KCAT:
KCAT -TV Station Manager
20 High School Court
Los Gatos, CA 95030
or personally delivered to KCAT to such address or such other address as KCAT
designates in writing to Town.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly
executed this _ day of 2015.
TOWN OF LOS GATOS:
Les White, Interim Town Manager
KCAT -TV
Melissa Toren, Station Manager
APPROVED AS TO FORM:
Robert Schultz, Town Attorney
ATTEST:
Shelley Neis, Clerk Administrator
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