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06-095, KMVT, First Amendment Agreement 0' -0 9s- os: ()%f FIRST AMENDMENT TO AGREEMENT This First Amendment to Service Agreement ("First Amendment") is entered into effective as of this day of June, 2006, by and between the CITY OF CUPERTINO, a municipal corporation ("CITY"), and MOUNTAIN VIEW COMMUNITY TELEVISION (dba KMVT), a non-profit corporation ("CONTRACTOR"). Recitals A. CITY and CONTRACTOR are parties to that certain "Service Agreement Between the City of Cupertino and Mountain View Community Television for Management of Cupertino Public Access Television Programming" dated August 8, 2005 (the "Original Agreement"). B. CITY and CONTRACTOR now desire to amend the Original Agreement to modify certain provisions thereof. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, the parties hereto agree as follows: 1. The provisions of EXHIBIT "B" of the Original Agreement are hereby amended to delete Section 2 to be replaced as follows: In addition, during the Term of this Agreement, for every non-resident producer or crew member of the "Better Part" Cupertino Program (as per EXHIBIT A), CITY shall pay CONTRACTOR the difference between the CONTRACTOR's resident and non-resident yearly Access Fees (the "Access Fee Differential"), as defined in CONTRACTOR's Users' Guide and Access Fee schedule, up to a yearly limit of $5,000 (the "Differential Amount"), with this amount subject to the potential yearly changes defined in Section 4 below. Such "Better Part" producers and crew members shall have the same rights and privileges as all other KMVT access members. CONTRACTOR shall submit a quarterly list of all Access Fee Differential "Better Part" users to the CITY, and the foregoing Access Fee Differential amounts shall be paid the CONTRACTOR by the CITY on a quarterly basis as such fees are accrued. 2. All provisions of the Original Agreement in conflict with the provisions of this First Amendment shall be deemed automatically amended so as to conform with the provisions KMVT/CUP - FY0506 Agreement Page I of this First Amendment which shall control over any conflicting terms. All defined terms used in this First Amendment shall have the same meaning as in the Original Agreement except to the extent that such definitions are specifically changed in this First Amendment. 3. Counterparts: Facsimile Signatures. This Amendment may be executed in counterparts, each of which shall be deemed an original and which together shall constitute one instrument. The signature(s) of any party or parties on this First Amendment transmitted by facsimile shall be deemed the same as an original signature and shall be binding on the party transmitting the same. 4. Modification. Except as modified above, the terms and conditions of the Original Agreement and the First Amendment thereto shall remain unmodified and in full force and effect. In the event of any conflict or inconsistency between the terms of this First Amendment and the terms of the Original Agreement or the First Amendment thereto, the terms of this First Amendment shall control. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date and year first written above. IN WITNESS WHEREOF, the Parties have executed this Agreement. ~ City Attorney CITY OF CUPERTINO ("CITY") By C~ALP tllZOff-lf~ &ifL City Manager r\,. . 1 i/:)) /, . ........ ~t;.e.^ lUff-' KMVT ("C~JRACTOR") By Y KMVT/CUP - FY0506 Agreement Page 2 EXHIBIT liB" COSTS and OBLIGA nONS 1. In consideration for the CONTRACTOR provided services annually, as described in EXHIBIT A, Facility Usage for CITY-sponsored Programs Community Access for Cupertino Residents Cablecasting Bulletin Board Services During the Term of this Agreement, CITY shall pay CONTRACTOR an annual sum of $45,000, payable in 12 equal monthly payments of $3,750, with these amounts subject to the potential yearly changes defined in Section 4 below. 2. In addition, during the Term of this Agreement, for every non-resident producer or crew member of the "Better Part" Cupertino Program (as per EXHIBIT A), CITY shall pay CONTRACTOR the difference between the CONTRACTOR's resident and non-resident yearly Access Fees (the" Access Fee Differential"), as defined in CONTRATOR's Users' Guide and Access Fee schedule, up to a yearly limit of $5,000 (the "Differential Amount"), with this amount subject to the potential yearly changes defined in Section 4 below. Such "Better Part" producers and crew members shall have the same rights and I privileges as all other KMVT access members. In GlSC a Bcttcr P:'1ft uscr dccides to ',vorl, on non Bcttcr Part amount to thc CITY. CONTRACTOR shall submit a quarterly list of all Access Fee Differential "Better Part" users to the CITY, and ~the foregoing Access Fee Differential amounts shall be paid/rcimburscd the CONTRACTOR by each p;uty the CITY on a monthly quarterly basis as such fees are accrued. 3. If, during the Term of this Agreement, the Access Fee Differential amount in any given month is less then 1/12th of the yearly Differential Amount, the CITY may utilize such amounts for retaining CONTRACTOR services and equipment for special events at CONTRACTORs then published rates for cities, up to the total Differential Amount. By the end of each year of this Agreement, the CITY will pay CONTRACTOR the full Differential Amount, whether it is utilized or not by one of the two forgoing methods. In case of non-utilization, CONTRACTOR shall carry forward the corresponding services/equipment credit in favor of the CITY during the Term of this Agreement. 4. Starting at the beginning of the second year of this Agreement, and annually thereafter during the remainder of the Term of this Agreement, the above prices will change by the percentage amount of the Consumer Price Index for the San Francisco-OakIand-San Jose Area for the previous year, as published by the United States Bureau of Labor Statistics. KMVT/CUP FY0506 Agreement Exhibit B Page lof2 5. CONTRACfOR shall keep a running total of Cupertino Programs and other Cupertino residents daily usage statistics and shall provide CITY annual summaries of such statistics. KMVT/CUP FY0506 Agreement Exhibit B Page 2 of 2