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Montague Cable Advisory Committee
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Provider Contract Draft
AGREEMENT BETWEEN
THE TOWN OF MONTAGUE
AND
PROVIDER

January 1, 2006
Montague, Massachusetts


Section 1 --- DEFINITIONS

For the purpose of this Agreement, the following words, terms, phrases, and their derivations shall have the meanings given herein, unless the context clearly requires a different meaning. When not inconsistent with the context, the masculine pronoun includes the feminine pronoun, words used in the present tense in- cludes the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word shall is always mandatory and not merely directory, except where noted. Where the following definitions are in conflict with definitions in law, it is the express intent that the definition in federal law shall take precedence.

(a) Agreement: this agreement, unless stated explicitly otherwise

(b) Cable Service: The one-way transmission to Subscribers of video programming or Other Programming Services, together with Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

(c) Cable Television System or Cable System: A facility consisting of a set of closed transmission paths 19 and associated Signal generation, reception and control equipment designed to provide Cable Service (in- cluding video programming) to multiple Subscribers within a community unless such system does not use 2 any public rights of way.

(d) Channel or Video Channel: A portion of the electromagnetic frequency spectrum which is used in a 23 Cable System and which is capable of delivering a television channel. With respect to PEG Channel, I-Net and I-Loop channel requirements, the definition of channel shall also mean a minimum allocation of 6 Mhz of bandwidth.

(e) Contracting Authority: The Board of Selectmen of the Town of Montague

(f) Educational Channel: Any channel, or portion thereof, which has been allocated for use by the Public Schools or its designee(s).

(g) Effective Date: January 1, 2006

(h) FCC: The acronym for the Federal Communications Commission or any successor agency.

(i) Governmental and Public Channel: Any channel, or portion thereof, which has been allocated for use by the Town, the Contracting Authority or its designee(s).

(j) Institutional Network: A communication network which is constructed and operated by the cable operator and which is generally available only to Subscribers who are not residential Subscribers.

(k) PEG: The acronym for Public, Educational, and Governmental; used in conjunction with Access Chan- nels, support and facilities.

(l) PEG Access Channels: Any Channel(s) made available for the presentation of PEG Access program- ming.

(m) Programming or Video Programming: Programming provided by, or generally considered comparable to programming provided by, a television broadcast station.

(n) PROVIDER:

(o) Public Access Channel(s): Any channel, or portion thereof, which has been allocated for use by mem bers of the community to communicate their activities, opinions and ideas without interference or censor- ship through the creation of cable television programming and other means.

(p) Public Schools: The Gill-Montague Regional School District.

(q) Renewal License: License between Town and Comcast of Massachusetts/Virginia, Inc. effective on August 25, 2003 for a period of ten (10) years.

(r) Subscriber: Any person, firm, corporation or other entity who or which elects to subscribe to for any purpose, a Cable Service provided by the Licensee by means of, or in connection with, the Cable Televi- sion System.

(s) Town: The Town of Montague, Massachusetts.

Section 2: DESIGNATION OF ACCESS PROVIDER

Subject to the terms and conditions herein, the Contracting Authority hereby designates ______ as the Designated Access Provider effective January, 1, 2006.

Section 3: DURATION

This Agreement shall be effective upon the date of its execution for an initial period of three (3) years.

Section 4: TERMINATION

4.1 This Agreement shall terminate upon the adjudication of the bankruptcy of PROVIDER.

4.2 This Agreement may terminate if the Contracting Authority determines that PROVIDER has failed to fulfill its responsibilities pursuant to the terms and conditions herein.

(a) Before any such termination, provider shall be given a minimum of sixty (60) days advance written notice, which notice shall set forth the reasons for the proposed termination and shall advise that it will be provided an opportunity to be heard by the Contracting Authority before any such action is taken. Said notice shall state the date, time, and place of such hearing. In no event shall such hearing be held less than thirty (30) days following delivery of such notice to

(b) At said hearing, PROVIDER will be provided an opportunity to respond to the reasons for the proposed termination and to discuss them with the Contracting Authority. The PROVIDER shall be entitled to reply in writing to said reasons, a copy of which response shall be delivered to the Contracting Authority no later than thirty (30) days following said hearing. The Contracting Authority shall make no decision concerning termination until it has considered said response.

4.3. The PROVIDER may terminate this Agreement by a majority vote of its Board of Director at a regular meeting where this item shall appear on the agenda, as specified by the By-Laws of the Corporation.

(a) PROVIDER shall provide the Contracting Authority with at least sixty (60) days advance written notice of its intention to terminate this Agreement. Said notice shall set forth the reasons for the proposed termination and shall advise the Contracting Authority that it shall be provided an opportunity to be heard by the Board of Directors regarding such proposed termination before any action is taken. Said notice shall state the date time, and place at which said hearing shall occur. In no event shall said hearing be held less than thirty (30) days following receipt of such notice to the Contracting Authority.

(b) At said hearing, the Contracting Authority shall be provided an opportunity to respond to the reasons for the proposed termination and an opportunity to discuss them with the Board of Directors. The Contracting Authority shall be entitled to reply in writing to said causes and reasons for termination, a copy of which shall be delivered to the Board of Directors no later than thirty (30) days following said hearing. The Board of Directors shall make no decision concerning termination until it has considered said response.

4.4. All equipment purchased by the Town or its designee(s) under the terms of this license shall be the property of the Town. Upon termination of this Agreement, equipment so purchased cannot be used to satisfy any present or future indebtedness of PROVIDER and is subject to continuing access by the Town, including the right of removal.

Section 5: RENEWAL

This Agreement may be renewed for five (5) years upon the expiration of this Agreement subject to positive performance reviews and Town Meeting approval. The process leading to renewal of this Agreement shall be initiated by a written request from PROVIDER to the Contracting Authority at least one year prior to the end of this Agreement. The request shall include comments on the current Agreement and any items for discussion as part of the renewal process.

Section 6. OBLIGATIONS OF PROVIDER

6.1. PROVIDER will maintain its status as a 501(c)(3) non-profit educational corporation eligible for exemption from taxes under federal and state law.

6.2. PROVIDER will maintain a governance structure (Board of Directors) which recognizes its obligations to the Town. the schools and the community.

6.3. The purpose of public access is to allow members of the community to communicate their activities, opinions and ideas without interference or censorship through the creation of cable television programming and other means. With respect to the Governmental and Public Access Channel, PROVIDER will

(a) be responsible for programming free from censorship of program content;

(b) develop and promote programming including but not limited to cultural, literary, educational, governmental and public affairs programming on the Governmental and Public Access Channel (Channel 15);

(c) make the public access facilities and channels available in a non-discriminatory manner to encourage the exchange of ideas and opinions on a broad range of topics;

(d) be responsible for fund-raising to supplement Public Access operations; and

(e) be responsible for consistent outreach to the various segments of the community to encourage use of the public access channel.

(f) cablecast all Town Meetings, all Board of Selectmen meetings and, as determined by the MCAC in consultation with the provider, other important government meetings or public hearings.

6.4. With respect to the Educational Access Channel (currently Channel 17), the PROVIDER shall work with the Contracting Authority and the Public Schools respectively to agree mutually on the responsibilities of PROVIDER, which may include asking PROVIDER to follow the policies and guidelines for programming the Educational Channel established by the Contracting Authority and the Public Schools respectively.

6.5. PROVIDER shall manage and operate the PEG Access channels, equipment and facilities on a non- discriminatory, non-commercial basis. In managing and operating the channels, PROVIDER will carry out such activities as

(a) holding workshops for the purpose of teaching television skills to individuals and community groups;

(b) managing funds designated for PEG access television;

(c) scheduling PEG cablecasting;

(d) managing and maintaining PEG facilities and equipment;

(e) being responsible for ensuring an acceptable level of technical quality of all programs cablecast on its system, pursuant to FCC regulations. PROVIDER is not obligated to cablecast any PEG Access program that does not meet the FCC technical standards. However, a decision not to cablecast a program due to technical problems shall in no way involve consideration of the actual content of the program itself. PROVIDER shall not be held responsible for technical problems under control of the cable system.

6.6. PROVIDER shall promulgate regulations governing PEG access including but not limited to levels of service, use of equipment and facilities, training programs, membership, outreach activities, cablecasting procedures and operating policies and procedures.

6.7. PROVIDER shall maintain a studio in Montague and make the studio available on a fixed schedule.

6.8. PROVIDER shall maintain a log of programming that is cablecast on the PEG channels, and a record of PEG producers. Logs shall be available for public inspection and retained by PROVIDER for a minimum of three (3) years.

6.9.Provider shall, at its own expense, provide detailed quarterly reports to the Cable Advisory Committee and the Board of Selectmen regarding activities, income and expenses. The line-item financial report shall include at a minimum all Montague-specific capital expenditures, direct and indirect personnel expenses, and a current inventory reflecting equipment purchased and retired and expenditure of resources. The report will serve as a means of evaluating the performance of PROVIDER and identifying new goals and directions. This quarterly report shall contain at least the following items:

(a) a summary of the activities in the development of the PEG access program;

(b) a summary of input received from community members and organizations;

(c) the most recent Montague-specific budget report as provided to PROVIDER Board;

(d) changes in staff roster or staff job descriptions from prior reports;

(e) description of outreach presentations, mailings, surveys and results;

(f) description of fundraising;

(g) description of training;

(h) description of facility and equipment use;

(i) description of PEG access programming by channel; and PEG programming developed by PROVIDER staff.

6.10. PROVIDER shall maintain a written complaint/compliment file available to the general public

6.11. The President and Administrative Director of PROVIDER shall make themselves available from time to time to advise the Cable Advisory Committee and Contracting Authority on matters concerning PEG Access.

6.12. PROVIDER shall engage in outreach activities designed to inform Town residents and organizations about the availability and use of PEG access channels and to encourage their use.

6.13. PROVIDER will keep a current database of access programs in its library and make it available during normal business hours.

6.14. PROVIDER will indemnify and hold harmless the Town and its elected officials, appointed boards and commissions, employees, and agents from and against all losses, damages, liabilities, claims, demands, judgments, settlements, costs, and expenses including penalties, interest and reasonable attorneys’ fees and disbursements resulting from or arising out of a) any breach by PROVIDER of its obligations under this Agreement; b) any personal injury or property damage occurring after the effective date of this Agreement arising out of the use by any person of the facilities or equipment owned or leased by PROVIDER (other than personal injury or property damage resulting from the negligence or willful misconduct of the Town or its elected officials, members of appointed boards and commissions, employees or agents); or c) any personnel grievances concerning the hiring, firing and conditions of employment of PROVIDER employees. Except where PROVIDER is primarily at fault under Massachusetts statute and case law, or under common law principles, PROVIDER’s obligation under this section shall not apply to claims, demands, actions or suits arising from the Town’s government or educational access cablecasting activities.

6.15. PROVIDER shall require every access user to indemnify the Town and PROVIDER and hold both harmless against any claims arising out of any program or program material produced and/or cablecast, including but not limited to, claims in the nature of libel, slander, invasion of privacy of publicity rights, non-compliance with applicable laws, license fees and the unauthorized use of copyrighted material.

6.16. PROVIDER shall provide a community calendar on the public access channel(s) for the purpose of announcing programming and access services, making public service announcements, and allowing the Town, schools or other non-profit organizations to make certain announcements. The community calendar shall be updated regularly and appropriately to serve cable subscribers in the best fashion. The community calendar will be transmitted when regular programming is not scheduled.

6.17. PROVIDER shall maintain workers’ compensation, liability, general comprehensive and non-owned vehicle liability insurance coverage in force throughout the course of this Agreement naming the Town as co-insured and will provide the Town with certificates of insurance annually.

6.18. Provider shall assume the cost and responsibility for insuring Town-owned equipment used to meet the local access needs.

6.19. PROVIDER shall be responsible for locating and arranging for use of its facilities, including payment of rent, for the PEG access purposes under this contract, except that PROVIDER shall not have to pay for or maintain any Town or school facilities used for PEG access purposes.

6.20. PROVIDER shall maintain line-item accounting, budget, and business systems for the management, operation, protection, investment, and oversight of the Montague facility and community access services that comply with generally accepted accounting practices.

6.21. PROVIDER shall provide community access services to those who live, work or attend school in Montague on a first-come, first-served, non-discriminatory basis using PROVIDER facility, equipment, staff and other resources as PROVIDER deems necessary and appropriate to fulfill community access management needs.

6.22. PROVIDER shall make every reasonable effort to recruit Montague residents to serve on the Board of Directors.

6.23. PROVIDER shall make every reasonable effort to develop Montague-based programming.

6.24. PROVIDER shall participate annually, within ninety (90) days of the anniversary of the contract, in a public performance evaluation overseen by the Cable Advisory Committee. The purpose will be to determine whether the provider is performing its duties pursuant to this contract, including, without limitation, public access programming, managing the annual payments for PEG access, training residents, community outreach, scheduling the PEG programming, and any other requirements as set forth in the contract.

Section 7: OBLIGATIONS OF THE CONTRACTING AUTHORITY

7.1. The Contracting Authority shall insure that the terms and financial arrangements regarding PEG access in the Renewal License with Comcast are executed and implemented in a timely manner. The PROVIDER shall receive funding support provided in the License Agreement between the Contracting Authority and Comcast of Massachusetts/Virginia, Inc. effective on August 25, 2003.

7.2. The Contracting Authority and the Cable Advisory Committee shall be responsible for advising PROVIDER on policies, guidelines and programming the governmental portion of the public/governmental access channel.

7.3. PROVIDER may at any time file a written complaint with the Contracting Authority concerning operations of the cable system that have a bearing on PROVIDER’s performance under this Contract. The Contracting Authority shall investigate said complaints pursuant to the manner spelled out in the Renewal License and/or other rules or regulations established by the Town.

7.4. The Contracting Authority shall designate an individual to serve on the Board of Directors of PROVIDER.

7.5. The Town is a governmental entity that is subject to the Public Records laws of the Commonwealth. The Town shall comply with that law and shall honor all public records requests submitted to it relating to all aspects of this Agreement.

7.6. The Contracting Authority retains the right to audit PROVIDER’s financial affairs at the Town’s expense. PROVIDER shall cooperate in the preparation of such audit.

7.7. The Town shall not consider the content of public access programming, including the producer’s choice of subject matter and the point of view expressed, in making any decision regarding the allocation or appropriation of funds for PROVIDER, or the termination of this contract.

7.8. The Town shall, at its sole cost and expense, but only to the extent lawful for local governments, indemnify and hold harmless PROVIDER against any claims arising out of the Town’s breach of this contract. Indemnified expenses shall include but not be limited to all out-of-pocket expenses such as attorney’s fees.

Section 8. OBLIGATIONS OF THE PUBLIC SCHOOLS

8.1. The Public Schools shall designate an individual to serve on the Board of Directors of PROVIDER.

Section 9: PERFORMANCE EVALUATION HEARINGS

Annually, PROVIDER shall take part in a Performance Evaluation Hearing overseen by the Cable Advisory Committee. PROVIDER will be provided ninety (90) days notice of such hearing. The purpose of said hearing shall be to determine whether PROVIDER is performing its responsibilities pursuant to this Agreement including, without limitation, public access programming, managing the annual payments for PEG access, training residents and scheduling the PEG channels. The Cable Advisory Committee shall prepare a report after each said hearing, which shall be available to PROVIDER and the general public. Problem areas identified at the public hearings and in the Town’s report shall be addressed by PROVIDER in a timely manner. After the first three annual performance evaluation hearings, the frequency of said hearings may be changed if PROVIDER is renewed for five (5) years.

Section 10: SEVERABILITY

If any section, sentence, paragraph, term or provision of this Agreement is determined to be illegal, invalid or unconstitutional by any court of competent jurisdiction in the Commonwealth of Massachusetts or by any state or federal regulatory agency having jurisdiction thereof, such determination shall have no effect on the validity of any other Section, sentence, paragraph, term or provision, hereof.

Section 11: MISCELLANEOUS

11.1. At all times during the Agreement term, should the parties hereto agree that equipment necessary for operation of an Institutional Network is to be located within the facilities of PROVIDER, the Town shall have the right to establish and enforce, and PROVIDER will comply with and implement, rules and procedures that the Town deems appropriate and necessary for purposes of data security, including physically locking, and regulating access to, whatever space may house the equipment holding or transmitting such data. The Town will be given physical access to such space(s) during the Agreement term.

11.2. This Agreement is the entire Agreement of the parties and supersedes all prior negotiations, Agreements, or contracts whether written or oral.

11.3. PROVIDER shall not assign or transfer any interest in this Agreement without prior written consent of the Town, provided, however, that nothing herein shall prevent PROVIDER from subcontracting the performance of any provision or obligation required by this Contract, as long as PROVIDER remains primarily responsible to the Town for the performance of such provision or obligation.

11.4. This Agreement may be amended upon the mutual Agreement of the Town and PROVIDER. Amendments shall be in writing and effective upon execution by duly qualified officers of the Town and PROVIDER.

11.5. This Agreement shall be interpreted in accordance with the laws of the Commonwealth of Massachusetts. The parties hereto subject themselves to the jurisdiction of the courts of the Commonwealth of Massachusetts, county of Franklin, for the resolution of any dispute, action or suit arising in connection with this Agreement.

11.6. Any notice required to be given or served upon any party in connection with this Agreement shall be in writing and shall be deemed to have been given and received a) three business days after the registered or certified letter containing the notice, properly addressed, with the postage prepaid, is deposited in the United States Mail; or b) if made in any other manner, upon the actual delivery to and receipt by the party to whom it is addressed. Notice shall be given to the parties at the following addresses:


SIGNATURE PAGE

For the Town:


__________________________________ _________________________________
Chair, Board of Selectmen


____________________________________________________________________
Selectman


____________________________________________________________________
Selectman


For the PROVIDER


_____________________________________________________________________
President, Board of Directors