Search

b. City’s shared community television production facility, located at 9 Riverside Street, with
production areas, editing facilities and furnished office. Any management shall be subject
to oversight and the right to control by the City.

c, City’s community television automation broadcast and scheduling systems as
dedicated to the Public Access Television (currently channel 96)

d. City’s shared field production equipment (cameras, audio equipment, cabling, etc.)

e. All other video equipment, office furniture, computers, office equipment, and telephones
found in these facilities and identified on Appendix “A” (“Inventory”).

Contractor agrees to fully, faithfully and timely perform all of the activities and services set
forth in the work plan (“Scope of Work”) and budget attached to this contract and fully
incorporated herein as Exhibit “B”. Before the renewal date of the agreement, Contractor shall
prepare and submit for review by the City a Work Plan containing operational goals,
objectives, benchmarks and a narrative description of actual operations planned for the
upcoming year. The foregoing shall address public access facility operations including but not
limited to training, programming, production of special events programming by Contractor
staff, equipment testing and maintenance activity and other customary access facility
operations. The City may give guidance and make reasonable suggestions regarding goals and
objectives contained in the Work Plan, and Contractor shall reasonably consider and address
possible incorporation of such City suggestions, but such action shall not constitute authority
or control over Contractor or Contractor’s decisions regarding management, operation and
content of the public access television channel.

Contractor shall pay for pro-rated public utility and maintenance services to the facility,
including, but not limited to water, telephone, electric, heating, and janitorial/custodial. The
City shall provide maintenance (e.g. plumbing repairs, structural repairs, roof repairs, HVAC
repairs, trash pickup, road and landscape maintenance as necessary) of the facility.
Contractor and its employees and agents shall use and maintain the facilities and equipment in
a safe, secure and workmanlike manner.

Subject to the availability of appropriated funds, for which the City’s Contract Manager shall
seek legislative approval, City shall provide maintenance and repairs or when necessary
replacement, as and when reasonably requested by Contractor of the property noted in
Appendix A, as follows:

a. With respect to the facilities referenced in Section 3.B.1.a, such maintenance and repairs
shall include all necessary plumbing, media distribution, electrical, structural, roof, and
HVAC repairs, and security. For security, City shall provide a functioning security alarm
system sufficient to deter potential and reasonable security risks.

b. With respect to the Inventory referenced in Appendix A, and all video or other equipment,
office furniture, computers, office equipment, and telephones acquired after the execution
date of this contract and used by Contractor in the performance of its mission to operate
and manage the public access television resource (together with the Inventory, referred to
hereafter as “Equipment”), the City shall be responsible for funding and facilitating
maintenance and repairs on such Equipment if it is owned by the City; however, if such
Equipment was acquired by a Contractor or a third party {e.g., cable operator) with a duty
to fund or perform maintenance and repairs on such Equipment, then the City shall be
responsible for facilitating, as opposed to funding, such maintenance and repairs. The

4|Page

process for securing the necessary maintenance and repairs of such Equipment, should
same become necessary, shall be as follows: Upon reasonable request and notice by
Contractor, the City shall endeavor to facilitate and/or fund (depending on the owner of
such Equipment) the repair of non-essential video, production, editing and broadcast
equipment within thirty (30) days; however, for essential video, production, editing and
broadcast equipment, computers, etc. that are essential and necessary for the full
performance of Contractor’s obligations hereunder, the City shall endeavor to make
arrangements for repairs not later than ten (10} days from the date such repair is requested.
If City and Contractor mutually agree that replacement of such non-essential or necessary
Equipment is necessary or advisable, to initiate the procurement process for such
replacement as soon as possible, but not later than ten (10) days from the date it is
determined that replacement equipment is needed. Contractor shall be responsible for
maintaining any equipment Contractor voluntarily acquires on its own initiative for
equipment above and beyond the equipment provided by the City and/or cable company.

Notwithstanding the text above, the parties agree that nothing herein shall relieve
Contractor of its obligations to seek monetary and, if appropriate, non-monetary
damages for any equipment that is broken or destroyed due to the negligence or willful
misconduct of any employee, agent, contractor or invitee of Contractor, or any producer or
other user of facilities.

5. Contractor will not knowingly permit (and will institute protections to help prevent), any
facility it manages or the cable channel under its control to be used for the production or
dissemination, regardless of the technology used, of any material that can be legally defined as
Obscene, found to be defamation, libel and/or slander; in violation of copyright or other
intellectual property law, commercial speech inconsistent with the requirements for non-
commercial public access programming; material in violation of privacy or misappropriation
laws; material lacking proper consents and/or authorizations; or other unlawful material,
subject to and in accordance with applicable law regarding what constitutes unlawful
programming and the due process that may be applicable with respect to limitations,
restrictions, prohibitions, remedies, sanctions, settlement agreements and other dispositions
regarding such programming.

a. Contractor shall make good faith efforts to prevent the airing of such obscene
programming and shall suspend, any such programming subject to applicable law, if and when
Contractor receives actual and reasonable knowledge of the unlawful content and/or
character of that programming.

b. Contractor shall require program producers and or program sponsors to sign a user and/or
producer/sponsor form (however termed) by which the producer(s)/sponsor(s)/user(s) accept
responsibility for liabilities, if any, arising from the cablecasting of their productions or
sponsored programming, including but not limited to liabilities for defamation, copyright
violation and other possible liabilities, and in such form the producer(s)/sponsor(s)/user(s)
shall acknowledge that they shall not hold the City and/or Contractor liable, and shall
indemnify the City and/or Contractor, for their own productions and or sponsored
programming.

S|Page

6.

10.

The public access channels are not intended to be a public forum, however, the public does
have some rights of access consistent with lawful access center operating guidelines that may
be established as indicated in Denver Area Educational Telecommunications Consortium, Inc.
v. FCC, 116 S.Ct. 2374 (1996); therefore in enforcing this provision, Contractor will follow
procedures which are legally appropriate for the regulation of speech in such a quasi- forum,
including procedures which conform to the access center procedures identified by the United
States Supreme Court in Denver Area Educational Telecommunications Consortium, Inc. v.
FCC, 116 S.Ct. 2374 (1996) and Freedman v. Maryland, 85 S.Ct. 734 (1965)

Contractor shall make best efforts to notify public access producers that city-owned
programming is not available to producers for re-airing on public access channels without
explicit authorization from the City, to the extent consistent with any public records or other
applicable law.

Contractor shall provide equipment and channel time to qualified producers who have
completed all necessary training and whose skills and knowledge meet minimum criteria
established by the Contractor, approved on a content-neutral, nondiscriminatory basis.
Contractor shall, in general, provide equipment and channel time on a non-discriminatory
basis, subject to reasonable scheduling practices including but not limited to channel time
scheduling preferences for locally produced programming as reasonably defined by
Contractor.

Contractor may make use of the facilities and equipment under its custody, care and control
for generating additional funding subject to applicable law. Revenues generated from such
activities shall be spent for non-commercial purposes only and pursuant to this contract. All
such activities must be in conformity with Contractor’s tax status and must serve to further the
goal of promoting the public’s use and access to cable television or other cable-related media
and not interfere with the financial support of public access, the use of the public access facility
and or channel time by the users.

Contractor shall adopt and follow proper accounting, procurement and employment policies
and practices and maintain documentation of expenditures of City Operating Funds provided
under this Agreement, including but not limited to documentation of the following:

a. Evidence that competitive procurement processes were used for purchases

b. Maintenance of receiving or shipping documents related to invoices to ensure that types
and quantities of goods received agree with the invoice before payment is processed.

c. Cancelled invoices (when checks are signed and payments released)

d. Transactions are posted in the Contractor’s accounting system (i.e. general ledger,
transactions detail by account, budget to actual, profit and loss and balance sheet).

e. Written contracts or subcontracts, including but not limited to contracts for professional
services or contracted labor, that describe the work, services or products to be provided,
commencement date, term of contract, and compensation or fees to be paid.

f. Employee personnel records including each employee’s hire date, job description, job
acceptance with beginning salary, payroll changes, and termination date.

6|Page

11. Contractor shall maintain all records required under this Agreement for three years following
the termination of this Agreement, or until the conclusion of any audit or legal proceeding
regarding this Agreement, whichever is later.

12. Contractor shall design and implement internal controls to provide reasonable assurance of
compliance with contractual obligations, to safeguard assets of the Contractor and assets of the
City, and to ensure that processes and reports are in compliance with generally accepted
accounting principles. Such controls should be implemented in a cost effective manner.

C. Production Training and Programming

1. Contractor shall educate/train requesting individuals, institutions, non-profit and community
based organizations in the production of non-commercial television programs. To this end,
Contractor shall:

a.

b.

create and provide training curriculum for various levels of television production
proficiency;

make training available to financially and physically disadvantaged citizens, including the
use of fee discounts, if applicable;

enter industry and community awards competitions as appropriate and feasible.

further to the Contractor’s training activities, Contractor understands and agrees it is the
responsibility of the individual producers to use the training received to produce their own
programs, and although the Contractor provides training, the Contractor is not responsible
for providing technical assistance to individual third party producers in their actual
production of programming, as said producers will be responsible for generating their own
programming.

2. Curricula and other training programs and training activities mentioned above shall be
described in the annual Work Plan and identify measurable criteria that are agreed upon by the
parties and that insures the work in these areas meets or exceeds current standards and
practices generally accepted in the field of public access television.

3. Contractor Production of Programming

a.

In addition to training volunteer producers and members to produce their own public access
programming, the Contractor staff shall produce a reasonable amount of staff-produced
local programming about important Nashua events. The Contractor may exercise
reasonable judgement regarding the selection of material for Contractor coverage and/or
production, however, the Contractor shall develop criteria consistent with such
programming informing the Nashua community about matters relating to Nashua
community, historic and cultural events, Nashua organizations, businesses and individuals,
including but not limited to coverage of the following Nashua special events, subject to
availability of resources, such as:

Nashua Memorial Day Parade

Fourth of July
Summer Fun

7|[Page

b.

Nashua Art Walk
Nashua Veterans Day Parade
Nashua Holiday Stroll

Survey to facilitate Contractor production of local programming material:

To facilitate Contractor production of local programming of interest to the Nashua
community, the Contractor will circulate a community media survey to Nashua
residents, organizations and community leaders to ascertain local programming
interests. Contractor staff will be guided by such survey results in prioritizing subjects for
staff-produced local programming in accordance with the above. Contractor production
of programming consistent with interests identified in the Survey shall be a priority
hereunder, consistent with Contractor retaining control over programming production
activities and decisions.

Importation of Non-commercial material of interest to the Nashua community:

In addition to producing programming as indicated in above; and in addition to cablecasting
of programming produced by public access producers tn accordance with the terms hereof,
the Contractor may import non-local, non-commercial programming and sponsor
cablecasting of same on the public access channel, if and when additional programming
material is beneficial for programming purposes. Although the Contractor shall retain
control over its own programming decisions, Contractor will make good faith efforts to
import such non-commercial programming that relates to issues of interest identified in the
community surveys implemented under paragraph (b) above.

D. Development and Implementation of Non-City Revenue-Generating Activities

Contractor shall explore the opportunity to pursue, develop and implement non-City revenue
generating activities, which may include, but not be limited to:

a.
b.

é.

identifying grant opportunities and applying for grant funding;

implementing traditional fund-raising activities, such as charity auctions and other special
events;

developing and holding additional, fee-based advanced training seminars and workshops;
and

promotion sponsorship and underwriting of programs consistent with underwriting
standards for noncommercial, tax exempt television stations;

charging of customary and reasonable producer and/or membership fees.

Specific goals and benchmarks to measure success shall be established by the City subject to
consultation with the Contractor and agreed upon by both parties, and shall be such that the
work in these areas meet or exceed current standards and practices generally accepted in the
field of public access television and shall at least show goals and benchmarks for the major
public access television outputs, including but not limited to hours of programming,
programming produced by access center staff, hours of training, and number of people
involved in different activities of the public access center.

8|Page

3. The Contractor recognizes that the City highly discourages any revenue enhancing effort that
relies in whole or in part on establishment of or an increase in existing user fees for access
courses and programs.

E. Development and Implementation of an Operations Development Plan

Contractor shall: develop a multi-year phased plan as necessary to support and expand operations
(including supplementing or expanding any dedicated or shared equipment provided by the City).
The plan should include sufficient detail to assist the City and Contractor tn estimating the
approximate funds necessary annually to support and expand ongoing operations, and to meet
objectives including:

a. increasing frequency, depth, and quality of broadcasts;

b. increasing constituent satisfaction with content and delivery;

c. increasing public participation and involvement in public access television activities; and

d. increasing the technical! quality of productions and cablecasts.

SECTION 4. REPORTING REQUIREMENTS.
A. Budget Preparation and Submission

Contractor shall be accountable to the Contract Manager and shall at all times maintain full, accurate
and current records documenting the level of Contractor’s services provided under this contract. The
Contract Manager may change the reporting schedule with 14 working days notification to the
Contractor.

At least twenty (20) days prior to the beginning of its fiscal year, Contractor shall provide Contract
Manager with a copy of its proposed budget for services under the contract, showing Contractor’s
plans for expenditure of all funds. Contract Manager shall provide comments (if needed} to
Contractor within twenty-one (21) business days of receipt of the proposed budget, or notification of
the necessity of an extension for review and comment by other City staff or agents.

Within 90 days following the beginning of the Contractor’s fiscal year, the approved budget adopted
by the Contractor board must be submitted to the Contract Manager. As stated in Section 4 — Reporting
Requirements, City shall receive as part of the reports submitted by Contractor, a reconciled report of
actual expenditures from the previous fiscal year.

Contractor’s Bylaws, other governing documents or policies shall address written policies and
procedures that specify the processes by which the budget is developed, approved, implemented,
monitored and revised, and maintain supporting documentation for budgeted amounts.

B. Budget monitoring and procedures

Contractor shall compare actual expenditures to budgeted amounts for Operating Funds on at least
a quarterly basis. This comparison should identify budget

9|/Page

variances, which shall be investigated and reported, and corrective actions taken, as well as
preparation of projections of annual expenditures in order to anticipate areas of shortfall or
surpluses expected at year end.

. Quarterly Activity Report.

Contractor shall provide to the CTAB quarterly reports during regularly scheduled monthly public
meetings. Each quarterly report must include, at a minimum:
1. the total number of programming hours made available to the public on each channel and
through the use of other technologies such as webcasting;
2. asummary of the programming sources and hours for each channel, including:
a. new programming produced using City facilities or equipment, including original
and repeated playback;
b. events, programs and any other form of community announcements including bulletin
board slides;
3. a report of all complaints received by the Contractor during the reporting period, including
copies of any written complaints; and
4. any other information that either the City or the Contractor believes relevant to show
achievement of stated performance goals.

. Annual Report
Contractor shall file no later than the sixtieth (60th) day after the close of the fiscal year an annual
report containing, at a minimum:

|. the Contractor’s organizational chart, listing LLC Members and staff by function;

2. the number of people employed by Contractor, both full and part-time/number of independent

contractors;

an annual inventory summary;

a summary of quarterly programming source & hours;

5. aschedule of all fees and charges levied by Contractor to the City, with the percentage change
from the previous annual report (and all fees and charges levied upon producers & users if
any);

6. asummary of all programming outages experienced, noting root causes and remedial actions;

bo

7. acopy of the complaint and appeal procedures used by the Contractor, any changes made, a
general description of the types of complaints and appeals received and the dispositions
thereof:

8. acopy of the Operations Development plan;

9. the number and types of persons using the Facilities, such as organizational or individual,
represented as totals and as percentages of the overall number of users, categorized by place
of residency (and such other categories as were used in the annual viewer survey, and in the
contract initiation survey);

10. a copy of equipment maintenance logs,

11. a list of training classes, schedules, and rates (if any);

12. the annual fundraising report, detailing all funding sources and how the funds were allocated;

13. annual survey of producers & viewing community(see Section 3.C.3.b), which shall include
but not be limited to demographic information and customer satisfaction; survey instrument

10|Page

will be mutually agreeable between Contractor and the Contract Manager; results of survey
shall be presented to the CTAB; and

14, such other information as the City may reasonably request at least thirty (30) days prior to
report.

E. Annual Financial Statement

No later than the ninetieth (90th) day after the close of the Contractor’s fiscal year, Contractor
shall present to the City a written annual report (the “Annual Financial Report”). The Annual
Financial Report shall present a composite picture of Contractor’s operations for the 12-month
period that constitutes the Contractor’s fiscal year, and shall include: a reviewed or audited
financial statement or tax return for Contractor as prepared for the Internal Revenue Service.
Review or Audit return shall be prepared by the contractors Certified Public Accountant according
to generally accepted accounting principles;

SECTION 5. CITY OBLIGATIONS.

A. Contract Administration. The PEG Program Department, in collaboration with the Purchasing
Manager, shall manage this contract on behalf of the City. The Contract Manager will coordinate
compliance and performance determinations regarding this contract.

B. Liability of City for Funding Under Contract Limited.

1. Notwithstanding any other provision of this contract, the total of all payments to be made to
Contractor under this contract shall not exceed a total of $506,800 through the end of the term,
or such other amount as City Board of Aldermen may approve (“Operating Funds”). Funding
in the amount of $175,000 is pending approval in the FY2023 operating budget of the City’s
PEG public access television account. Upon written agreement, the parties may decide to
extend the contract for additional one-year or alternative terms. The Contractor and the City
each acknowledge and agree that payment of the Operating Funds constitutes full and
satisfactory financial consideration for the performance of all the Contractor’s obligations
under this contract.

2. The Contractor and the City acknowledge and agree that the City’s funding obligations to
Contractor as noted in Section 5.B.1, above, are contingent upon the City’s receipt of payments
according to provisions of a cable franchise agreement negotiated with a local cable service
provider(s). These provisions require the local cable operator to finance PEG access activities
through the payment of “PEG access support grants” and franchise fees, which may be reduced
under or pursuant to state or federal legislation. If for reasons beyond the City’s control, the
City does not receive payments to provide Contractor the Operating Funds agreed upon in this
contract, and necessary for Contractor’s full and complete performance under this contract,
then the City shall notify Contractor in writing no later than the twenty-first (21st) business
day after it becomes aware of such shortfall in funding. In the event of such shortfall, the City
may either reduce the amount allocated (as reasonably prorated) as Operating Funds during the
period of shortfall (and similarly reduce, the manner or cost of Contractor’s services to be
provided hereunder), or either of them may terminate this contract as provided in section 21.

3. This contract does not obligate the City to remit payment from its General Fund, or from any
other moneys or credits belonging to the City. The City shall not be liable for, and Contractor
releases, indemnifies and hold the City harmless from, any claims or demands for:

a. costs paid or expenses reimbursed by any third party;

b. expenses incurred either prior to or after the term of this contract, and the parties agree that
this does not apply to a hold-over period, as the Contractor shall be paid Operating Funds
during any holder-over period;

c. expenses incurred for items or services outside the scope of services to be provided by
Contractor; or

d. any costs or liabilities arising from the acts or omissions of contractor, its employees,
agents, contractors and/or guests and invitees.

C. Network Access. A number of institutional network access points, and origination points for
cablecast to the cable operator (better known as “drops”) are installed throughout the city as part
of the City infrastructure or under a provision of the standard cable operator franchise. These
“drops” are intended to allow the production of live, on-site cablecasting. Contractor may, at its
discretion and free of charge, make use of these drops in the production of live cablecast
productions, subject to City guidelines and/or supervision. Contractor shall coordinate and
schedule use of the network through the PEG Program Department. Contractor shall be
responsible for any damage to such drops to the extent Contractor may have been the party causing
such damage if negligently or willfully caused.

SECTION 6. PAYMENTS TO CONTRACTOR.

A. Method of Payment

At the beginning of each calendar quarter, the City shall pay Contractor one-fourth of the annual
Operating Funds allocated for the contract year. The first payment to Contractor following
execution of this contract shall be due within thirty (30) days of the first day of the quarter.
Thereafter, Contractor shall submit an invoice for annual or quarterly payment (as agreed by the
parties) to the Contract Manager prior to the beginning of each calendar quarter (April 1, July |
October |, and January 1) or new fiscal year. City shall pay Contractor this amount within thirty
(30) days of receipt of the request for payment.

B. Expenditure of Funds/Carry-over Funding

The Contractor shall expend funds provided by the City solely for Public Access purposes
identified and authorized in this Agreement. Funds not expended in one funding year shall be
carried over for said purposes into succeeding years. Upon termination or expiration of this
Agreement, all funds of any kind received pursuant to this Agreement from the City and not
expended by Contractor shall be returned to the City or carried over into a subsequent agreement
between the City and the contractor or its successor. The Contractor shall provide for such financial
control and accounting procedures as are necessary to assure proper disbursement and accounting
for funds received from the City.

C. Contract Close Out

12|Page

1. Contractor shall submit a final financial report, including a final expenditure report following the
close of the time period covered by the last invoice requesting a drawdown of funds under this
agreement, to the Contract Manager not later than the sixtieth (60th) day after the termination of
this contract.

2. Upon termination of this contract, any unused funds, rebates, credits (or interest earned) on
Operating Funds or Capital Equipment Funding held by Contractor must be returned to the City.
Subject to the approval of the Contract Manager and the City, Contractor may withhold Operating
Funds sufficient to cover the actual cost incurred to preserve and maintain operations after
Contractor receives notice of contract termination but before the actual termination date but in no
event shall such withholding of funds result in withholding funds which combined with prior
payments exceeds the contract payment amount set forth in Section 5.B above, as due for the
twelve months covered by this contract.

SECTION 7, USE OF ACCESS FACILITIES, EQUIPMENT AND TRAINING.

A. Contractor shall, within sixty (60) days after execution of this contract, adopt a comprehensive set
of policies and procedures for the use of all facilities, equipment and available training, which is
funded in whole or in part by, or provided as services under this Contract. A copy of the
comprehensive policies and procedures shall be provided to the City no later than the thirtieth
(30th) day prior to adoption or updating, for advisory Local Franchising Authority review and
consultation.

B. It is the sole responsibility of the Contractor to ascertain and establish rules, procedures and
guidelines appropriate for the use of facilities, equipment and training consistent with this contract,
subject to providing the City with reasonable advance opportunity for consultation on same. The
Contractor may amend these rules, procedures and guidelines as the need may arise.

C. The Contractor shall provide to City a copy of its policies and procedures, and shall provide to
City any proposed changes to the policies and procedures that require CTAB approval at least ten
(10) days prior to the date the proposed changes are to be approved by CTAB.

SECTION 8. OWNERSHIP OF PROPERTY.

A. Contractor shall notify Contract Manager in writing within five (5) calendar days of its receipt of
any durable property purchased with contract funds to enable the City to identify and record such
property as fixed assets of the City, or as such asset classifications as appropriate. The Contractor
shall:

1. maintain custody and control over all property provided by the City;

2. maintain detailed property records; and

3. provide assistance with PEG program staff to perform an annual physical inventory of shared
equipment. Contractor shall provide an annual inventory of any non-city owned equipment,
including funding sources and/or donors.

Any property purchased hereunder using contract funds shall be property of the City.

13 |Page