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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.

LiabilityofCityforFundingUnderContractLimited.

i

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 $XX,000 through the end of the term,
or such other amount as City Board of Aldermen may approve (“Operating Funds”). Funding
in the amount of $XX,000 was approved in the FYX XXX 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.

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.

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. casts paid or cxpenses 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.

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

on Ges a

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.

MethodofPayment

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 1 October 1, and January 1) or new fiscal year. City shall pay Contractor this
amount within thirty (30) days of receipt of the request for payment.

ExpenditureofFunds/Carry-overFunding

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.

ContractCloseOut

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 draw
down 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 comprchensive 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

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(30th) day prior to adoption or updating, for advisory Local Franchising Authority review and
consultation.

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.

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 Board approval at least ten
(10) days prior to the date the proposed changes are to be approved by the Board of Directors.

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:

| .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.

Contractor shall notify the Contract Manager in writing not later than twenty-four (24) hours
following any loss of or damage to City facilities or equipment. Contractor shall seek to recover
from parties responsible for such loss or damage, and shall inform the Contract Manager in writing
of status of the Contractor’s efforts not later than the tenth (10th) calendar day following the date
of initial notice of such loss or damage. Contractor shall provide progress reports on its efforts to
seek remuneration for such loss or damage to the Contract Manager once every thirty (30) calendar
days thereafter, continuing for such duration as the Contract Manager believes is appropriate.

SECTION 9. CITY AUDIT AND INSPECTION.

The Contractor agrees that authorized representatives of the City shall have access to, and the right
to audit, examine, or reproduce, any and all records or documents of the Contractor related to the
contractor’s performance under this contract. Upon termination of this contract, the Contractor shall
provide the originals of all such records to the City’s Contract Manager, and shall retain copies of
such records as required by law. The Contractor shall refund the City for any unauthorized uses of
Operating Funds or Capital Equipment Funding disclosed by an audit.) The City reserves whatever
lawful rights it has to participate in and or otherwise pursue ae tion or damages payments in

connection with the foregoing.
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SECTION 10. PERFORMANCE REPORTS AND EVALUATIONS.

A. The Contractor shall submit periodic reports as specificd in section 4 above (“Reporting
Requirements”) in a format approved by the City.

B. The Contractor shall furnish such statements, records, reports, data and information to the City at
such times and in such form as the Contract Manager may reasonably require.

C. The City may perform on-site evaluations of Contractor’s performance under this Contract at any
time upon twenty four (24) hours written notice (including email or other electronically delivered
notice).

D. The Contract Manager may perform an on-site audit of books, records and equipment during
business hours, upon twenty four (24) hours written notice (including email or other electronically
delivered notice).

E. The Contract Manager may conduct annual performance evaluations based on measurables
reflected in the Contractor’s annual Work Plan to be conducted sixty (60) days prior to the end of
the contract term.

SECTION 11. REPRESENTATIONS AND WARRANTIES.

A. The Contractor represents and warrants that:

1. All information, reports and data furnished to the City by Contractor are complete and
accurate as of the date furnished to the City, and that Contractor shall promptly notify the
Contract Manager in the event of any material change affecting the accuracy or
completeness;

2. All financial statements and information furnished to the City are complete, accurately reflect
the financial condition of the Contractor on the date shown on said report, accurately show
the results of the operation for the period covered by the report, and that since said date there
has been no material change, adverse or otherwise, in the financial condition of the Contractor;

3. Contractor has promptly notified the Contract Manager of any and all pending or threatened
legal proceedings against the Contractor;

4. Contractor shall take all reasonable measures to ensure that the City’s equipment and
facilities for public access will not be used for commercial purposes;

5. None of the provisions herein violates, or is in conflict with, the authority under which the
Contractor is doing business, or the terms of any obligation or agreement of the Contractor;

6. |The Contractor has the power to enter into this Contract and accept payments hereunder, and
the Contractor has taken all necessary action to authorize such acceptance under the terms
and conditions of this Contract;

7. None of the assets of the Contractor is subject to any lien or encumbrance of any character
except for current taxes, except as shown in the financial statements furnished by the
Contractor to the City;

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bet

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ei Contractor nor any member of its Beard presently has any interest, and the
we ontractor and its-Beard agree that they shall not acquire any interest, direct or indirect, that
conflicts in any manner or degree with the performance of Contractor’s services, as described
herein. Contractor further warrants that during the term of this contract no person having
such interest shall be employed or appointed as a member of its Board of Directors;
No member of Contractor’s Board or its staff, subcontractors or employees shall possess any
interest in, or use their position for a purpose that is, or gives the appearance of being, motivated
by desire for private gain for themselves, or others, particularly those with which they have
family, business, or other ties;

Neither Contractor’s Board or employees, nor City staff or officials, shall be afforded
preferential treatment with respect to resources solely under the control of Contractor;
No officer, member, or employee of the City and no member of its governing body who
exercises any functions or responsibilities in the review or approval of the undertaking or
carrying out of this contract, shall: (i) participate in any decision relating to the contract
which affects his personal interest or the interest of any corporation, partnership, or association
in which he has a personal financial direct or indirect interest; or (ii) have any personal
financial interest, direct or indirect, in this contract or the proceeds.

a. Contractor shall make reasonable responses in writing or verbally, depending on how the
inquiry was made to the Contractor, to public inquiries regarding its operations.

b. Before Contractor’s Board adopts any rules and procedures governing the provision of
services pursuant to this Contract, all interested parties, such as active producers, shall be
given an opportunity to be heard at a Board meeting.

c. Each of these representations and warranties shall be continuing in nature and shall be
deemed to be reaffirmed each time the Contractor accepts payment for services provided
under this contract.

SECTION 12. INDEMNIFICATION AND INSURANCE.

As

C. Contractor for itself and its agents, employees, and any authorized subcontractors, shall defend,
indemnify and hold the City, its successors, assigns, officers, employees and elected officials,
harmless from and against any and all claims, demands, suits, causes of action and judgments, whether
in contract or in tort or otherwise (including negligence and strict liability), arising out of, incident to,
concerming or resulting from the performance of any services under this contract or the

The Contractor agrees to hold the City, its officers, agents, employees, and assigned
volunteers harmless of any and all actions, claims, demands, costs, damages and liabilities on
account of or arising out of the City's payments to the same of the funds referred to in Section
6 of this Agreement.

The Contractor shall hold the City and its officers, agents, employees and assigned volunteers
harmless from and defend and indemnify them against any and all actions, claims, demands
and liability arising from the negligence or other legal fault of the governing body, officers,
agents, employees and assigned volunteers of the Contractor.

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negligence or willful misconduct of Contractor, its agents employees, and/or subcontractors, in the
performance of services under this contract, including, but not limited to, claims for:
1. damage to or loss of the property of any person (including but not limited to Contractor,
its agents, officers, cmployees and subcontractors, and third parties);
2. death, bodily injury, illness, disease, worker’s compensation, loss of services, or loss of
income or wages to any person (including but not limited to the agents, officers and employees
of Contractor; and
3. violations of any laws, rules regulations, procedures and policies of the Federal, State and
local governments, including any claims arising out of any content or program material produced
and/or broadcast, including but not limited to, claims in the nature of libel, slander, invasion or
privacy of publicity rights, non-compliance with applicable laws, license fees and the
unauthorized use of copyrighted material.

D. Contractor shall not be obligated under this section to indemnify and hold the City harmless for
claims, damages, and losses, if any, to the extent that the claim, damage, or loss was caused by the
negligence or willful misconduct of the City.

E. The Contractor shall, at its own expense, obtain and maintain for the duration of this
Agreement insurance indemnifying the City and itself from and against all claims for liability,
injury or damage to persons or property causcd by the use of the Public Access facility and
equipment by the governing body, officers, agents, employees and assigned volunteers of the
Contractor. Such insurance shall not be less than One Million Dollars ($1,000,000.00) for
bodily injury or death to any one person or property damage resulting from any one
occurrence, with a total of Two Million Dollars ($2,000,000.00) per occurrence. The policy
shall name the City and its officers, agents, employees and assigned volunteers as additional

insured.
PB, shall at its own expe provide motor vehiole insurance for a
sed vehicles of atleast $1,000,000 pefoccurrence for bodilyN
lage. olicy shall name the~City and its officer: T

assigned volunteers as ad. ] insured.

G. The Contractor shall, at its own expense, maintain workers ray oie in ae mee A
with rine ae AL by New pe bee g law. Cty chm gure oth Af Hawi Ca att 2 fOr S ball US€.

ELK Uber Be all hod andsemenJhut for He te levies oF ty Lic
H. The ‘Contractor shall, at its ‘Bpue, paths insurance on any not -City owned or donated

equipment.

I. The Contractor shall provide a Certificate of Insurance with the types and amounts of
coverage required herein within fourteen (14) calendar days of notification of award, unless
otherwise specified. The Certificate of Insurance, and annual updates, shall be mailed to the
following address:

City of Nashua

Risk Management Office
Attn: Jennifer Deshais

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229 Main Street — City Hall
Nashua, New Hampshire 03060

The Contractor shall instruct its insurance agent and/or insurance carrier to require that no
insurance certificates shall be cancelled without a minimum of thirty (30) days prior written notice
to the City.

H. The Contractor shall not commence work under this contract until it has obtained all
required insurance and until such insurance has been approved by the City of Nashua Risk
Management Office and the Contract Manager; this contract shall be deemed voidable by the City
if proof of insurance is not submitted within fourteen (14) working days of the execution of this
contract,

I. The required insurance must be written by a company licensed to do business in the State of New
Hampshire at the time the policy is issued, and all insurance (other than Worker’s Compensation)
shall name the City, its departments, employees and agents and assigned volunteers as an
additional insured.

J. The City reserves the right to review the insurance requirements of this section during the effective
period of the contract and to adjust required insurance coverages and their limits when deemed
necessary and prudent by the City’s Purchasing Manager based upon changes in statutory law,
court decisions, or the claims history of the industry and/or Contractor.

K. Equipment Insurance. The City will maintain all risk property insurance (e.g., fire, flood, disaster,
ctc.) on all public access television production equipment provided for use by Contractor or
purchased with funds or funding resulting from this contract, unless the City determines that the
equipment is insured by another entity, such as a cable operator. Nothing in this section shall
abrogate the City’s and any cable franchisee’s responsibility or obligation to maintain, repair
and/or replace such cquipment at City’s or cable franchisce’s own expense, as provided in section
4 of this contract, when the loss is not covered by insurance. Contractor shall be responsible for thef-
deductible where the City has actually made a claim under,aminsurance policy. Any hefdrtable urle~

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\nabrae fen x | The. Calys pol Ky ¢ beak’.

SECTION 13. WORKFORCE. og fespontib uy a fhe.
A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the

services that they will perform under the contract. The Contractor shall employ its Nashua public

access workers /, ge remeptoyees—and—not as independent contractors, to«the-extent-requiredby
ienbislaa. AKL ; | < oe i.
vi etek. als aon

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B. If the City or the City’s representative notifies the Contractor that any worker is incompetent, 7

disorderly or disobedient, has knowingly or repeatedly violated safety regulations, or was under
the influence of alcohol or drugs on the job, the Contractor shall immediately*take steps to lawfully
remove or suspend such worker from contract services, and/or provide other lawful remedies
and/or sanctions that are found appropriate in light of the totality of circumstances; and if said
worker is removed or suspended lawfully, Contractor may not employ such worker again on contract
services without the City’s prior written consent, subject to applicable law.

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SECTION 14. COMPLIANCE WITH APPLICABLE LAW, INCLUDING HEALTH,
SAFETY, AND ENVIRONMENTAL REGULATIONS,

The Contractor, and its respective employees, shall comply fully with all applicable federal, state, and
local laws, including but not limited to health, safcty, and environmental laws, ordinances, rules and
regulations, including but not limited to those promulgated by the City and by the Occupational Safety
and Health Administration (OSHA), in the performance of the services required under this contract. In
case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and
hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties
and liability of every kind arising from the breach of the Contractor’s obligations under this paragraph
(collectively, “Indemnified Claims”). Notwithstanding anything to the contrary, the Contractor shall
have no liability to the City and no obligation to indemnify and hold the City harmless if any claim,
demand, suit, action, judgment, fine, penalty or liability is caused by the City’s failure to satisfy or perform
its obligations under this contract, including the City’s promise to maintain the access facility used by
Contractor substantially in accordance with legally required regulations.

SECTION 15. POLITICAL ADVERTISING.

No funds received by the Contractor from the City or as a result of services provided under this contract,
shall be used for political advertising. Political advertising includes, but is not limited to, any
communication with the public to further the appointment, election, defeat or removal of any applicant,
incumbent, or candidate for public office, or any communication with the public to influence the
passage, defeat or final content of any federal, state, or legislation, however, the foregoing is intended to
apply to political advertisements, and not apply to bona fide political speech. The contractor shall
comply with any and all laws applicable to 501(c)3 nonprofits not supporting or opposing candidates or
intervening in campaigns, subject to members of the public, but not the contractor, having lawful public
access rights relative to bona fide political speech that is not advertising.

SECTION 16. RIGHTS TO PROPOSAL, CONTRACTUAL MATERIAL, AND
COPYRIGHTABLE MATERIAL.

When copyrightable documents, audio/video productions or any materials are produced by Contractor
for the purpose of providing services under this contract, the program producer and City shall have joint
ownership of any copyrighted materials and the City is hereby granted a perpetual, royalty free license
to these copyrighted materials for any municipal purpose (other than commercial exploitation) The
parties agree that the term ‘commercial exploitation’ shall not restrict City's ability to allow the public to
obtain copies of the materials upon payment of customary and reasonable duplication fees. In the event
the Contractor is the producer of a program, programs produced by the Contractor hereunder shall be
deemed works for hire in which both the Contractor and the City shall share joint copyright.

SECTION 17. INDEPENDENT CONTRACTOR.
The contract shall not be construed as creating an employer/employee relationship, a partnership, or a

joint venture. The Contractor’s services shall be those of an independent contractor as between the
City and the contractor. The Contractor agrees and understands that the contract does not grant any

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rights or privileges established for employees of the City and Contractor is expected to have sufficient
autonomy with respect to implementation of details to satisfy applicable criteria with respect to being
an independent contractor.

SECTION 18. SUBCONTRACTING. or, — dg,

Notunthetandiang Gordracters disclosed use- oF mlicpeablent Corpuctors in iTS RFP
Contractor may not subcontract for the performance of any of Contractor’s services without written
approval of the City, except for independent videography services on a case by case basis. Any purported
subcontract made in violation of this section is null and void.

SECTION 19. CONTRACTOR CHANGES.

es bewbershi p
Contractor shall notify the Contract Manager of any change in the Contractor's Board-of Direetors-or-of-
the-Gontractor’s-Executive-Director_assigned-+to-Nashua, within ten (10) working days of its occurrence.
Contractor shall notify Contract Manager of any change in Contractor’s corporate structure, or any
Board of Director resolution affecting performance of this Contract, within ten (10) working days of its
occurrence.

SECTION 20. SUSPENSION OF FUNDING,

In the event that Contractor fails to timely and properly perform any of its obligations under this
contract, the City, without limiting any rights it may otherwise have, may withhold further payments to
the Contractor. The Contract Manager shall give Contractor notice in writing of its decision to suspend
funding. Such notice shall be given by certificd mail return receipt requested, hand delivery, or
facsimile communication to the Contractor’s executive director assigned to the Nashua studio. The
notice shall identify the nature of the default and the action required for cure. If the default has been

days, the City may terminate this contract under section 21 below, or exercise such other remedies thirty
available to the City under law or in equity. However, upon reasonable written request of Contractor, the
City shall afford Contractor a reasonable and fair opportunity to be heard on the matter.

SECTION 21. TERMINATION.
A. The City may terminate this contract for cause if Contractor:

fails to cure a default as noted in section 20;

materially breaches any provision of this contract;

is in a financial condition that endangers the performance of this contract;

is delinquent, in payment of taxes or of costs of performance of this contract in the ordinary
course of business.

Pee

B. Either party may terminate this contract for convenience by giving at least sixty (60) calendar days
notice in writing to the other party. At the end of sixty (60) days, Contractor will be paid an
amount not to exceed its total accrued pro rated costs for services covered under this contract
during such sixty (60) day period, with such costs being the pro rated amount of the contract

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payment set forth in Section 5.B above. This payment shall be decreased by any payments made
in advance to Contractor for the sixty (60) days.

C. Upon receipt of notice of termination, the Contractor shall cancel, withdraw, or otherwise
terminate any outstanding orders or subcontracts relating to the performance Contractor’s
obligations under this contract. The City shall not be liable to the Contractor or Contractor’s
creditors for any expenses, encumbrances or obligations whatsoever, incurred after the date
Contractor reccives notice of termination, Failure to terminate outstanding orders or subcontracts
relating to the performance of this contractlis a material breach of this contract. +
re wy Hours, Cty Chad@ be hola hor pe ae {er wclile
SECTION 22. MODIFICATIONS. Secvites onde cel) by tonbredlo up rtacoush a sie m
Lerwwmatior. alény sai wy cer te/experges pul! te tad)
The contract can be modified or amended only in writing and signed by both parties. No pre-printed or Purhes
similar terms on any Contractor invoice, order or other document shall have any force or effect to ur bug 2b,
change the terms, covenants, and conditions of the contract, 4ermaatrn hb é

SECTION 23. INTERPRETATION.

The contract is intended by the parties as a final, complete and exclusive statement of the terms of their
agreement except that i) the parties agree to carry out their obligations hereunder in a manner subject to
and consistent with the cable franchise between the City of Nashua and Comcast or its successor(s) as in
effect during the term of this Agreement, and said cable franchise is incorporated herein by reference;
and ii) Contractor shall also be bound by any commitments in its reply to the City’s Request for
Proposal dated XXX, attached hereto as Exhibit XX XX, and said reply to the RFP shall be incorporated
herein by reference, and in the event of any variation between said reply to the RFP and this contract,
the City shall have the option of applying the more stringent terms. No course of prior dealing between
the parties or course of performance or usage of the trade shall be relevant to supplement or explain any
term used in the contract.

SECTION 24. CHOICE OF LAW AND VENUE.

If a dispute arises out of or relates to the contract, or the breach thereof, the parties agree to negotiate prior
to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll
the running of a statute of limitations or to seek injunctive relief. Either party may make a written request
for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the
request or such later period as agreed by the parties. Each party shall include, at a minimum, onc (1)
senior level individual with decision-making authority regarding the dispute. The purpose of this and
any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within
thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of
the dispute, they may pursue any legal remedies as may be available.

SECTION 25. NOTIFICATION OF ACTION BROUGHT.

In the event that any claim, demand, suit or other legal action, including without limitations, any
communications concerning copyright infringement, or criminal indictment is brought by any person(s),

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