AGREEMENT
BY AND BETWEEN
THE TOWN OF WAREHAM
AND
WAREHAM COMMUNITY TELEVISION, INC.
This Agreement is made this ___ day of _________________, 2006, by and between the Town of Wareham, Massachusetts, a municipal corporation, acting through its Board of Selectmen (hereinafter also referred to as the "Town"), and Wareham Community Television, Inc. (hereinafter also referred to as “WCTV”), a nonprofit corporation duly established under the laws of the Commonwealth of Massachusetts, who agree as follows:
RECITALS
WHEREAS, the Town of Wareham (hereinafter also referred to as the “Town”) granted a Cable Television Renewal License to Comcast of Massachusetts, I, Inc, (now operating as Comcast) for a ten (10) year term from April 1, 2005 through March 31, 2015 (References to Comcast in this Agreement shall apply to any and all transferees or successors to Comcast);
WHEREAS, the respective cable television license referenced above provides to the Town and its residents certain PEG Access Channels, together with funding and support to the Town and/or its designee (i.e. an access corporation) for PEG Access operations, facilities and equipment;
WHEREAS, WCTV has stated its interest in providing PEG Access programming, services, facilities and equipment to the Town, its residents, and other Wareham persons or institutions (collectively hereinafter also referred to as “Access Users”);
WHEREAS, the Town, pursuant to and consistent with its authority as a municipal corporation and a cable franchising/licensing authority under applicable federal and state law, and the provisions of Article 6 of the License, enters into this Agreement for the provision by WCTV of PEG Access programming, services, facilities and equipment to the Town and Access Users, pursuant to the terms of this Agreement and applicable law;
NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties agree as follows:
SECTION 1. PURPOSE OF AGREEMENT
The purpose of this Agreement is for the provision of PEG Access programming, services, facilities and equipment pursuant to the terms of this Agreement and applicable law.
SECTION 2. TERM
The term of this Agreement shall be from the date referenced above until March 31, 2015, unless earlier terminated as provided herein. This Agreement may be extended by a written instrument signed by the authorized representative(s) of both parties.
SECTION 3. SCOPE OF SERVICES - PEG ACCESS PROGRAMMING,
SERVICES, FACILITIES AND EQUIPMENT
WCTV shall provide Public, Educational and Government (“PEG”) Access programming (all Access programming shall require a Wareham sponsor), services, facilities and equipment to the Town of Wareham and Access Users (Wareham residents and persons associated with a Wareham business or organization), consistent with the funds provided to WCTV pursuant to this Agreement and the reasonable availability of Access personnel, contractors and volunteers, and in accordance with applicable law and the operation of a Section 501(c)(3) tax exempt organization. (Unless otherwise provided in writing by the Board of Selectmen, said Access programming shall include Public, Educational and Government Access programming.) The services,
facilities and equipment provided by WCTV shall be provided to Access Users on a first come, first serve, non-discriminatory. (See Section 9 below regarding specific Access studio hours.) The access programming, services, facilities and equipment shall, consistent with the funds available to WCTV, include the following responsibilities:
(a) Schedule, operate and maintain the PEG channels provided in accordance with the respective cable licenses. WCTV shall coordinate and cooperate with the Wareham Public Schools with respect to operation of the Educational Access Channel, unless otherwise directed by the Issuing Authority.
(b) All programming on the PEG Access Channels shall comply with applicable laws and regulations. When there is a dedicated Educational Access Channel and/or a dedicated Government Access Channel, that/those channels shall not be used for Public Access programming or programming unrelated to Educational Access or Government Access, respectively;
(c) Responsibly manage the annual funding provided to and raised by WCTV, including the funding provided pursuant to the Renewal License;
(d) Operate and maintain a Public Access studio, and purchase and/or lease equipment with the funds provided to and raised by WCTV, including the funding provided pursuant to Section 7 below;
(e) Conduct outreach and recruitment efforts and activities to increase membership and Access Users;
(f) Conduct training programs in the skills necessary to produce quality PEG Access programming. At a minimum, training programs shall be conducted on an average of once per week over the course of each year;
(g) Provide technical assistance to Access Users, using Access Corporation staff and volunteers;
(h) Provide access to production and post-production equipment for Access Users;
(i) Establish rules, procedures and guidelines (including written Access User agreements, which shall be required for all Access Users) for use of the PEG Access Channels, facilities and equipment;
(j) Cablecast all public meetings of the Wareham Board of Selectmen, the Wareham School Committee and the Wareham Town Meeting, unless otherwise requested by the respective government body or unable to do so due to circumstances beyond the reasonable control of WCTV (the obligation to cablecast these meetings shall remain regardless of the specific amount of funding available to WCTV), and such other Town of Wareham meetings as requested, upon reasonable notice, by the respective government body and the Board of Selectmen consistent with the funding provided WCTV pursuant to this Agreement and the reasonable availability of Access personnel, contractors, and/or volunteers. (Reasonable notice, which does not
have to be written notice, shall be deemed to be ten (10) business days. If the requested coverage of a government meeting is less than ten (10) business days, WCTV shall reasonably attempt to comply with such request, working out any equipment and staffing scheduling to the best of its ability. The Issuing Authority retains the right to establish priority with respect to the cablecasting of government meetings. WCTV shall comply with any lawful rules and reasonable requirements of the respective government body with respect to the camera and sound coverage of a meeting. Nothing contained in this subsection is intended to interfere with the rights of any person to videotape a governmental meeting pursuant to the Open Meeting Law;
(k) WCTV shall, upon a timely request of the Board of Selectmen or the Town Administrator provide at no cost to the Town one (1) “dvd” (or other appropriate media) copy of a government meeting previously cablecast by WCTV, to the extent available;
(l) Assist the Wareham Public Schools, if requested by the Superintendent of Schools and the Issuing Authority, with Educational Access programming, including the provision of technical assistance (it is not intent of this Agreement that WCTV shall directly or indirectly provide for or fund a media director or teacher. No such staffing or funding shall be provided or made without written approval of the Board of Selectmen,, which approval shall be in the sole discretion of the Board of Selectmen; and
(m) Accomplish such other tasks relating to the operation, scheduling and/or management of the PEG Access Channels, facilities and equipment as necessary and appropriate.
(n) With respect to dues for members of the WCTV, there shall be provision for the waiver of dues for reasons of hardship. Fees shall be reduced or eliminated for students of the Warham Public Schools or for a Wareham resident attending any other school up through high school.
SECTION 4. PROVIDING OPEN AND EQUAL ACCESS TO ACCESS USERS
WCTV agrees to keep the Public Access Channel open to all potential Access Users regardless of their viewpoint, subject to FCC regulations and other applicable laws and regulations. Neither the Town of placeCityWareham, any other governmental entity, nor WCTV shall have the authority to control the content of programming placed on the Public Access Channel(s) so long as such programming is lawful. WCTV shall develop and enforce policies and procedures which are designed to promote local use of the channel(s) and make programming accessible to residents, consistent with such time, manner, and place regulations, including safe harbor provisions, as are appropriate to provide for and promote the use of PEG Access Channels,
equipment and facilities.
SECTION 5. NON-COMMERCIAL PROGRAMMING
(a) All Access programming cablecast by WCTV shall be non-commercial.
(b) Nothing in the Agreement shall prohibit WCTV from including an appropriate underwriting acknowledgment before or after a Public (but not government or educational) Access program, to the extent otherwise not prohibited by applicable law and or the terms of a cable license.
(c) WCTV may charge a reasonable fee for the following services:
(i) services customarily provided to Access Users by a PEG access corporation for a fee; and
(ii) services customarily provided to third parties for a fee, including tape dubbing (i.e. the provision of videotapes/dvds of particular access programs), to the extent otherwise not prohibited by applicable law.
SECTION 6. COPYRIGHT CLEARANCE
WCTV shall itself obtain, or require the respective Access User to obtain, all rights to all material cablecast and clearances from broadcast stations, networks, sponsors, music licensing organizations' representatives, and without limitation from the foregoing, from any and all other person(s) as may be necessary to transmit its or their program material over the Access Channel in a lawful manner.
SECTION 7. FUNDING AND EQUIPMENT OF THE ACCESS CORPORATION
(a) The Town shall provide WCTV with the following operational funding:
(i) The Town shall, within ________________ days of the execution of this Access Agreement, provide a payment to WCTV in the amount of ________________Thousand Dollars, to be paid from PEG Access funding payments paid to date by Comcast to the Town, pursuant to Section 6.5 of the Comcast Renewal License.
(ii) The Town shall, beginning with the quarterly PEG Access funding payment due to the Town by February 15, 2006 (provided by Comcast pursuant to Section 6.5 of the Comcast Renewal License) provide WCTV with PEG Access Support funding in the amount of 3.75% (out of the 4.5% provided to the Town) of Comcast’s Gross Annual Revenues. The Board of Selectmen shall, in its sole discretion, have the right to increase said PEG Access Support funding to a maximum of 4.00% at any time. The Board of Selectmen may, subsequent to any such increase in the percentage support, lower said funding amount to no lower than 3.75%, but
any such decrease shall not be effective until the fifth quarterly payment after written notification of said decrease. Said PEG Access funding shall be provided quarterly to WCTV by the Town through 2008, and from 2009 through the expiration of the Comcast Renewal License in 2015 shall be provided semi-annually by the Town to WCTV, consistent with the provisions of Section 6.5(b) of the Comcast Renewal License. Said funding shall be provided by the Town to WCTV within thirty (30) days of receipt by the Town from Comcast. In lieu of the Town providing said funding to WCTV, the Board of Selectmen may, in its discretion, instruct Comcast (or its successor), in writing, to make said PEG Access Support payments directly to WCTV.
(iii) The Town shall provide WCTV with PEG Access funding provided by any future cable licensee in an equitable manner as reasonably determined by the Board of Selectmen. In lieu of the Town providing said funding to WCTV, the Board of Selectmen may, in its discretion, instruct said cable licensee, in writing, to make said PEG Access Support payment directly to WCTV.
(b) The Town shall provide WCTV with the _____________________Thousand Dollars ($_________________) in PEG Access Capital Funding within thirty (30) days of the execution of this Access Agreement.
(c) The Town shall provide WCTV with all equipment acquired by the Town from Comcast pursuant to Section 6.8 of the Comcast Renewal License. (An inventory of said equipment is attached hereto as Appendix A.)
(d) WCTV shall be responsible for the maintenance and repair of all WCTV facilities
and equipment, including all equipment provided to WCTV pursuant to Subparagraph (c)above.
(e) If requested by the Town, WCTV shall, within a reasonable time, not to exceed thirty (30) days provide copies of invoices for and/or inventories (including models and serial numbers) of all equipment acquired and/or owned by WCTV.
(f) It is further agreed that WCTV shall be responsible for providing and installing PEG Access equipment, including cameras and cablecasting equipment) at the placePlaceNameWareham PlaceTypeTown Hall and other such municipal and/or school buildings as designated by the Board of Selectmen. WCTV’s obligation pursuant to this Subparagraph (f) shall be consistent with and limited by the funds provided WCTV pursuant to this Access Agreement. The Board of Selectmen shall provide WCTV with adequate advanced notice of said equipment needs, and WCTV shall consult with the Board of Selectmen or its designee prior to purchasing and installing said equipment.
(g) To secure its obligations pursuant to this Section 7 in the event of dissolution or ter-
mination of this Agreement, WCTV hereby grants the Town a security interest in all equipment provided or purchased pursuant hereto. WCTV agrees to take all steps reasonably requested by the Town to perfect and enforce the Town's security interest, including the execution and processing of financing statements and continuation statements under the Uniform Commercial Code. The Town agrees to subordinate its interest if necessary to finance the purchase of equipment or property. The subordination shall only be with respect to the specific equipment or property that WCTV might wish to finance.
(h) Upon the dissolution of WCTV, the termination of this Agreement and/or the expiration of a cable license(s) by the Town with a cable operator(s) without provision for the continued funding of PEG Access thereafter, WCTV shall, if requested by the Town, return to - the Town or to one or more charitable or educational institutions or organizations selected by the Board of Selectmen and created and organized for nonprofit purposes similar to those of the Corporation (including the operation and management of PEG Access Operations and Programming, which qualify as tax exempt §501(c)(3) of the Internal Revenue Code or the corresponding section of any future federal tax code - all equipment provided to WCTV pursuant to this
Agreement or purchased by or for WCTV from funds provided pursuant to this Agreement and all unexpended funds previously provided to WCTV pursuant to this Agreement. At the option of the Town said equipment and/or funds shall, upon the occurrence of one of the above referenced contingencies, be provided by WCTV to such organization(s) designated by the Town to manage access, which shall at that time qualify as a tax exempt organization(s) under Section 501(c)(3) of the Internal Revenue Code or the corresponding section of any future federal tax code.
SECTION 8. ACCESS STUDIO
(a) Unless otherwise agree to by the Town of Wareham through its Board of Selectmen, WCTV shall construct and maintain an Access studio at 38 Tihonet Road The Town, through its Board of Selectmen, shall require a written lease, with reasonable terms and conditions, including reasonable rent, if deemed appropriate by the Board of Selectmen, for the use of said building by WCTV as an Access studio. The amount of rent, if any, shall be determined in light of the capital improvements made by WCTV to said Town building and the benefits to the Town of having WCTV serving as the Town’s Access Corporation. Until said Access studio at addressStreetTihonet Road is operational, WCTV may use
the space provided at the Town’s placePlaceNameMulti PlaceNameService PlaceTypeCenter at addressStreet52 Marion Road for its PEG Access operations, subject to such reasonable terms and conditions, if any, determined by the Board of Selectmen. .
(b) The Access studio shall comply with all applicable laws and regulations.
(c) When the Access studio is operational or within fifteen (15) months of the execution of this Access Agreement, which ever is earlier, WCTV shall establish reasonable and regular studio hours, with the specific hours based upon the reasonable needs of Access Users. (This deadline may be amended by the Board of Selectmen, in it sole discretion, if the Board deems circumstances to justify such amendment. Absent special circumstances, the Access studio shall, on average, be open to Access Users a minimum of forty (40) hours per week, including some evening and weekend hours. WCTV shall inform the public, through cablecast on the Public Access Channel, of the days and hours when the studio will be
open and available pursuant to the regular schedule and, in addition, if by arrangement upon reasonable request. WCTV shall inform the Town, in writing, of any non-temporary change in the regular hours of the Access Studio.
(d) The Access studio shall be for the exclusive use of Access Users as defined in Section 3, above. The studio shall not be used for any other purpose or for the benefit of any persons other than Access Users or persons whose specific use of the studio benefits PEG Access in placeCityWareham, unless otherwise authorized by the Town of placeCityWareham, through its Board of Selectmen.
SECTION 9. GOVERNANCE OF ACCESS CORPORATION
The governance of WCTV shall comply with the following requirements:
(a) The Board of Directors shall have a minimum of seven (7) directors.
(b) All members of the Board of Directors (initial members and all subsequent members) shall be appointed by the Board of Selectmen.
(c) A Director need not be a member of WCTV prior to their appointment to the Board of Directors, but shall become a member of the Access Corporation upon their appointment as a Director.
(d) No member of the Board of Directors may be removed from office with less than an affirmative vote of five (5) members of the Board of Directors, after reasonable notice and an opportunity to be heard. The reason(s) for removal shall be provided, in writing, to the removed Director.
(e) Meetings of the membership of WCTV and its Board of Directors shall be open to the public except in those instances where the respective membership or Board, in good faith, deems closure of all or some of the meeting to be in the best interest of the Corporation.
(f) No member of the Board of Directors may participate or vote on any particular matter in which said Director, or their immediate family member, partner, a business organization in which they are serving as an officer, director, trustee, partner or employee, or any person or organization with whom they are negotiating or has an arrangement concerning prospective employment, has a financial interest.
(g) Directors shall receive no compensation for their services provided as Directors, however, that a Director may be reimbursed for reasonable and necessary expenses incurred.
SECTION 10. ANNUAL REPORT
At least once each calendar year, WCTV shall submit to the Town an annual report which shall contain, at a minimum, the following information:
(a) A summary of programming and services provided;
(b) List of future goals;
(c) Current and complete listing of WCTV’s Board of Directors;
(d) A complete current inventory of all equipment; and
(e) A year-end fiscal audit, prepared by an independent certified public accountant.
SECTION 11. UPDATE MEETING BETWEEN TOWN AND WCTV
(a) Each year, if requested by the Board of Selectmen or its designee, WCTV shall meet with the Board of Selectmen or its designee. The purpose of said meeting shall include reviewing WCTV’s compliance with the terms and conditions of this Agreement, and hearing comments and/or suggestions from the Town and the public.
(b) The Issuing Authority and/or its designee shall have the right to question WCTV regarding any aspect of its performance under this Agreement. WCTV shall fully cooperate with the Board of Selectmen or its designee, and shall produce such documents or other materials relevant to such review and evaluation as are reasonably requested by the Town. Members of the public may submit comments during such review hearing, either orally or in writing, at the direction of the Issuing Authority or its designee.
(c) WCTV shall provide notice of all such performance evaluation hearings by periodic messages on the Public Access channel.
(d) Nothing in this Section shall prohibit the Town of Wareham from requesting that WCTV attend other meetings or hearings, or compelling the attendance by WCTV through any lawful means.
SECTION 12. PERFORMANCE REVIEW BY THIRD PARTY
No more than four (4) times during the term of this Agreement, WCTV shall, if requested by the Town of Wareham through its Board of Selectmen, be required to engage or retain a person or entity that is knowledgeable and experienced in PEG Access operations in the Commonwealth of Massachusetts to conduct a performance review of WCTV’s operations. Upon completion, WCTV shall submit a copy of the performance review to the Board of Selectmen.
SECTION 13. RECORDS AND AUDIT.
(a) WCTV shall maintain all necessary books and records, in accordance with generally accepted accounting principles. Additionally, WCTV shall:
(i) implement effective internal financial and operating controls for the efficient use of all funds and other resources provided pursuant to this Agreement;
(ii) maintain all necessary books and records, in accordance with generally accepted accounting principles;
(iii) have a year-end fiscal audit, prepared by an independent certified public accountant.
(iv) make timely payment as due to persons and entities supplying labor, materials or services to WCTV for any purpose under this Agreement; and
(v) maintain generally accepted business and accounting practices with respect to its operations and investments, financial oversight and management;
(b) Upon request from the Town, WCTV shall, at a reasonable time(s) during normal business hours, make available any or all of its records with respect to all matters covered by this Agreement.
(c) The Town shall, at its cost, have the right to have the financial books and records of WCTV Access reviewed by a qualified individual or firm. Nothing herein shall be deemed to diminish the responsibility of WCTV, if any, under applicable law or regulation, with respect to any financial record keeping or financial statement and/or audit requirements. Copies of any such financial records, statements or audits shall be provided to the Town upon request of the Issuing Authority.
(d) All capital equipment (including furniture) obtained by WCTV will be inventoried and permanently marked, and an inventory, including invoice numbers, maintained and updated.
SECTION 14. INDEPENDENT CONTRACTOR
It is understood and agreed that WCTV is an independent contractor and that no relationship of principal/agent or employer/employee exists between the Town and WCTV. If in the performance of this Agreement any third persons are employed by WCTV, such persons shall be entirely and exclusively under the control, direction and supervision of WCTV. All terms of employment, including hours, wages, working conditions, discipline, hiring and discharging or any other term of employment shall be determined by WCTV and the Town shall have no right or authority over such persons or terms of employment.
SECTION 15. ASSIGNMENT AND TRANSFER
Neither this Agreement nor any interest or responsibility herein shall be assigned or transferred by WCTV, except as expressly authorized in writing by the Town through its Board of Selectmen.
SECTION 16. FUNDING FROM OTHER SOURCES
Nothing in this Agreement shall prohibit WCTV from obtaining funding from other sources in a lawful manner, including, but not limited to, fundraising activities.
SECTION 17. INDEMNIFICATION
WCTV shall indemnify, defend, and hold harmless the Town, its officials, employees, volunteers and agents from and against any and all claims, suits, actions, causes of action, losses, damages, or liabilities of any kind, nature or description, including, payment of all attorneys' fees and litigation costs and expenses, brought by any person or persons for or on account of any loss, damage or injury to person, property or any other interest, tangible or intangible, or death sustained by or accruing to any person or persons, howsoever the same may be caused, directly or indirectly or arising or resulting from any alleged act(s) or omission(s) of WCTV, its officers, employees, volunteers, agents or subcontractors from or with respect
to the performance of this Agreement or arising from or in connection with any claims, loss or damage to person or property arising out of the failure to comply with any applicable laws, rules, regulations or other requirements or orders of local, state or federal authorities, for claims of libel, slander, invasion of privacy, or infringement of common law or statutory copyright, or for breach of contract or other injury or damage in law or at equity which claims, directly or indirectly, result from WCTV’s use of channels, funds, equipment, facilities or staff granted under or obtained pursuant to the funding from this Agreement. As to any matter arising under this indemnity provision, the Town reserves the right, but not the duty, to select counsel of its choice to represent its interests. This indemnification requirement shall survive the termination or expiration of this Agreement.
SECTION 18. INSURANCE
WCTV shall, unless otherwise directed in writing by the Town, obtain and maintain in full force and effect at all times during the term of this Agreement all insurance required below by this Section.
(a) General Comprehensive Liability Insurance - A general comprehensive liability insurance policy, including protective liability, completed operations and broad form contractual liability, property damage and personal injury coverage, with a minimum coverage limit of One Million Dollars ($1,000,000) per person and per occurrence, Two Million Dollars ($2,000,000) aggregate. Said policy shall also include tenant legal liability for property damage, if requested by the Town of placeCityWareham.
(b) Motor Vehicle Liability Insurance - Automobile liability insurance for owned, leased or rented motor vehicles in the amount of Five Hundred Thousand Dollars combined single limit.
(c) Excess/Umbrella Liability Insurance - In the minimum amount of Two Million Dollars ($2,000,000) over the insurance required by Subparagraphs (a) and (b) above.
(d) Business Personal Property Insurance - Business personal property insurance at for facilities and equipment in the amount of replacement cost.
(e) Workers’ Compensation - Workers Compensation in the minimum amount of the statutory limit if and when WCTV has an employee.
(f) Cablecaster’s Errors and Omission Insurance - The Access Corporation shall obtain errors and omission insurance to cover the content of productions which are cablecast on an Access Channel to include, at minimum, the following areas: libel and slander; copyright or trademark infringement; infliction of emotional distress, invasion of privacy; plagiarism; misuse of musical or literary materials. This policy shall not be required to cover individual Access producers. The minimum amount of said insurance shall be One Million Dollars ($1,000,000).
(g) The following conditions shall apply to the insurance policies referenced above:
(i) The Town shall be named as an additional insured on all aforementioned insurance coverages to the extent allowed by law, other than the workers’ compensation policy. The policies shall provide that no cancellation, material change in coverage or expiration may be affected by the insurance company or WCTV without first giving the Town thirty (30) days written notice prior to the effective date of such cancellation or change in coverage;
(ii) Such insurance shall be primary with respect to any insurance or self-insurance maintained by the Town and shall not call on the Town=s insurance for contributions;
(iii) Such insurance shall be obtained from producers authorized to transact insurance business in the Commonwealth of Massachusetts and, unless otherwise agreed to in writing by the Town, shall be provided by an insurance carrier(s) licensed to do business for the coverage provided in the Commonwealth of Massachusetts by the Massachusetts Division of Insurance;
(iv) The coverage amounts set forth above may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those required herein and follow the same form;
(v) The cost of such insurance, including all premiums and deductibles, shall be borne by WCTV;
(vi) The parties shall periodically review the insurance coverage and coverage mounts required above to determine whether said insurance adequately protects the parties and is cost effective given available funding pursuant to this Agreement;
(vii) The failure of WCTV to maintain the insurance required herein shall be grounds for the Town to suspend or terminate this Agreement immediately, without resort to the termination procedures provided in Section 20 below; and
(viii) If the Town’s own minimum coverage amount for any of the insurance referenced above increases, the Issuing Authority may require WCTV to increase its corresponding insurance coverage within twelve (12) months written notification by the Issuing Authority to WCTV, unless such increased insurance coverage is commercially unavailable to WCTV.
(h) Directors’ and Officers’ Liability Insurance - WCTV may, in its discretion, obtain directors’ and officers’ liability insurance for its directors and officers.
SECTION 19 COMPLIANCE WITH LAWS AND REGULATIONS
WCTV shall be governed and operated in accordance with applicable laws and regulations.
SECTION 20. TERMINATION OF AGREEMENT - TRANSFER OF ASSETS
(a) The Town, through its Board of Selectmen, shall have the right upon thirty (30) days written notice to WCTV to terminate this Agreement for:
(i) Malfeasance, misfeasance, misappropriation or waste of funds provided pursuant to this Agreement;
(ii) Loss of 501(c)(3) status by WCTV;
(iii) WCTV filing a petition of bankruptcy, or for receivership or reorganization, has filed any other petition under the bankruptcy law, or has taken or committed an act preparatory to the filing of any such petition, has become insolvent or has committed any other act of bankruptcy or insolvency, or has a substantial portion of its assets assessed for the benefit of creditors;
(iv) The loss of a substantial portion of PEG Access funding as a result of a change in the financial terms of a cable license, a change in the status of a cable service provider or a change in law.; or
(v) For any material breach of a material provision of this Agreement by WCTV.
(b) WCTV may avoid termination by curing any such breach within thirty (30) days of notification or such longer time as the Board of Selectmen determines. Upon a third (3rd) material breach by WCTV over the course of a twenty-four (24) month period, the Town may terminate the Agreement upon written notice provided without any cure period as long as said notice is provided within ninety (90) days after the material breach (each day a material breach continues shall be deemed to be an actionable day for purposes of this requirement to terminate within said 90-day period).
(c) WCTV shall have the right upon sixty (60) days written notice to the Town to terminate this Agreement for material breach of any material provision of this Agreement by the Town. The Town may avoid termination by curing any such breach within said sixty (60) day period.
(d) All written notices of termination shall include a reasonably detailed description of the alleged breach.
(e) See Section 18(g)(vii) for immediate suspension or termination as a result of WCTV’s failure to maintain the required insurance.
(f) See Section 7(g) and (h) above regarding security interests, return of funds, return of equipment, real property, fixtures, contracts, leases, deposit accounts or other assets received by or purchased by WCTV with funds received pursuant to this Agreement.
SECTION 21. MISCELLANEOUS PROVISIONS
Section 21.1 Entire Agreement
This instrument contains the entire agreement between the parties, which supersedes all prior agreement or proposals except as specifically incorporated herein, and cannot be changed orally but only by an instrument, in writing executed by the parties.
Section 21.2 Cooperation
Each party agrees to cooperate with the other party to carry out the provisions of this Agreement.
Section 21.3 Captions
The captions to sections throughout this Agreement are intended solely to facilitate reading and reference to the sections and provisions of the Agreement. Such captions shall not affect the meaning or interpretation of the Agreement.
Section 21.4 Liability of Town Officials and Employees
To the fullest extent permitted by law, no official, employee, agent or representative of the Town shall be individually or personally liable on or for any obligation of the Town under this Agreement.
Section 21.5 Force Majeure
If by reason of Force Majeure either party is unable in whole or in part to carry out its obligations hereunder, said party shall not be deemed in violation or default during the continuance of such inability, provided the party takes immediate and diligent steps to comply as soon as possible under the circumstance with this Agreement without endangering the health or safety of the persons or property. The term “Force Majeure” as used herein shall include, but not be limited to, the following: acts of God; acts of public enemies; orders of any kind of the government of the United States of America or of the State or any of their departments, agencies, political subdivision,
or officials, or any civil or military authority, insurrections, riots, epidemics, landslides, lightening, earthquakes, fires, hurricanes, volcanic activity, storms, floods, washouts, civil disturbances, explosions, strikes, and unavailability of essential equipment, service or materials, the unavailability of affordable insurance coverage, or other matters beyond the reasonable control of the party. In the event that any such delay in performance or failure to perform affects only part of the party’s capacity to perform, the Licensee shall perform to the maximum extent it is able to do so in as expeditious a manner as possible. The party subject to Force Majeure shall notify the other party in writing of the occurrence of an event covered by this Section within five (5) business days of the date upon which the party learns of its occurrence.
Section 21.6 Non-Waiver
Failure of either party to insist on strict performance of any portion of this Agreement or to exercise its rights or remedies hereunder upon the failure of performance or default of the other party, shall not be considered a waiver of the right to insist upon or to enforce any provision of this Agreement or to exercise any right or remedy occurring as a result of any future failure of performance or default.
Section 21.7 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 such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which shall remain in full force and effect for the term of the Agreement.
Section 21.8 Applicable Law
This Agreement shall be interpreted and enforced under the laws of the Commonwealth of Massachusetts.
Section 21.9 Notice
Official notice shall be in writing, and delivered or sent by certified mail - return receipt requested or express mail - signature required. Delivery shall be equivalent to direct personal notice, direction or order, and shall be deemed to have been given at the time of delivery. Certified mail shall be deemed to have been given two (2) days after mailing and express mail shall be deemed to have been given the day after mailing. Notice shall be addressed as provided below or such other name, title and/or address as hereinafter provided in writing by the respective party:
TOWN OF WAREHAM WAREHAM COMMUNITY TELEVISION
Board of Selectmen President
Wareham Town Hall Wareham Community Television
54 Marion Street __________________________________
Wareham, Massachusetts 02571 Wareham, Massachusetts 02571
IN WITNESS WHEREOF, the parties have executed this Agreement as a sealed instrument as of the date first written above.
TOWN OF WAREHAM WAREHAM COMMUNITY TELEVISION
By Board of Selectmen By its President (as authorized by a vote of its Board of Directors):
__
Bruce D. Sauvageau, Chairman Name:
__
Brenda Eckstrom
__
R. Renee Fernandes-Abbott
__
Cynthia K. Parola
__
Mary Jane Pillsbury
Approved as to legal form:
_______________________
Special Cable Counsel
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