Back to Board of Selectmen Meeting Minutes
January 18, 2011
Regular Session 7:05 PM
Present: Bruce Rabuffo, Chairman; Laura M. Burns; John A. Riley; Ted Alexiades, Interim Town Administrator; and Betty Foley, Assistant Town Administrator
Chairman Rabuffo called the meeting to order and announced that the Report on the Interim Town Administrator Evaluation would be the first item of business.
Report on Interim Town Administrator Evaluation: Chairman Rabuffo announced that last Friday the Board of Selectmen conducted a public meeting to review Ted Alexiades’ performance as the Interim Town Administrator based on six criteria. He summarized some of the Board’s comments at that meeting; reviewed the process taken, which included discussion with department heads and input from citizens; and commented, along with Mr. Riley and Ms. Burns, that the Board is very pleased.
Voted – A motion was made by Ms. Burns and seconded by Mr. Riley to appoint Theodore Alexiades Town Administrator for Hingham pending successful completion of contract negotiations. There was no discussion or public comment. A vote was taken and all were in favor; the motion passed.
Mr. Alexiades expressed his gratitude. The meeting recessed at 7:15 PM for photographs and resumed at 7:20 PM. Chairman Rabuffo announced that he has asked the Town Attorney to begin work on a contract.
Questions from the Public: There were no questions from the public.
Approve Minutes 11/30, 12/7, 12/9, 12/14 and 12/16/10 and 1/4/11: There was no discussion.
Voted – A motion was made by Mr. Riley and seconded by Ms. Burns to approve the minutes of November 30, December 7, December 9, December 14, and December 16, 2010, and January 4, 2011. There was no discussion or public comment. A vote was taken and all were in favor; the motion passed.
MBTA Intermodal Transportation Center Comments on Proposed Project: Chairman
Rabuffo introduced the discussion, noting the Board’s receipt of correspondence dated December 22, 2010, from Ian Bowles, Secretary of the Executive Office of Environmental Affairs, and Kristine Gorman, Project Manager. The letter requested comment on the proposal to construct a new intermodal transportation center and office space at the Hingham Shipyard site. Mr. Riley commented that it is a step in the right direction and discussed the site plan. Ms. Burns commented that she is pleased with the progress of the plan. Mr. Alexiades noted the deadline for submitting comments is January 22nd. Chairman Rabuffo stated that the purpose of the facility is to accommodate the ferry, consolidate other services, and have a place for the Harbormaster. Discussion followed regarding if both office space and docking space are included in the plan for the Harbormaster. Mr. Alexiades confirmed that office space is included. He will research the issue of docking space and include support for docking space in the comments to the Secretary. The Board clarified a question regarding site ownership as referenced in the letter. No formal action was taken.
Cable Television Committee - Appointment of Directors and Proposed By-laws for the Public Access Corporation: Sandra Peavey and Jim Dellot were present representing the Cable Television Committee. Ms. Peavey addressed the Board and stated that the By-laws and Articles previously were approved, and the changes in the By-laws presented tonight are with respect to the process for amending the By-laws in the future and also filling in the names and addresses of the directors in the Articles of Organization. Ms. Peavey presented the Committee’s request that when the Board establishes the Corporation that they also authorize the transfer of $5,000 of cable funds to the Corporation for use in preparing and filing the 501(c)(3) application and the applications with the Commonwealth. The Committee also has requested a draft of an agreement between the Town and the Corporation for future transfers. Ms. Peavey stated that the Committee has been talking to the Library about space for training, which is a requirement of the Comcast agreement and which must be in place by this August. The Committee also has talked to the Community Center regarding training classes. In addition the $5,000, the Corporation will need about $3,000 for equipment such as cameras, camcorders, etc. for the training.
Discussion followed. Ms. Peavey confirmed that compensation is paid for the use of Town space. Chairman Rabuffo stated that he will discuss the issue with the Library at its next meeting. Ms. Peavey said the Committee is interested in establishing a stronger relationship with the Library. The Committee is looking for space to start the training, and it will be up to the Board of Directors of the new corporation to find a permanent home, although the hope is for a Hingham facility and ideally Town property. Ms. Burns thanked the Committee for all of its work. When asked if the contract would be addressed tonight, Ms. Peavey answered no and that it should be done by Board soon. Chairman Rabuffo questioned whether one of the individuals potentially to be appointed a director and who sits on another committee has agreed to step down from that committee. Ms. Peavey was uncertain of the status and explained that the directors named tonight do not have to remain as permanent directors. The consensus was to appoint a full board of directors and inquire further as to which role this particular individual will choose to maintain. Discussion followed regarding the order of the motions for voting purposes.
Voted – A motion was made by Mr. Riley and seconded by Ms. Burns to approve the By-laws of the Hingham Cable Television Public Access Corporation as written. There was no discussion or public comment. A vote was taken and all were in favor; the motion passed.
Voted – A motion was made by Ms. Burns and seconded by Mr. Riley to appoint the following directors for the Hingham Cable Access Corporation:
There was no discussion or public comment. A vote was taken and all were in favor; the motion passed.
Voted – A motion was made by Ms. Burns and seconded by Mr. Riley that the Board of Selectmen, as the cable television license authority of the Town of Hingham, hereby approves the formation of a private, non-profit, charitable Public, Education and Government (PEG) access corporation, to continue operation of local PEG access community television and related services, as contemplated by the cable television renewal license between the Board of Selectmen and Comcast and the cable television license between the Board of Selectmen and Verizon, and ratifies the formation of said non-profit PEG access corporation as designated in the Articles of Organization to be filed with the Secretary of the Commonwealth, attached hereto as Exhibit 1, and as set forth in the By-laws for such corporation, attached hereto as Exhibit 2. The authorization of this independent, private, non-profit corporation as set forth in the attached Articles of Organization is subject to the corporation’s initial Board of Directors, in their capacity as incorporators, diligently adopting said Articles of Organization and By-laws, and applying for and receiving tax exempt status subject to and in accordance with Section 501(c)(3) of the Internal Revenue Code. There was no discussion or public comment. A vote was taken and all were in favor; the motion passed.
Discussion followed regarding authorizing the transfer of $5,000 to the newly formed corporation for the purpose of having funds for the requisite filings with government agencies and hiring an attorney for that purpose, and a transfer of $3,000 for equipment and training.
Voted – A motion was made by Mr. Riley and seconded by Ms. Burns to approve through the Board of Selectmen the amount of $8,000 for the purpose of the preparation and filing fees and the hiring of an attorney and filing for 501(c)(3) corporation status as well as additional equipment and training. There was no further discussion or public comment. A vote was taken and all were in favor; the motion passed.
Whitman Temporary Liquor License:
Voted – A motion was made by Ms. Burns and seconded by Mr. Riley to grant a temporary liquor license to Martha Whitman for a party on February 5th at the South Shore Conservatory. There was no discussion or public comment. A vote was taken and all were in favor; the motion passed.
Chairman Rabuffo announced that February 5th also is the Lincoln Day Celebration.
Town Administrator’s Report: Mr. Alexiades stated that there is no formal report for this evening. Mr. Riley inquired about limousine licensing. Mr. Alexiades reported that Ms. Foley currently is working on it. Ms. Foley discussed the licensing process and the practicality of interviewing every single driver as opposed to owners only. The process does include a CORI check on every driver and police checks on vehicles. She pointed out that picking up passengers in Hingham is not permitted without a license. There is a current request for a taxi license; currently there are none in Town. Mr. Riley asked about requirements throughout the state and how a company would know about local requirements. Mr. Alexiades commented that this is a local licensing issue and that local licensing practices and requirements are common knowledge to those in the business, he summarized public safety concerns and why licensing is important, and he suggested that the interview process could be modeled similarly to the liquor licensing process. Ms. Burns inquired about a taxi application last year, which Ms. Foley will research. Discussion followed regarding enforcement responsibility by the police department and prom time. There was no public comment. No formal action was taken.
Discussion of Planning Board Vacancy: Paul Healey, Chairman of the Planning Board, addressed the Board, summarized Susan Murphy’s recent resignation, stated that the Planning Board’s duties are best served by five members, and requested an interim appointment be made pending the April meeting. Mr. Healey requested that letters of interest and a resume be submitted to Katy Lacy, Ms. Foley, or him, which would be followed by interviews and a decision. The general consensus was to make the deadline for submission Friday January 28th, with public interviews to be held at the Board of Selectmen’s next meeting on February 1st. There was no public comment. No formal action was taken.
Discussion of Police Chief’s Planned Retirement: Chairman Rabuffo announced that Mr. Alexiades is in receipt of a letter from Chief Mills regarding his intended retirement. Mr. Alexiades said that Chief Mills indicated that his retirement will be between April 30th and June 30th of this year, citing this particular period as he would like the dispatch center to be completed. Mr. Alexiades reviewed the construction status, the anticipated timeline of training and live operations, and the antenna array for the dispatch center.
Mr. Bob Falvey, a Town resident, questioned the Board regarding a newspaper article mentioning a deputy’s retirement as well. Mr. Alexiades stated that he has received no formal notice yet from the deputy. Mr. Falvey also inquired about the selection process and whether it was strictly a town process or if the state had a role. Mr. Alexiades stated that the selection process is entirely under the purview of the Board of Selectmen, who will determine the process and ultimately choose the next chief. The Police Chief is not a Civil Service role. Chairman Rabuffo asked Mr. Alexiades to start the process. Mr. Alexiades will outline options for the process (internal, external or a combination), and ask the Board to select the preferred process at the next meeting on February 1st. Mr. Paul Healey provided public comment and asked about a possible plan for an interim chief if needed. Mr. Alexiades stated that the goal is to have someone on board close to the Chief’s retirement. Mr. Healey further commented on the importance of the position, wanting a smooth a transition as well as someone who can liaise with the departments and the community. Chairman Rabuffo and Mr. Alexiades stated the Chief’s has assured them of his availability for the transition. No formal action was taken.
Hersey House – Timeline for Proposals: Chairman Rabuffo introduced Attorney Kerry Ryan and summarized the series of discussion about the future uses of the Hersey House, separate zoning articles for the Planning Board to consider, interest on the residential side, and a possible RFP. Attorney Ryan stated that there have been no bids or an RFP as of yet, and that the timing is now to get an RFP out to solicit bids and determine if there are offers for the Board to entertain. Mr. Alexiades stated the purpose tonight is to obtain the Board’s opinion on the RFP process. Mr. Alexiades and Chairman Rabuffo outlined a proposed timeline from staff: February 2nd issue an RFP and post on the Central Register, March 2nd proposals due, March 15th review proposals and make a recommendation, March 29th make an award subject to Town Meeting and zoning, and, finally, close after Town Meeting and prior to June 30th. Ms. Foley and Mr. Alexiades requested direction from the Board in terms of streetscape, preservation, 40B development, and the number of lots. Attorney Ryan noted that the property officially is zoned as open space, which is an unlikely future use. Ms. Burns suggested some additional language for the RFP. The general consensus was a desire for expediency with a high return to the Town, and a maximum of three lots. Discussion followed regarding the date of construction, possible partial demolition of the addition only, and the existing right of an abutter to purchase the barn. Attorney Ryan will work with Attorney Murphy on language regarding the barn and the addition. In response to a question regarding a determination of property value, the Board and Mr. Alexiades stated that there is an assessed value, which is a public record.
Mooring Plan for Yacht Club Area/Looking Forward–2011 Goals Harbor Development Committee: Ken Corson, Harbormaster, addressed the Board and reviewed the process involved in developing the draft Mooring Mapping & Reorganization Hingham Yacht Club, Hingham, MA by CLE Engineering. The process involved locating and identifying all moorings and placing them under a GPS system, taking all water depth measurements, looking at current uses and mixes, relocating vessels, and realigning all boats to a grid structure set up by CLE. An initial plan was prepared and reviewed at a public hearing, taking public comment. That plan was revised and a second public meeting was held. Mr. Corson stated that the biggest concern was people not wanting to change their current location. Mr. Corson reviewed the plan divisions in detail, the number of current moorings and future availability, and requested the ability to make some adjustments to the plan as necessary as the process continues. In response to Mr. Riley’s questions regarding the affect on the Yacht Club, Mr. Corson stated that he has met with the Yacht Club to make sure there was no adverse affect, and they are satisfied. Discussion followed regarding the Shipyard and Back River and the Harbormaster’s future review of permits held by different organizations there. Mr. Corson stated that his office issues permits but does not control the mooring fields. With respect to revenue, Mr. Corson stated that every mooring requires a permit, with the fee based on the overall length of the vessel. The current fee is $7.00/lineal foot. Ms. Burns applauded all the hard work in developing the plan. Mr. Corson confirmed for Chairman Rabuffo that there is flexibility in the plan to accommodate changes in marketplace and buying trends.
Mr. John Kenny, a Town resident and an owner of Hingham Harbor Marina, provided public comment commending the process and questioned the status of the amendment of CLE contract regarding cleaning up permitting for inner harbor moorings and redefining Coast Guard special anchorages. He also questioned the applicability of the permit fee. Mr. Corson responded that the permitting process is underway and the special anchorages will be redrawn. He further stated that the $7.00 per foot fee applies to every boat regardless of its location
Voted: A motion was made by Ms. Burns and seconded by Mr. Riley to approve the updated mooring plan for the yacht club area. There was no further discussion. A vote was taken and all were in favor; the motion passed.
Alan Perrault, Chairman of the Harbor Development Committee, along with members Bob Mosher, Chris Daly, Dave Fenton, and Ken Corson, were in attendance. Also in attendance was Nick Amdur, prior Committee member. Mr. Perrault addressed the Board and summarized the purpose and role of the Committee and questioned if the role should change between the Committee and the Task Force in light of Ms. Murphy’s resignation. Mr. Riley commented that a selection process for her replacement is underway and that the public is comfortable with the Task Force. Mr. Perrault then reviewed each item on the 2011 Objectives and Goals of the Committee, noting that pedestrian access seems to be a strong concern. Each Selectman thanked the Committee for its work, and Mr. Riley also thanked Mr. Amdur. Discussion followed regarding grant applications, future dredging, the feasibility study on a town marina, a boardwalk, moving the fairway out to create additional mooring, possible use of CPC funds, design potential for a marina building, areas for safe kayaking, more public/private programs at the harbor for kayaking, and a bridge from Whitney Wharf to 3 Otis Street. Mr. Daly commented on the construction/engineering aspects of such a bridge. Discussion continued regarding the Lincoln Maritime Center, concerns regarding disorganized parking, better ingress and egress, the Town’s ownership of the property, public access, additional signage, the Bathing Beach bath house, hours of operation of the restroom, rotary improvements, other improvements along 3A, and a suggestion to invite a Mass Highway representative to a Committee meeting. There was no public comment. No formal action was taken.
Discussion of Date for Economic Forum: The consensus was to hold the forum on Sunday February 13th from 1:00 to 4:00 PM and to call it the Town Forum as non-economic issues also will be discussed.
Selectmen Reports: Ms. Burns reported on the receipt of a letter from the Metropolitan Area Planning Council regarding funding available for providing assistance to communities. Ms. Burns recommended applying for assistance to update the housing production plan for affordable housing, revamp the 10-year master plan, draft a wind power by-law, or for the South Hingham Sewer District. The general consensus was in favor of the sewer district with Chairman Rabuffo also favoring the 10-year master plan, noting that it is past due by two years. Ms. Foley noted that the grant money must be spent by December 31st. There was no public comment. No formal action was taken.
Chairman Rabuffo stated that the flashing light on Beal Street is up and running and asked Mr. Alexiades to provide a date for the removal of the speed bumps.
Adjournment: A motion was made by Mr. Riley and seconded by Ms. Burns to adjourn the open session. A vote was taken and all were in favor; the motion passed.
The open session adjourned at 9:34 PM.
Clerk Pro Tem
BY AND BETWEEN THE BOARD OF SELECTMEN
OF THE TOWN OF HINGHAM, MASSACHUSETTS
HINGHAM COMMUNITY ACCESS AND MEDIA, INC.
This Agreement is made this ____ day of _______________, 2010, by and between the Board of Selectmen of the Town of Hingham, Massachusetts (hereinafter referred to as the “Town” or “Hingham”) and Hingham Community Access and Media, Inc. (hereinafter referred to as “H-CAM”), a private, non-profit corporation duly established under the laws of the Commonwealth of Massachusetts.
WHEREAS, the Town granted a Cable Television Final License to Verizon New England, Inc. (hereinafter also referred to as “Verizon”) for a ten (10) year term from April 22, 2008 through April 21, 2018 (hereinafter referred to herein as “Verizon License Agreement”) (references to Verizon in this Agreement shall apply to any and all transferees or successors to Verizon), and
WHEREAS, the Town granted a Cable Television Renewal License to Comcast of Massachusetts, I, Inc., (hereinafter also referred to as “Comcast”) for a Amended/Restated Term from March 11, 2009 through August 13, 2009 and a ten (10) year renewal term from August 14, 2009 through August 13, 2019 (hereinafter referred to herein as “Comcast License Agreement”) (references to Comcast in this Agreement shall apply to any and all transferees or successors to Comcast; the Verizon and Comcast cable licenses shall be referred to collectively herein as the “Cable Licenses”);
WHEREAS, the Cable Licenses provide to the Town and its residents certain public, educational, and government (“PEG”) Access Channels (sometimes referred to herein as “PEG Access” or “Access”), together with grants for funding and support to the Town and/or its designee for PEG Access operations, facilities and equipment;
WHEREAS, H-CAM has stated its interest in providing Public and Government Access programming, services, facilities and equipment to the Town, its residents, and Hingham 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 Section 5 of the Verizon Final License and Article 6 of the Comcast Renewal License, enters into this Agreement for the provision by H-CAM of Access programming, services, facilities and equipment to the Town and Access Users, pursuant to the terms of this Agreement, the grants from Verizon and Comcast, 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 Access programming, services, facilities and equipment pursuant to the terms of this Agreement, the grants from Verizon and Comcast, and applicable law.
SECTION 2. TERM
(a) This Agreement shall be for a five (5) year term, commencing on ___________, 2010 and running through ______________ 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.
(b) H-CAM shall, at least six (6) months prior to the expiration of the five (5) year period referenced in Paragraph (a) above, give the Board of Selectmen written notice of its request to renew this Agreement for an additional term of five (5) years. The Board of Selectmen shall, within sixty days (60) days of receipt of said notice, provide a written response to H-CAM as to whether it is willing to renew this Agreement. If both parties desire to renew this Agreement, the parties shall negotiate in good faith to renew the Agreement on terms agreeable to both parties.
SECTION 3. SCOPE OF SERVICES AND H-CAM OBLIGATIONS
H-CAM shall provide Access programming, services, facilities, and equipment to the Town and to Access Users, as provided in this Agreement, consistent with the grant funds provided to H-CAM pursuant to this Agreement and the reasonable availability of access personnel, contractors and volunteers, and in accordance with applicable law, including, but not limited to, the Internal Revenue Code as applicable to the operation of a Section 501(c)(3) tax exempt organization. The term “Access Users” as used in this Agreement shall mean Hingham residents and persons associated with a Hingham business or organization who have complied with and have successfully completed H-CAM’s reasonable requirements for membership and training. All Access programming shall require a Hingham sponsor or sponsors, as determined by the H-CAM Board of Directors. The services, facilities and equipment provided by H-CAM shall be provided to Access Users on a non-discriminatory basis. The access programming, services, facilities and equipment to be provided by H-CAM includes the following responsibilities, consistent with the funds available to H-CAM:
(a) Schedule, program, operate and maintain the Public Access Channel;
(b) To the extent requested and funded by the Board of Selectmen, schedule, program, operate and maintain the Government Access Channel. (The Public and Government Access Channels are referred to collectively herein as “PG Access Channels”);
(c) Provide support for the Educational Access Channel (referred to herein as the “E Access Channel”) to the extent requested and funded by the Board of Selectmen;
(d) Comply with applicable laws and regulations with respect to all programming on the PEG Access Channels. The Government Access Channel shall not be used for Public Access programming or programming unrelated to Government Access, unless otherwise authorized in writing by the Board of Selectmen or its designee;
(e) Responsibly manage the annual grant funding provided to and raised by H-CAM, including the funding provided pursuant to Sections 4 and 5 below.
(f) Purchase and/or lease equipment with funds provided to H-CAM in accordance with this Agreement;
(g) Provide for and encourage the production of programming for the PG Access Channels by Access Users, by operating and maintaining an Access studio, by participating in the operation of a regional Access studio, and/or by contracting for the use of studios operated and maintained by others;
(h) Conduct training programs for Hingham residents and members of Hingham-based organizations in the skills necessary to produce quality Access programming;
(i) Provide technical assistance to Access Users, using H-CAM staff and volunteers;
(j) Provide access to production and post-production equipment for Access Users;
(k) Engage in publicity, fund-raising, outreach, referral, and other activities to support PEG Access;
(l) Establish rules, procedures and guidelines (including written Access User agreements, which shall be required for all Access Users) for use of the Access Channels, facilities and equipment;
(m) If and when requested by the Board of Selectmen or its designee, cablecast public meetings of the Hingham Board of Selectmen, Hingham Town Meetings, and other meetings of Town Boards and Committees, upon reasonable notice, consistent with the funding provided to H-CAM 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 five (5) business days. If the notice of the requested coverage of a government meeting is less than five (5) business days, H-CAM shall use its best efforts to attempt to comply with such request. The Board of Selectmen has the right to establish priority with respect to cablecasting of government meetings. H-CAM 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 government meeting pursuant to the Open Meeting Law;
(n) Upon timely request of the Board of Selectmen or its designee, provide at no cost to the Town a DVD (or other appropriate media) copy of a government meeting previously cablecast by H-CAM, to the extent possible;
(o) Accomplish such other tasks relating to the operation, scheduling, and/or management of the Public Access Channel, facilities and equipment as H-CAM may consider appropriate and necessary;
(p) Take any other actions necessary to carry out the obligations with respect to Public Access that are set out in Section 6.2 of the Comcast License Agreement with the Town.
SECTION 4. ANNUAL FUNDING FOR PEG ACCESS
(a) In order to fulfill its obligations pursuant to Section 3 supra, the Town shall provide to H-CAM funding for annual support for Public Access operations an amount equal to eighty percent (80%) of the grant funding provided to the Town by Comcast for PEG Access Support pursuant to Section 6.4 of the Comcast License Agreement with the Town and provided to the Town by Verizon for PEG Access Support pursuant to Section 5.4 of the Verizon License Agreement with the Town.
(b) To the extent that H-CAM provides scheduling, programming, cablecasting, operating, technical, or maintenance services for the Government Access Channel pursuant to Section 3(b) or 3(m) supra, the Town will reimburse H-CAM for the cost of providing those services. The Town and H-CAM agree to negotiate in good faith to agree upon the cost of the services provided by H-CAM to the Government Access Channel.
(c) To the extent that H-CAM provides scheduling, programming, cablecasting, operating, technical, or maintenance services for the Educational Access Channel pursuant to Section 3(c) supra, the Town will reimburse H-CAM for the cost of providing those services. The Town and H-CAM agree to negotiate in good faith to agree upon the cost of the services provided by H-CAM to the Educational Access Channel.
(d) Payments to H-CAM pursuant to this section shall be made on a quarterly basis, within 30 days after receipt by the Town of each PEG Access Support payment from Comcast or Verizon. The first payment pursuant to this section shall be made within 30 days of the execution of this Agreement and shall be in the amount of 80 per cent (80%) of all PEG Access Support payments received by the Town from Comcast and Verizon up to the execution date of this Agreement.
SECTION 5. CAPITAL FUNDING FOR PEG SERVICES
(c) H-CAM shall be responsible for the maintenance, repair, and replacement of all facilities and equipment purchased by H-CAM or provided to H-CAM pursuant to subsection (a) of this Section..
(d) If requested by the Town, H-CAM shall within a reasonable time not to exceed 45 days provide an inventory of all equipment acquired and/or owned by H-CAM.
(e) To secure all of its obligations under this Agreement in the event of dissolution or termination of this Agreement, H-CAM hereby grants the Town a security interest in all equipment or property (real or personal) purchased with funding provided pursuant to this Agreement. H-CAM 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 may, in the discretion of the Board of Selectmen, subordinate its interest in said equipment or property, if necessary, to finance the purchase of equipment or property. Such subordination, if made by the Board of Selectmen, shall only be with respect to the specific equipment or property that H-CAM might wish to finance. A determination by the Town not to invoke its rights to security interests pursuant to this Agreement shall not affect the obligation of H-CAM to return the subject equipment and funds to the Town (or its designee) pursuant to Section 5(f) below. To further secure its obligations pursuant to this Agreement as described above, H-CAM shall take such reasonable actions as requested by the Board of Selectmen or its designee with respect to any funds provided to H-CAM by the Town and which have not as of that time been expended by H-CAM, including, but not limited to, listing the Town as a beneficiary on any such account holding such funding.
(f) All equipment and property provided to H-CAM by the Town and purchased by H-CAM with grant funds provided by the Town shall at all times remain under the exclusive control of H-CAM, which shall have the right to determine appropriate rules, procedures, and guidelines for the use of said equipment and to amend those rules, procedures, and guidelines from time to time. H-CAM shall provide the Town with a copy of those, rules, procedures, and guidelines and any amendments thereto.
(g) In the event of dissolution of H-CAM, all equipment and property provided to H-CAM by the Town and purchased by H-CAM with funds provided by the Town shall become the property of the Town and/or its designee.
SECTION 6. FUNDING FROM OTHER SOURCES
Nothing in this Agreement shall prohibit H-CAM from obtaining funding from other sources in a lawful manner, including, but not limited to, fundraising activities and/or sponsorships.
SECTION 7. PRODUCTION OF PROGRAMMING
H-CAM shall provide appropriate facilities in which Access Users can produce programming for the PG Access Channels. H-CAM shall have complete discretion as to how best to accomplish this, including, but not limited to, operating and maintaining an Access studio, participating in the operation of a regional Access studio, and contracting for the use of studios operated and maintained by others.
SECTION 8. COMPLIANCE WITH LAWS AND REGULATIONS
H-CAM shall be governed by, operated in accordance with, and comply with all applicable laws and regulations.
SECTION 9. PROVIDING REASONABLE ACCESS TO ACCESS USERS
H-CAM shall develop and enforce policies and procedures which promote local use of the Public Access channel and make programming accessible to residents and other Access programming viewers, consistent with such programming guidelines, policies, and rules, including safe harbor provisions, as are appropriate to provide for and promote the use of Access Channels, equipment and facilities, subject to and in accordance with applicable law. In furtherance hereof, the Town acknowledges that H-CAM may require Public Access program producers to assume individual responsibility for any program-based liability, subject to the Massachusetts Cable Act, Federal Communications Commission requirements, or other applicable law. The parties acknowledge that H-CAM is not ordinarily intended to engage in pre-screening of programming, the Public Access Channel is in the nature of a conduit for third party programming, and H-CAM is not itself responsible for the content of programming of individual members of the public or for the content of third-party producers. To further the adoption of reasonable programming policies and rules, H-CAM reserves such rights as are permitted, subject to applicable law, to adopt and implement lawful guidelines and policies to implement the foregoing, including but not limited to guidelines prohibiting obscenity, copyright violation, and other forms of unprotected speech, all subject to due process if and to the extent applicable to a private access corporation, and H-CAM may adopt guidelines and policies allowing lawful scheduling practices, disclaimers, disclosures, user forms and user agreements, and allowing adoption of other lawful program-related guidelines, subject to applicable law. H-CAM may produce its own programming subject to availability of resources.
SECTION 10. NON-COMMERCIAL PROGRAMMING
(a) All Access programming cablecast by H-CAM shall be non-commercial.
(b) Nothing in the Agreement shall prohibit H-CAM from including an appropriate underwriting acknowledgment before or after a Public (but not Government) Access program, to the extent otherwise not prohibited by applicable law and or the terms of a cable license.
(c) H-CAM may charge a reasonable fee for the following services:
(i) services customarily provided to Access Users by an access corporation for a fee;
(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, except where H-CAM has agree to provide such services to the Town without a fee as set forth in Section 3(n);
(iii) Sponsorship fees; and
(iv) Membership fee(s).
SECTION 11. COPYRIGHT CLEARANCE
H-CAM shall require the respective Access User to obtain all talent and location releases as appropriate, all rights to all material cablecast and clearances from broadcast stations, networks, sponsors, music licensing organizations' representatives, and without limitation of 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. Access Users shall further identify themselves as responsible for all opinions, statements and other representations made during their program. H-CAM will reference all communications from viewers directly to the named producer of that program.
SECTION 12. INDEPENDENT CONTRACTOR
It is understood and agreed that H-CAM is an independent contractor and that no relationship of principal/agent or employer/employee exists between the Town and H-CAM. If in the performance of this Agreement any third persons are employed by H-CAM, such persons shall be entirely and exclusively under the control, direction and supervision of H-CAM. All terms of employment, including hours, wages, working conditions, discipline, hiring and discharging or any other term of employment shall be determined by H-CAM, and the Town shall have no right or authority over such persons or terms of employment. Notwithstanding varying degrees of Town direction with respect to certain matters herein, it is the intention of the Town that H-CAM be and act as a private corporation, and not as a department of the Town or as a governmental or public body, and that H-CAM therefore shall be overall responsible for the independent implementation and direction of the obligations it undertakes herein, subject to the ultimate control of H-CAM’s Board of Directors. In furtherance of the foregoing, the Town acknowledges that notwithstanding its ability to allocate certain cable license grant revenues to H-CAM, H-CAM’s Board of Directors shall retain control over the final expenditure decisions with respect to the grant funds it receives in accordance herewith. To further fulfill the Town’s intention that H-CAM be and operate as a private corporation and not as a public body, the parties acknowledge that H-CAM agrees to exercise diligent efforts to ensure that a majority of successor Boards of Directors shall be elected by the members of H-CAM. Directors appointed by the Town shall serve as liaisons to the Town. All Directors, however appointed or elected, are fiduciaries of H-CAM.
SECTION 13. RECORDS AND AUDIT
(a) H-CAM shall maintain all necessary books and records, in accordance with generally accepted accounting principles. Additionally, H-CAM shall:
(i) implement effective internal financial and operating controls for the efficient use of all grant 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 or review, prepared by an independent certified public accountant. A fiscal audit (rather than a review) shall be performed if: (a) required by applicable law or regulation, or (b) if requested in writing by the Board of Selectmen no later the end of the fiscal year. The fiscal review may, in limited circumstances, be performed by a person who is not a certified public accountant if authorized in writing by the Board of Selectmen; which authorization the Board may in its sole discretion deny.
(iv) make timely payment as due to persons and entities supplying labor, materials or services to H-CAM 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 of the Board of Selectmen or its designee, H-CAM shall, at a reasonable time(s) during normal business hours, make available any or all of its records with respect to matters involving H-CAM’s performance of its obligations under this Agreement, and shall not be with respect to records disclosing personal, proprietary, or confidential information about private citizen producers or records pertaining to program content and program-related activities of private citizens, except as may be required by applicable law or court order.
(c) The Town shall, at its cost, have the right to have the financial books and records of H-CAM reviewed by a qualified individual or firm. Nothing herein shall be deemed to diminish the responsibility of H-CAM, 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 Board of Selectmen.
(d) All capital equipment (including furniture) obtained by H-CAM will be inventoried and permanently marked, and an inventory, including invoice numbers, maintained and updated.
SECTION 14. REPORTS TO THE BOARD OF SELECTMEN
(a) For one (1) year following the execution of this Access Agreement, H-CAM shall provide a reasonably detailed semi-annual report to the Board of Selectmen and/or its designee, regarding the status and progress with respect to the current and future provision of Access operations and programming in Hingham.
(b) On an annual basis, and within thirty (30) days of filing its Annual Report (Form PC) to the Massachusetts Attorney General’s Office, H-CAM shall provide a written report to the Board of Selectmen, which Report shall include the following:
(c) If requested by the Board of Selectmen, between fifteen (15) and forty-five (45) days after the Board of Selectmen has received H-CAM’s Report to the Board of Selectmen, H-CAM shall meet with the Board of Selectmen or its designee(s), for the purpose of reviewing H-CAM’s operations, budget, programming and information contained in the Report to the Board of Selectmen for the previous year.
(d) H-CAM shall provide the following information to the Board of Selectmen on a quarterly basis:
(i) H-CAM’s Treasurer’s Reports; and
(ii) Meeting minutes for all regular meetings of H-CAM’s Board of Directors.
(e) Within thirty (30) days of filing, H-CAM shall provide a copy to the Board of Selectmen of all filings with the State and federal government, including, but not limited to, Change of Directors and/or Officers, instruments of restatement of articles of incorporation, by-laws, dissolution, and other corporate filings.
(f) H-CAM shall cooperate fully and in good faith in answering questions from the Board of Selectmen regarding reporting required under this section.
SECTION 15. ADDITIONAL MEETINGS
(a) If requested by the Board of Selectmen, H-CAM shall meet with the Board of Selectmen and/or its designee annually to provide an update. The purpose of said meeting shall include reviewing H-CAM’s compliance with the terms and conditions of this Agreement, and questions, comments and/or suggestions from the Board of Selectmen, other Town officials and personnel, and the public.
(b) H-CAM shall cooperate with the Board of Selectmen or its designee, and shall produce, at its cost, such documents or other materials relevant to such review and evaluation as are reasonably requested by the Town.
(c) H-CAM shall provide notice of all such update meetings by periodic messages on the Public Access channel.
(d) Nothing in this Section shall prohibit the Town from requesting that H-CAM attend other meetings or hearings, or compelling the attendance by H-CAM through any lawful means.
SECTION 16. PERFORMANCE REVIEW BY THIRD PARTY
No more than twice during the term of this Agreement, H-CAM shall, if requested by the Board of Selectmen, engage or retain a person or entity that is knowledgeable and experienced in Access operations in the Commonwealth of Massachusetts to conduct a performance review of H-CAM’s operations, the cost to be borne by H-CAM. Upon completion, H-CAM shall submit a copy of the performance review to the Board of Selectmen.
SECTION 17. INDEMNIFICATION OF TOWN BY H-CAM
H-CAM 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 H-CAM, its officers, employees, volunteers, agents or subcontractors 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 H-CAM’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
H-CAM 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) Commercial General Liability Insurance - Commercial general 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.
(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 One Million Dollars ($1,000,000) over the insurance required by Subparagraphs (a) and (b) above.
(d) Business Personal Property Insurance - Business personal property insurance 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 H-CAM has an employee.
(f) Cablecaster’s Errors and Omission Insurance - H-CAM 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 H-CAM without first giving the Town thirty (30) days written notice prior to the effective date of such cancellation or change in coverage;
(ii) All liability insurance shall be written on an “occurrence basis”.
(iii) 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;
(iv) 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;
(v) The coverage amounts set forth above may be met by a combination of underlying and excess/umbrella policies so long as in combination the limits equal or exceed those required herein and follow the same form;
(vi) The cost of such insurance, including all premiums and deductibles, shall be borne by H-CAM;
(vii) 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;
(viii) The failure of H-CAM to maintain the insurance required herein shall be grounds for the Town to suspend this Agreement, subject to the procedures provided in Section 20 below, subject to an abbreviated cure period as reasonably directed by the Board of Selectmen; provided, however, that if any insurance maintained by H-CAM is terminated through no fault of H-CAM, then H-CAM shall have thirty (30) days to obtain replacement insurance that complies with this Agreement or any amendment thereto before the Town may suspend or terminate this Agreement; and
(ix) If the Town’s own minimum coverage amount for any of the insurance referenced above is higher than that required herein of H-CAM or otherwise increases, the Board of Selectmen may require H-CAM to increase its corresponding insurance coverage within twelve (12) months of written notification by the Board of Selectmen to H-CAM, unless such increased insurance coverage is commercially unavailable or available only at an unreasonable cost to H-CAM.
(h) Directors’ and Officers’ Liability Insurance - H-CAM shall obtain directors’ and officers’ liability insurance for its directors and officers.
SECTION 19. ASSIGNMENT AND TRANSFER
Neither this Agreement nor any interest or responsibility herein shall be assigned or transferred by H-CAM, except as expressly authorized in writing by the Town through its Board of Selectmen.
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 H-CAM to terminate this Agreement for:
(i) Malfeasance, misfeasance, misappropriation or waste of funds provided pursuant to this Agreement;
(ii) Loss of (or failure to obtain in a reasonable time) 501(c)(3) status by H-CAM;
(iii) The loss of a substantial portion of 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 rendering this Agreement substantially inconsistent with the intention of the parties; or
(iv) For any material breach of a material provision of this Agreement by H-CAM as further described in this Section 20 below.
(b) H-CAM may avoid termination by curing any such breach within sixty (60) days of written notification or such longer time as the Board of Selectmen determines. Upon a third (3rd) material breach by H-CAM 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) H-CAM 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.
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 a written instrument 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 Warranties
H-CAM warrants, represents and acknowledges that as of the date of execution of this Agreement:
(a) H-CAM is a duly organized, validly existing and in good standing non-profit corporation under the laws of the Commonwealth of Massachusetts and is actively seeking approval from the Internal Revenue Service as a 501(c)(3) charitable corporation.
(b) H-CAM has the requisite power and authority under applicable law and its articles of incorporation and by-laws, is authorized by resolutions of its Board of Directors, and has secured all consents which are required to be obtained as of the date of execution of this Access Agreement, to enter into and legally bind H-CAM to this Agreement, and to take all actions necessary to perform all of its obligations pursuant to this Agreement;
(c) This Access Agreement is enforceable against H-CAM in accordance with the provisions herein; and
(d) There is no action or proceeding pending or threatened against H-CAM which would interfere with its performance of this Access Agreement.
Section 21.6 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 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, 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 upon learning of the Force Majeure occurrence covered by this Section which affects or will affect its performance under this Agreement, promptly notify the other party in writing of said claimed occurrence.
Section 21.7 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 21.8 Severability
(a) If any non-material section, sentence, paragraph, term or provision of this Agreement is determined to be illegal, invalid, unenforceable or unconstitutional or is otherwise void, by any court of competent jurisdiction or other entity with similar legal authority, 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.
(b) In the event that a material section, sentence, paragraph, term or provision of this Agreement is determined to be illegal, invalid, unenforceable or unconstitutional or is otherwise void, by any court of competent jurisdiction or other entity with similar legal authority, the parties agree to immediately enter into negotiations in good faith and make equitable amendments to restore the relative burdens and benefits of this Access Agreement. Notwithstanding the foregoing, if a party believes a provision is not material, it must so notify the other party within thirty (30) days of a request by such other party that it enter into negotiations to make amendments, or else the claim of non-materiality is waived. The obligation to negotiate is not tolled by, and the parties must discharge their negotiation responsibility notwithstanding, a dispute as to materiality. The remedies provided for herein do not prevent a party from contending that a particular provision is enforceable, or foreclose any remedies if a provision is enforceable.
Section 21.9 Applicable Law
This Agreement shall be interpreted and enforced under the laws of the Commonwealth of Massachusetts.
Section 21.10 Jurisdiction and Venue
Jurisdiction and venue of any legal action arising from this Access Agreement shall be in the Superior Court in Plymouth, Massachusetts. If no subject matter jurisdiction exists in the Superior Court, the legal action shall be brought in the District Court in Hingham. The parties by this Access Agreement subject themselves to the personal jurisdiction of said courts for all purposes, including the entry of judgment and for the resolution of any dispute, action or suit.
Section 21.11 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 HINGHAM HINGHAM COMMUNITY ACCESS AND MEDIA, INC
Board of Selectmen ______________________________________
Hingham Town Hall
210 Central Street ______________________________________
Hingham, Massachusetts 02043-2759
with a copy to: the Town Administrator at the same address
Section 21.12 Amendment
Amendments to this Agreement shall be mutually agreed to and in writing executed by the Board of Directors of H-CAM and the Board of Selectmen for the Town.
IN WITNESS WHEREOF, the parties have executed this Agreement as a sealed instrument as of the date first written above.
TOWN OF HINGHAM HINGHAM COMMUNITY ACCESS AND MEDIA, INC.
By Board of Selectmen
By its President (as authorized by a vote of its Board of Directors)
Bruce Rabuffo, Chair
Laura M. Burns
John A. Riley
Approved as to legal form: