A.
Construction and performance bond. Prior to the effective
date of the franchise, the grantee shall obtain and maintain during the entire
term of any franchise and any extensions and renewals thereof, at its cost
and expense, and file with the township a construction bond and a performance
bond in amounts specified in the franchise to guarantee the faithful performance
of the grantee of its obligations as specified below. Failure to timely obtain,
file and maintain said bonds shall constitute a violation within the meaning
of this section. Such bond must be issued by a surety and in a form acceptable
to the township.
B.
Conditions. The construction and performance bond shall
be issued by a surety licensed to do business in Pennsylvania and shall provide
the following conditions: there shall be recoverable by the township from
the principal and surety jointly and severally any and all fines and liquidated
damages due to the township and any and all damages, losses, costs and expenses
suffered or incurred by the township resulting from the failure of the grantee
to faithfully comply with all orders, permits and directives of the township
related to the construction, maintenance or repair of the cable communications
system; pay fees due to the township; pay any claims, liens or taxes due the
township which arise by reason of the construction, operation, maintenance
or repair of the cable system; and pay any liquidated damages owed to the
township. Such losses, costs and expenses shall include but not be limited
to attorneys' fees and other associated expenses.
C.
Construction bond removal. The construction bond shall
remain in force until completion of the rebuild as specified in the franchise.
Upon written application by the grantee, the township will certify completion
as specified in the franchise agreement and then waive the requirement for
the grantee to provide a construction bond.
D.
Use of construction or performance bond. Prior to drawing
upon the construction bond or the performance bond for the purposes described
in this section, the township shall notify the grantee, in writing, that payment
is due, and the grantee shall have 10 days from the receipt of such written
notice to make a full and complete payment. If the grantee does not make the
payment within 10 days, the township may withdraw the amount thereof, with
interest and penalties, from the construction bond and/or the performance
bond.
E.
Notification. Within three days of a withdrawal from
the construction bond and/or performance bond, the township shall send to
the grantee, by certified mail, return receipt requested, written notification
of the amount, date and purpose of such withdrawal.
F.
Replenishment of construction bond and/or performance bond. No later than 30 days after mailing to the grantee, by certified mail, notification of a withdrawal pursuant to Subsection E above, the grantee shall replenish the construction bond and/or performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the construction bond and/or performance bond shall constitute a material violation of this ordinance.
G.
Nonrenewal, alteration or cancellation of construction
bond and/or performance bond. The performance bond and construction bond required
herein shall be in a form satisfactory to the township and shall require 30
days' written notice of any nonrenewal, alteration or cancellation to
both the township and the grantee. The grantee shall, in the event of any
such cancellation notice, obtain, pay all premiums for and file with the township
written evidence of the issuance of replacement bond or policies within 30
days following receipt by the township or the grantee of any notice of cancellation.
H.
Township rights. The rights reserved to the township
with respect to the performance bond or construction bond are in addition
to all other rights of the township, whether reserved by this ordinance, the
franchise or authorized by law, and no action, proceeding or exercise of a
right with respect to such a performance bond or construction bond shall affect
any other right the township may have.
I.
Surety bonds. Any bonds provided by the grantee shall
be purchased by the grantee from a company licensed to do business in the
Commonwealth of Pennsylvania with an A rating in the BEST's insurance
rating. Any suit under this bond shall be adjudicated in Montgomery County,
Pennsylvania.
J.
Insurance for contractor and subcontractors. The grantee
shall provide coverage for any contractor or subcontractor involved in the
construction, installation, maintenance or operation of its cable communications
system by either obtaining the necessary endorsements to its insurance policies
or requiring such contractor or subcontractor to obtain appropriate insurance
coverage consistent with this section and appropriate to the extent of its
involvement in the construction, installation, maintenance or operation of
the grantee's cable communications system.
A.
Certificate of insurance. Prior to commencement of construction,
but in no event later than 60 days after the effective date of the franchise
and thereafter continuously throughout the duration of the franchise and any
extensions or renewals thereof, the grantee shall furnish to the township
certificates of insurance, approved by the township, for all types of insurance
required under this section. Failure to furnish said certificates of insurance
in a timely manner shall constitute a violation of this ordinance. At the
township's request, the grantee shall furnish copies of any or all policies
which are in effect from time to time.
B.
Filing. Any insurance policy obtained by the grantee in compliance with this section shall be filed and maintained with the township during the term of the franchise, and from time to time the township may require, consistent with Subsection G, and the grantee shall furnish, changes in such policies to reflect changing liability limits and/or to compensate for inflation. The grantee shall immediately advise the township of any litigation that may develop that would affect this insurance.
C.
No liability limit. Neither the provisions of this section
or any damages recovered by the township hereunder shall be construed to nor
limit the liability of the grantee for damages under any franchise issued
hereunder.
D.
Endorsement. All insurance policies maintained pursuant
to this ordinance or the franchise shall contain the following, or a comparable,
endorsement:
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It is hereby understood and agreed that this insurance policy may not
be modified or canceled by the insurance company nor the intention not to
renew be stated by the insurance company until 30 days after receipt by the
Township Manager, by registered mail, of a written notice of such intention
to cancel or not to renew.
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E.
Hold harmless clause. All contractual liability insurance
policies maintained pursuant to this ordinance or the franchise shall include
the provision of the following hold harmless clause:
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The grantee agrees to indemnify, save harmless and defend the township,
its agents, servants and employees and each of them against and hold it and
them harmless from any and all lawsuits, claims, demands, liabilities, losses
and expenses, including court costs and reasonable attorneys' fees for
or on account of any injury to any person, or any death at any time resulting
from such injury, or any damage to any property, which may arise or which
may be alleged to have arisen out of or in connection with the work covered
by the franchise and performed or caused to be performed by the grantee, its
employees, agents and contractors or their successors.
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F.
Commonwealth institution. All insurance policies provided
under the provisions of this ordinance or the franchise shall be written by
companies authorized to do business in the Commonwealth and approved by the
Commonwealth.
G.
Names insured. The township will be named as an additional
insured on all general liability policies issued to the grantee.
H.
Inflation. To offset the effects of inflation and to
reflect changing liability limits, all of the coverages, limits and amounts
of the insurance provided for herein are subject to reasonable increases at
the end of every three-year period of the franchise, applicable to the next
three-year period, at the reasonable discretion of the township.
I.
Commercial general liability insurance. The grantee shall
maintain and, by its acceptance of any franchise granted hereunder, specifically
agrees that it will maintain throughout the term of the franchise general
liability insurance insuring the grantee in the minimum of:
J.
Policy inclusions. Such general liability insurance must
include coverage for all of the following: comprehensive form, premises- operations,
explosion and collapse hazard, underground hazard, products/completed operations
hazard, contractual insurance, broad form property damage and personal injury.
K.
Automobile liability insurance. The grantee shall maintain,
and by its acceptance of any franchise granted hereunder specifically agrees
that it will maintain throughout the term of the franchise automobile liability
insurance for owned, nonowned or rented vehicles in the minimum amount of:
L.
Workers' compensation and employer's liability
insurance. The grantee shall maintain and by its acceptance of any franchise
granted hereunder specifically agrees that it will maintain throughout the
term of the franchise, workers' compensation and employers' liability,
valid in the Commonwealth, in the minimum amount of:
M.
No limitation on liability. None of the provisions of
this ordinance or any insurance policy required herein, or any damages recovered
by the township hereunder, shall be construed to excuse the faithful performance
by or limit the liability of the grantee under this ordinance or the franchise
for damages either to the limits of such policies or otherwise.
A.
The grantee shall, at its sole cost and expense, fully
indemnify, defend and hold harmless the township, its officers, boards and
commissions and township employees against any and all claims, suits, actions,
liability and judgments for damages (including but not limited to expenses
for reasonable legal fees and disbursements and liabilities assumed by the
township in connection therewith, but excluding claims, suits, actions, liabilities,
judgments or damages that are the result of negligence or deliberate acts
or omission of the township, its officers, employees, agents, boards or commissions):
(1)
To persons or property in any way arising out of or through
the acts or omissions of the grantee, its servants, agents or employees.
(2)
Arising out of any claim for invasion of the right of
privacy, for defamation of any person, firm or corporation or the violation
or infringement of any copyright, trademark, trade name, service mark or patent
or of any other right of any person, firm or corporation by virtue of the
grantee's business operations other than operation of any PEG access
or leased access channels over which the grantee exercises no editorial control.
(3)
Arising out of the grantee's failure to comply with
the provisions of any federal, state or local statute, ordinances or regulation
applicable to the grantee in its business hereunder.
B.
The foregoing indemnity is conditioned upon the following:
the township shall give the grantee timely notice of any claim or the commencement
of any action, suit or other proceeding covered by the provisions of this
section. The grantee will provide the defense of any claims brought against
the township under this section of the franchise by selecting counsel of the
grantee's choice to defend the claim, subject to the reasonable consent
of the township, which will not unreasonably be withheld. Nothing herein shall
be deemed to prevent the township from cooperating with the grantee and participating
in the defense of any litigation by its own counsel at its own costs and expense.
No recovery by the township of any sum by reason of the liquidated damages
required by the franchise shall be deducted from any recovery which the township
might have against the grantee under the terms of this section; provided,
however, that the grantee shall have the right to defend, settle or compromise
any claim or action arising hereunder, and the grantee shall have the sole
authority to decide the appropriateness and the amount of any such settlement.
