A.
Performance bond. Upon the effective date of the franchise,
the grantee shall obtain and maintain during the entire term of the franchise,
at its cost and expense, and file with the Borough, a corporate surety bond
in such sum as specified in the franchise agreement to guarantee the faithful
performance by the grantee of all its obligations provided under this chapter
and the franchise agreement. Failure to timely obtain, file and maintain said
bond shall constitute a substantial violation within the meaning of this section.
B.
Conditions. The performance bond shall provide the following
conditions:
(1)
There shall be recoverable by the Borough jointly and
severally from the principal and surety any and all fines due to the Borough,
as specified in the franchise agreement, and any and all damages, losses,
costs and expenses suffered or incurred by the Borough resulting from the
failure of the grantee to faithfully comply with the provisions of this chapter
and the franchise agreement and pay fees due to the Borough. Such losses,
costs and damages shall include but not be limited to attorney's fees
of the Borough and other associated expenses.
(2)
The total amount of the bond shall be forfeited in favor of the Borough in the event that the Borough revokes the franchise pursuant to § 35-13 for the two following reasons:
(a)
The grantee abandons the cable system at any time during
the term of the franchise or any extension thereto; or
(b)
The grantee transfers the franchise without the express
written consent of the Borough, provided that the grantee has been notified
of such noncompliance in writing by the Borough and has failed to cure same
within 60 days.
C.
Reduction of bond. Upon written application by the grantee,
the Borough may, at its sole option, permit the amount of the bond to be reduced
or waive the requirements for a performance bond subject to the conditions
set forth below. Reductions granted or denied upon application by the grantee
shall be without prejudice to the grantee's subsequent applications or
to the Borough's right to require the full bond at any time thereafter.
D.
Letter of credit. If requested by the Borough in lieu
of the performance bond required by this section, the grantee shall obtain,
maintain and file with the Borough an irrevocable letter of credit from a
financial institution licensed to do business in the state in any amount specified
in the franchise agreement, naming the Borough as beneficiary. The form and
contents of such letter of credit shall be approved by the Borough and shall
be released only upon expiration of the franchise and upon the replacement
of the letter of credit by a successor grantee. Failure to obtain the letter
of credit within the time specified herein shall constitute a substantial
violation within the meaning of this chapter.
E.
Use of performance bond or letter of credit. Prior to
drawing upon the letter of credit or the performance bond for the purposes
described in this section, the Borough shall notify the grantee in writing
specifying the item for which payment is claimed and the date it was due.
The grantee shall have 30 days from the receipt of such written notice to
make a full and complete payment. If the grantee does not make the payment,
the Borough may withdraw the amount thereof, with interest and penalties,
from the letter of credit or the performance bond.
F.
Notification. Within three days of a withdrawal from
the letter of credit or performance bond, the Borough shall send to the grantee,
by certified mail, return receipt requested, written notification of the amount,
date and purpose of such withdrawal.
G.
Replenishment of letter of credit or performance bond. No later than 30 days after mailing to the grantee by certified mail notification of a withdrawal pursuant to Subsection F above, the grantee shall replenish the letter of credit or performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the letter of credit or performance bond shall constitute a substantial violation of this chapter.
H.
Nonrenewal, alteration or cancellation of letter of credit
or performance bond. The performance bond or letter of credit required herein
shall be in a form satisfactory to the Borough and shall require 30 days written
notice of any nonrenewal, alteration or cancellation to both the Borough and
the grantee. The grantee shall, in the event of any such cancellation notice,
obtain, pay all premiums for and file with Borough written evidence of the
issuance of replacement bond or letter of credit within 30 days following
receipt by the Borough or the grantee of any notice of cancellation.
A.
Throughout the term of this franchise agreement, the
grantee shall, at its own cost and expense, maintain comprehensive general
liability insurance and provide the franchising authority a certificate of
insurance designating the Borough and its officers, boards, commissions, councils,
elected officials, agents and employees as additional insureds and demonstrating
that the grantee has obtained the insurance required in this section. Within
30 days after the effective date of the franchise agreement and thereafter
upon request, the grantee shall furnish to the Borough a certificate of insurance
for the types of insurance required under this section.
B.
All insurance policies maintained pursuant to this chapter
or the franchise agreement 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 canceled by the insurance company nor the intention not to renew be stated
by the insurance company until 30 days after receipt by the Borough of a written
notice of such intention to cancel or not to renew."
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C.
All insurance policies provided under the provisions
of this chapter or the franchise agreement shall be written by companies authorized
to do business in the state and approved by the State Insurance Commission.
D.
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, liability insurance
insuring the grantee and Borough with regard to all claims for injury or damage
to persons or property, both real and personal, caused by the construction,
installation, operation or maintenance of its cable system in the following
minimal amounts:
E.
Automobile liability insurance. Automobile Liability
Insurance. Grantee shall maintain, and by its acceptance of any franchise
granted hereunder specifically agrees that it will maintain throughout the
term of the franchise agreement, automobile liability insurance for owned,
nonowned or rented vehicles in the minimum amount of:
F.
Worker's compensation. 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, worker's
compensation, valid in the state, at or above the minimum statutory limit
for worker's compensation.
A.
To the fullest extent permitted by law, grantee shall,
at its sole cost and expense, fully indemnify, defend and hold harmless the
Borough, its officers, public officials, boards and commissions, agents and
employees from and against any and all lawsuits, claims (including, without
limitation, worker's compensation claims against the Borough or others),
causes of action, actions, liability and judgments for injury or damages (including
but not limited to expenses for reasonable legal fees and disbursements assumed
by the Borough in connection therewith):
(1)
To persons or property in any way arising out of or through
the acts or omissions of grantee, its subcontractors, 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
of infringement or any copyright, trademark, trade name, service mart or patent,
or any other right of any person, firm or cooperation, but excluding claims
arising out of or related to Borough programming or programming for which
the grantee is not legally responsible.
(3)
Arising out of grantee's failure or comply with
the provisions of any federal, state or local statute, ordinances or regulations
applicable to grantee in its business hereunder.
(4)
Arising out of any action or claim related to obscenity,
indecency or sexually explicit programing deemed to be under the control of
the grantee.
B.
The foregoing indemnity is conditioned upon the following:
(1)
The Borough shall give grantee prompt notice of any claim
or the commencement of any action, suit or other proceeding covered by the
provisions of this section. Nothing herein shall be deemed to prevent the
Borough from cooperating with the grantee and participating in the defense
of any litigation by its own counsel at its own costs and expenses.
