A.
Performance bond. Upon the effective date of the franchise,
the grantee shall obtain and maintain during the entire term of the
franchise and any extensions and renewals thereof, 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 and
liquidated damages 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; comply with all orders, permits and directives of any Borough
agency or body having jurisdiction over its acts or defaults; pay
fees due to the Borough; and pay any claims, liens or taxes due the
Borough which arise by reason of the construction, operation, maintenance
or repair of the cable communication system. Such losses, costs and
expenses shall include but not be limited to attorney's fees 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 § 126-13 for either of the following two reasons:
(a)
The grantee abandons the cable communication
system at any time during the term of the franchise or any extension
thereto; or
(b)
The grantee assigns 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 30 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 an 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 or 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 10 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 the 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.
I.
To offset the effects of inflation, the amounts of
the bond or letter of credit 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, upon the determination of
the Borough.
A.
Within 10 days after the effective date of a franchise
agreement, the grantee shall deposit with the grantor and maintain
on deposit through the term of this franchise, in cash, such sum as
specified in the franchise agreement, as security for the payment
of any fees, liquidated damages or penalties imposed under this chapter.
Said sum shall be placed by the grantor in an interest-bearing account.
B.
Within 10 days after notice to the grantee that any amount has been withdrawn from the security fund deposited pursuant to Subsection A of this section, the grantee shall pay to, or deposit with, the grantor a sum of money or securities sufficient to restore such security fund to the original amount as specified in the franchise agreement.
C.
The security fund deposited pursuant to this section
shall become the property of the grantor in the event that this franchise
is canceled by reason of default of the grantee. The grantee, however,
shall be entitled to the return of such security fund, or portion
thereof, as remains on deposit with the grantor at the expiration
of the term of this franchise, provided that there is then no outstanding
default on the part of the grantee.
D.
The rights reserved to the grantor with respect to
the security funds are in addition to all other rights of the grantor,
whether reserved by this chapter or authorized by law, and no action,
proceeding or exercise of a right with respect to such security funds
shall affect any other right the grantor may have.
A.
Within 30 days after the effective date of the franchise
agreement and thereafter continuously through the duration of the
franchise and any extensions or renewals thereof, the grantee shall
furnish to the Borough certificates of insurance, approved by the
Borough, 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 chapter.
B.
Any insurance policy obtained by the grantee in compliance
with this section shall be filed and maintained with the Borough during
the term of the franchise, and may be changed from time to time to
reflect changing liability limits and/or to compensate for inflation.
Grantee shall immediately advise the Borough of any litigation that
may develop that would affect this insurance.
C.
Neither the provisions of this section, nor any damages
recovered by the Borough hereunder, shall be construed to or limit
the liability of the grantee under any franchise issued hereunder
or for damages.
D.
All insurance policies maintained pursuant to this
chapter or the franchise agreement shall contain the following, or
a comparable, endorsement:
"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 Manager, by registered mail,
of a written notice of such intention to cancel or not to renew."
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E.
All insurance policies maintained pursuant to this
chapter or the franchise agreement shall name the Borough as an additional
insured.
F.
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.
G.
At any time during the term of the franchise, the
Borough may request and the grantee shall comply with such request,
to name the Borough, all elected Borough officials, and Borough employees
with cable related responsibilities as additional named insured for
all insurance policies written under the provisions of this chapter
or the franchise agreement.
H.
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, upon the determination of the Borough
by resolution.
I.
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 for a minimum of
$50,000,000 for all damage, injury, accident, or death.
J.
Libel and allied torts. The grantee shall maintain
a libel and allied torts insurance policy in an amount specified in
the Franchise Agreement.
K.
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.
L.
Motor vehicle 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, motor vehicle liability insurance for owned, non-owned,
or rented vehicles in the minimum of:
M.
Worker's 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, worker's compensation and employer's liability,
valid in the State, in the minimum amount of:
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 of any copyright, trademark, trade name,
service mark or patent, or any other right of any person, firm or
corporation, 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 to comply with the
provisions of any federal, state, or local statute, ordinances or
regulation applicable to grantee in its business hereunder.
(4)
Arising out of any action or claim related to obscenity,
indecency or sexually explicit programming.
B.
The foregoing indemnity is conditioned upon the following:
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 expense.
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