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, 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 § 259-13 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 sent 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:
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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 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, nonowned, 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.
