A.
Letter of credit. The franchisee shall, concurrently with its acceptance
of the franchise, file with the Town a letter of credit in an amount
to be determined by the Town, in a bank or savings and loan association
in the Town.
B.
Conditions. The letter of credit shall provide the following conditions:
(1)
There shall be recoverable by the Town, jointly and severally against
the letter of credit for the following: any and all fines, penalties
and liquidated damages due to the Town for any and all damages, losses,
costs and expenses suffered or incurred by the Town resulting from
the failure of the grantee to faithfully comply with the provisions
of this chapter and the franchise; pay fees due to the Town; pay any
claims, liens or taxes due the Town which arise by reason of the construction,
operation, maintenance or repair of the cable/video system. Such losses,
costs and expenses shall include but not be limited to attorney's
fees and other associated expenses. The total amount of the letter
of credit shall be forfeited in favor of the Town if:
(2)
Claim. Prior to filing a claim upon the letter of credit for the
purposes described in this section, the Town shall demand that the
grantee perform its obligations, and if the grantee fails to do so
within 30 days, the Town shall notify the grantee in writing that
payment is due and demand complete payment. If the grantee does not
make the payment within 10 days, the Town may claim the amount thereof,
with interest and penalties, from the letter of credit.
(3)
Replenishment. No later than 30 days after any reduction of any amount
of the letter of credit, the grantee shall replenish the instrument
in an amount equal to the amount so withdrawn.
(4)
Nonrenewal, alteration, cancellation. The letter of credit required
in this section shall be in a form satisfactory to the Town and shall
require 30 days' written notice to both the Town and grantee of any
nonrenewal, alteration or cancellation. The grantee shall, in the
event of any such cancellation notice, obtain, pay all premiums for,
and file with the Town written evidence of the issuance of a replacement
letter of credit within 30 days following receipt by the Town or the
grantee of any such notice of cancellation.
(5)
Increase in amount. To offset the effects of inflation, the amounts
of the letter of credit provided for in this section 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 Town.
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 of the franchise, the grantee
shall furnish to the Town certificates of insurance, approved by the
Town, for all types of insurance required under this section. Failure
to furnish the certificates of insurance in a timely manner shall
constitute a violation of this chapter.
B.
Required provisions. The grantee shall furnish the Town a certificate as the evidence of insurance coverage required by these provisions. The certificate shall include a thirty-day notification to the Town in the event of cancellation, exhaustion of policy aggregates, nonrenewal or reduction of coverage of policy limits. Language on the certificate that relieves the insurance company and its agents from liability for failure to provide such notice shall be deleted. The endorsement required by Subsection D of this section shall be attached to the certificate. The Town reserves the right to require a complete, certified copy of the required insurance policy, at any time. The grantee shall provide certificates annually after renewal of coverage.
C.
Liability waiver not authorized. Neither the provisions of this section
nor any damages recovered by the Town under this section shall be
construed to limit the liability of the grantee under any franchise
issued under this chapter for damages.
D.
Endorsement. All insurance policies maintained pursuant to this chapter
or the franchise shall contain the following, or a comparable, endorsement:
"The Town is recognized as an insured for the purpose of receiving
30 days' notice of nonrenewal, reduction of coverage or policy
limits, exhaustion of policy limits or cancellation for any reason,
and the company shall agree to provide such notice."
E.
Hold harmless. All contractual liability insurance policies maintained
pursuant to this chapter or the franchise shall include the following
hold-harmless clause: "The grantee agrees to indemnify, save harmless
and defend the Town, its officials, agents, servants and employees,
and each of them from and against and hold each of them harmless from
any and all lawsuits, claims (including without limitation workers'
compensation claims against the Town or others), demands, liabilities,
losses and judgments for personal injury, death, property damage,
or the infringement of rights, arising out of or in any way related
to the construction, operation, maintenance or ownership of the cable/video
system, or otherwise from the exercise or performance of any actions
taken, or alleged to have been taken under the franchise or this chapter."
This indemnity shall apply in any and all cases, save and except only
those cases in which the injury, death, damage, loss, claim or demand
is caused by, or results from, the direct negligence or intentional
conduct of the Town, its agents, public officials or employees.
F.
Authorized insurers. All insurance policies provided under provisions
of this chapter or the franchise shall be written by a company or
companies authorized to do business in the state, and approved by
the State Department of Insurance.
G.
Additional named insured. At any time during the time of the franchise,
the Town may request the grantee, and the grantee shall comply with
such request, to name the Town as an additional named insured for
all insurance policies, except worker's compensation, written
under the provision of this chapter or the franchise.
H.
Inflation adjustment required. To offset the effects of inflation
and to reflect changing liability limits, all of the coverage, limits
and amounts of the insurance provided for in this section are subject
to reasonable increases at the end of every three-year period of the
franchise, applicable to the next three-year period, in an amount
determined by the Town.
I.
General liability insurance.
(1)
The
grantee shall maintain, and by its acceptance of any franchise granted
under this chapter specifically agrees that it will maintain throughout
the term of the franchise, general liability insurance insuring the
grantee in the minimum of:
(2)
Coverage. 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.
J.
Automobile liability insurance. The grantee shall maintain, and by
its acceptance of any franchise granted under this chapter specifically
agrees that it will maintain throughout the term of the franchise,
automobile liability insurance for owned, or leased, or rented vehicles
in the minimum amount of $2,000,000 combined single limit per accident
for bodily injury and property damage.
K.
Umbrella/Excess liability. At the option of the grantee, the limits
of the primary general liability and auto liability may be less than
stipulated in this section, with an excess policy providing the additional
limits needed. This form of coverage must be approved by the Town
and will only be acceptable when excess coverage is at least as broad
as the primary policy.
L.
Worker's compensation and employer's liability insurance. The
grantee shall maintain, and by its acceptance of any franchise granted
under this chapter 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.
Indemnification required. The grantee shall, as its sole cost and
expense, fully indemnify, defend and hold harmless the Town, its officials,
agents, servants and employees from and against any and all lawsuits,
claims, causes of action, liability and judgments for injury or damages
(including but not limited to expenses for reasonable legal fees and
disbursements and liabilities assumed by the Town in connection therewith):
(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,
to which the grantee's negligence shall in any way contribute,
unless caused by negligence or other fault of the Town, its agents,
servants or employees, or any other person indemnified under this
chapter.
(2)
Arising out of any claim for invasion of the right of privacy, for
defamation of any person, or the violation or infringement of any
copyright, trademark, trade name, service mark or patent, or any other
right of any person, but excluding claims arising out of or related
to Town programming.
(3)
Arising out of the grantee's failure to comply with the provisions
of any federal, state or local statute, ordinance or regulation applicable
to the grantee in its business under this chapter.
B.
The foregoing indemnity is conditioned upon the following: The Town
shall give the grantee prompt notice of any claim or the commencement
of any action, suit or other proceeding covered by the provisions
of this section. Nothing in this section shall be deemed to prevent
the Town from cooperating with the grantee and participating in the
defense of any litigation by its own counsel at its sole cost and
expense. No recovery by the Town of any sum by reason of the liquidated
damages required by the franchise shall be subject to litigation by
the grantee, except that any sum so received by the Town shall be
deducted from any recovery that the Town might have against the grantee
under the terms of this section.
