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 an amount specified
in the franchise to guarantee the faithful performance of the grantee
of all its obligations provided under this chapter and the franchise.
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 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; 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; or pay any claims, liens or
taxes due the Borough which arise by reason of the construction, operation,
maintenance or repair of the cable system. Such losses, costs and
expenses shall include but not be limited to attorney's fees
and other associated expenses.
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. However, no application shall be made by the
grantee within one year of any prior application.
D.
Construction bond. The grantee shall maintain and by its acceptance
of any franchise granted hereunder agrees that it will maintain through
the rebuild or construction of the cable television system as required
by this chapter or the franchise, a faithful construction bond in
an amount specified in the franchise conditioned upon the faithful
performance of the grantee in the construction or rebuild of a cable
television system complying with related provisions of this chapter
and the franchise, and upon the further condition, that if the grantee
shall fail to comply with any law, ordinance or regulation governing
the construction or rebuild of the cable television system, there
shall be recoverable jointly and severally from the principal and
surety of the bond, any damages or loss suffered by the Borough as
a result, including the full amount of any compensation, indemnification,
or cost of repair, construction, removal or abandonment of any property
of the grantee, plus attorney's fees and costs, up to the full
amount of the bond.
E.
Use of performance bond and construction bond. Prior to drawing upon
the performance bond or the construction bond for the purposes described
in this section, the Borough shall give the grantee written notice
of its intent to draw on the bond. Said notice shall detail the basis
for drawing on the bond and, if the grantee has not already been provided
with a written notice of violation and an opportunity to correct the
violation, the notice provided under this subsection shall provide
the grantee with a minimum of 30 days to remedy the matter. If the
matter is not remedied within the cure period specified in the applicable
notice, 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 Borough may withdraw the amount
thereof, with interest, from the performance bond. Nothing herein
shall preclude the Borough from taking action in emergency situations
without the thirty-day period specified above.
F.
Notification. Within three days of a withdrawal from the performance
bond or construction 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 performance bond and construction 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 performance bond and/or construction bond in an amount equal to the amount so withdrawn.
H.
Nonrenewal, alteration, or cancellation of performance bond and construction
bond. The performance bond and construction bond 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 policies within 30 days following receipt by the Borough or the
grantee of any notice of cancellation.
I.
Inflation. To offset the effects of inflation, the amount of the
performance bond provided for herein, is subject to reasonable adjustment
as provided in the franchise.
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 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.
Filing. Any insurance policy obtained by the grantee in compliance with this section shall be filed and maintained with the Borough Manager 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 consistent with Subsection H below. Grantee shall immediately advise the Borough 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 Borough hereunder shall be construed to or
limit the liability of the grantee under any franchise issued hereunder
or for damages.
D.
Endorsement. All insurance policies maintained pursuant to this chapter
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 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.
Hold harmless clause. All contractual liability insurance policies
maintained pursuant to this chapter 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
Borough, its officials, 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 attorney's 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 grantee,
its employees, agents and contractors or their successors. The foregoing
indemnity shall apply except if such injury, death or damage is caused
directly by the negligence or other fault of the Borough, its agents,
servants, or employees or any other person indemnified hereunder."
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F.
Commonwealth institution. All insurance policies provided under the
provisions of this chapter or the franchise shall be written by companies
authorized to do business in the commonwealth, and approved by the
Pennsylvania Department of Insurance.
G.
Named insured. 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 as an additional named insured for all insurance
policies written under the provisions of this chapter or the franchise.
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, upon the determination of the Borough.
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 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, non-owned, or rented vehicles in the
minimum amount of:
L.
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 Commonwealth, in the minimum amount of:
M.
No limitation on liability. None of the provisions of this chapter
or any insurance policy required herein, or any damages recovered
by the Borough hereunder, shall be construed to excuse the faithful
performance by or limit the liability of grantee under this chapter
or the franchise for damages either to the limits of such policies
or otherwise.
A.
Indemnification. 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 expenses
for reasonable legal fees and disbursements assumed by the Borough
in connection therewith but excluding claims, suits, actions, liabilities,
judgements or damages that are the direct result of negligence or
deliberate acts or omission of the Borough, 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 grantee, its subcontractors, agents or employees,
to which grantee's negligence shall in any way contribute, and
regardless of whether the Borough's negligence or the negligence
of any other party shall have contributed to such claim, cause of
action, judgment, injury, or damage.
(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 any other right of any person, firm or corporation,
but excluding claims arising out of or related to Borough or educational
access programming.
(3)
Arising out of Grantee's failure to comply with the provisions
of any federal, commonwealth, or local statute, ordinances or regulation
applicable to grantee in its business hereunder.
B.
The foregoing indemnity is conditioned upon the following: The Borough
shall give grantee reasonable notice of any claim or the commencement
of any action, suit or other proceeding covered by the provisions
of this section. Grantee will provide the defense of any claims brought
against the Borough under this section of the franchise by selecting
counsel of grantee's choice to defend the claim, subject to the
reasonable consent of the Borough; which will not unreasonably be
withheld. 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; provided,
however, that grantee shall have the right to defend, settle or compromise
any claim or action arising hereunder and grantee shall have the sole
authority to decide the appropriateness and the amount of any such
settlement. Recovery by the Borough of any sum by reason of the liquidated
damages required by the franchise shall be deducted from any recovery
which the Borough might have against the grantee arising out of the
same transaction under the terms of this section.
