§ 114.11  INSURANCE, PENALTIES AND ENFORCEMENT.
   (A)   Remedies for breach and contravention of franchise. A breach by the franchisee of the franchise agreement, in addition to constituting a breach of contract, shall constitute a violation of this chapter. The cost of any litigation incurred by the town to enforce this chapter or the franchise granted pursuant hereto, or the franchise agreement or in relation thereto, or in relation to the cancellation or termination of a franchise, shall be reimbursed to the town by the franchisee. The costs shall include filing fees, costs of depositions, discovery and expert witnesses, all other expenses of suit and a reasonable attorney’s fee. Violation of material provisions of this chapter shall subject the franchisee to the following penalties:
      (1)   Failure of the franchisee to meet performance standards, as determined by the Mayor, to which it has agreed, may result in a rebate of rates or charges to subscribers affected; provided that, the Mayor shall provide ten days written notice of the failure to the franchisee. Any rebate may be charged to the performance bond;
      (2)   For failure to provide data and reports as requested by the Mayor or the Board of Commissioners and as required by this chapter, the penalty shall be $50 per day for each day not delivered. This penalty may be chargeable to the performance bond;
      (3)   For failure to complete construction and installation of the cable system, unless the Board of Commissioners approves the delay because of reasons beyond the control of the franchisee, the franchise term may be reduced one year for each three months’ delay. The Mayor shall notify the franchisee during the first month of the three-month period that the system has failed to meet performance standards;
      (4)   For any other material violation of the ordinance in such amounts per day as the Board may reasonably determine; and
      (5)   The franchisee may appeal any penalty which it considers unreasonable to the Board of Commissioners and then into the state judicial system as permitted by state law.
   (B)   Liability and indemnification of the town. The franchisee shall indemnify and hold harmless the town at all times during the term of the franchise granted hereby and specifically agrees that it will pay all damages and penalties which the town may legally be required to pay as a result of granting the franchise. Such damages and penalties shall include, but not be limited to, damages arising out of copyright infringements, and other damages arising out of the installation, operation or maintenance of the CATV system authorized herein, whether or not any act or omission complained of is authorized, allowed or prohibited by the franchisee. In case suit shall be filed against the town either independently or jointly with the franchisee to recover for any claim or damages, the franchisee, upon notice of it by the town, shall defend the town against the action and, in the event of a final judgment being obtained against the town, either independently or jointly with the franchisee solely by reason of the acts of the franchisee, the franchisee will pay the judgment and all costs and hold the town harmless therefrom.
   (C)   Insurance.
      (1)   The franchisee shall be required to maintain insurance in such forms and in such companies as shall be approved by the town with the town named as the co-insured, such approval not to be unreasonably withheld, to protect the town and the franchisee from and against any and all claims, injury or damage to persons or property, both real and personal, caused by the construction, erection, operation or maintenance of any aspect of the system. The amount of such insurance shall not be less than the following:
         (a)   General liability insurance:
            1.   Bodily injury per person, $500,000;
            2.   Bodily injury per occurrence, $1,000,000; and
            3.   Property damage per occurrence, $500,000.
         (b)   Automobile insurance:
            1.   Bodily injury per person, $100,000;
            2.   Bodily injury per occurrence, $300,000; and
            3.   Property damage per occurrence, $300,000.
      (2)   The town may require the foregoing insurance coverage to be changed from time to time during the term of the franchise.
      (3)   Workers’ compensation insurance shall also be provided as required by the laws of the state, as amended.
      (4)   All insurance coverage shall provide a 30-day notice to the Mayor, c/o of the Town Clerk-Treasurer, in the event of material alteration or cancellation of any coverage afforded in the policies prior to the date the material alteration or cancellation shall become effective.
      (5)   A certificate of coverage for all policies required in this section shall be furnished to and filed with the Mayor at Town Clerk-Treasurer’s office, prior to the commencement of operations or expiration of prior policies, as the case may be.
   (D)   Non-waiver. Neither the provisions of this section, nor any bonds accepted by the town pursuant hereto, nor any damage recovered by the town hereunder, shall be construed to excuse unfaithful performance by the franchisee or limit the liability of the franchisee under this chapter or the franchise for damages, either to the full amount of the bond, or otherwise.
   (E)   Faithful performance bond. The franchisee shall, concurrently with its acceptance of this franchise, file with the Mayor at Town Clerk-Treasurer’s office and at all times thereafter maintain in full force and effect for the term of this franchise or any renewal thereof, at the franchisee’s sole expense, a corporate surety bond with a responsible company licensed to do business in the state and approved by the town, in the amount of 5% of the anticipated cost of construction of the proposed CATV system for the town, renewable annually, and conditioned upon the faithful performance of the franchisee, and in accordance with the provisions of this chapter and upon the further condition that in the event the franchisee shall fail to comply with any one or more of the provisions of the franchise, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the town as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment or any property of the franchisee as prescribed hereby, plus a reasonable allowance for attorneys’ fees and costs, up to the full amount of the bond, the condition to be a continuing obligation for the duration of the franchise and any renewal thereof and thereafter until the franchisee has liquidated all of its obligations with the town that may have arisen from the acceptance of this franchise or renewal by the franchisee or from its exercise of any privileges or rights herein granted. The bond shall provide that at least 30 days prior written notice of intention not to renew, cancellation, or material change be given to the town by filing same with the Mayor at Town Clerk-Treasurer’s office. The required performance bond shall be reduced to $2,000 once the franchisee has connected sufficient energized cable to serve the areas required to be served by § 114.08(B) of this chapter. Failure to keep a performance bond in force at all times as herein provided shall constitute an event of default.
   (F)   Deposit in lieu of bond. In lieu of the performance bond by a surety company as provided in this chapter, the franchisee may file and deposit with the town a performance bond without a corporate surety but secured by a certificate of deposit in some bank or savings and loan association in the state, in the sum of the performance bond required by § 114.11(E) of this chapter conditioned in the same manner as the performance bond of a surety company hereinbefore described. The income from such deposit shall be payable to the franchisee. As an alternative, the franchisee may provide such other security as may be approved by the Board of Commissioners, but absent such approval it shall provide a bond or deposit in lieu thereof as above provided.
(Prior Code, § 114.11)  (Ord. passed 11-12-1981)