Ione Municipal Code Art. XII Liability, Indemnification and Termination

The grantee shall indemnify and save harmless and defend the city, its officers and employees from and against any and all injury, loss, damage, costs, expenses, claims, attorneys' fees, demands, actions, suits, judgments, or other proceedings, or liability, including but not limited to any liability for inverse condemnation or for failure to secure consents for programs delivered by the grantee's system, arising out of or in any way connected with the grant, exercise or enjoyment of grantee's franchise, and regardless of any negligence or other nonwilful acts or omissions on the part of the city, its officers, officials, and employees. These damages or penalties shall include, without limitation, damages arising out of copyright infringements and all other damages arising out of the installation, operation, or maintenance or the cable system, whether or not any act or omission complained of is authorized, allowed, or prohibited by the franchise.

(Ord. 320 §14.1, 1991)

The grantee shall pay and by its acceptance of a franchise specifically agrees that it will pay all expenses incurred by the city in defending itself under Section 5.04.450. These expenses shall include all out-of-pocket expenses, such as reasonable attorney fees, and shall also include the reasonable value of any services rendered by the city attorney or his assistants or any employees of the city.

(Ord. 320 §14.2, 1991)

The grantee shall maintain, and by its acceptance of a franchise specifically agrees that it currently possesses and will maintain throughout the term of the franchise a general comprehensive liability insurance policy in protection of the city, its officers, boards, commissions, agents and employees, in a company approved by the city and in a form satisfactory to the city naming the city, its officers, boards, commissions, agents, and employees as additional insureds and protecting the city and all persons against liability for loss or damage for personal injury, death or property damage, occasioned by the operations of the grantee under this franchise, in the amounts of: (a) one million dollars for bodily injury or death to any one person, within the limit, however, of one million dollars for bodily injury or death resulting from any one accident; (b) one million dollars for property damage resulting from any one occurrence; and (c) one million dollars for workers compensation and employer's liability.

(Ord. 320 §14.3, 1991)

The insurance policy mentioned in Section 5.04.470 shall contain an endorsement stating that the policy is extended to cover the liability assumed by the grantee under the terms of the franchise, and shall contain an endorsement as follows:

It is hereby understood and agreed that this policy may not be canceled nor the amount of any coverage thereof reduced until sixty (60) days after receipt by the City Clerk of the City of Ione, City Hall, Ione, California, by registered mail, of a written notice of such proposed cancellation or reduction in coverage.

Additionally, grantee agrees to comply with all insurance requirements imposed by the city.

(Ord. 320 §14.4, 1991)

A. No later than the effective date of any franchise granted hereunder, the grantee shall establish and maintain, throughout the term of the franchise with the city, the sum of ten thousand dollars as security for the faithful performance by the grantee of specified provisions of the franchise agreement, and compliance with all orders, permits and directions of any agency of the city having jurisdiction over the acts of the grantee. Said amount is not a cash deposit, but shall be a surety in a form acceptable to city. If there are no claims brought within three years of the effective date of any franchise granted hereunder, then the surety requirement shall be terminated. The surety requirement can be reinstated on demand of city at any time for cause and for three years for each successor in interest of a grantee hereunder. Said security account may be assessed by the city for the following purposes:

1. Payment of franchise fees which the grantee has failed to pay to the city of any franchise hereunder;

2. Reimbursement of proper costs borne by the city to correct franchise violations not corrected by the grantee after written notice, and after a reasonable amount of time not specified, to correct such violations;

3. Payment of liquidated damages assessed against the grantee due to default or violation of the franchise requirements;

4. Compensation and costs of completing or repairing the system as provided in the franchise agreement;

5. Compensation and costs of removal of any abandoned property;

6. Repair of damage to streets caused by grantee or any officer, agent, employee, contractor or subcontractor retained by grantee;

7. Other public or private improvements made necessary as a result of the failure of grantee to comply with any provisions of any franchise agreement granted hereunder.

B. Within fifteen calendar days after notice is mailed to the grantee that any amount has been withdrawn by the city from the security account pursuant to this section, the grantee shall deposit in the security account such sum as may be necessary to restore the account to its required amount, including any interest which may have accrued and been credited to the account.

(Ord. 320 §14.5, 1991)

The security account passbook, check, and a certificate of insurance evidencing the insurance policy mentioned in Section 5.04.490 and written evidence of payment of required premiums, shall be filed and maintained with the city clerk during the term of the franchise.

(Ord. 320 §14.6, 1991)

Neither the provisions of this chapter, nor any bond accepted by the city pursuant hereto, nor any damages recovered by the city thereunder, shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under any franchise agreement hereunder or for damages, either to the full amount of the security account or otherwise.

(Ord. 320 §14.7, 1991)

Subject to the provisions of this chapter and any franchise agreement granted hereunder, the city shall be empowered to impose the following sanctions:

A. The termination of a franchise in whole or in part as provided in Sections 5.04.550 and 5.04.560.

B. For failure by the grantee to complete the system, build or rebuild expanding channel capacity to the required capacity by the date set forth in the franchise agreement, the grantee shall pay three hundred fifty dollars per day for each day, or part thereof, the deficiency continues.

C. For failure by the grantee to provide extension of service in accordance with the franchise agreement unless the city specifically approves a delay due to the occurrence of conditions beyond grantee's control, franchisee shall pay two hundred fifty dollars per day for each day, or part thereof, the deficiency continues.

D. For failure by the grantee to provide data, documents, reports, information as required by this franchise, grantee shall pay fifty dollars per day for each day, or part thereof, the violation occurs or continues.

E. For failure by the grantee to comply with quality of service or operation or technical standards following the city's written notice directing grantee to make improvements, franchisee shall pay five hundred dollars per day for each day, or part thereof, the violations continue. F. For failure by grantee to test, analyze, and report on the performance of the system following a request by the city pursuant to the franchise, franchisee shall pay two hundred dollars per day for each day, or part thereof, that such noncompliance continues.

G. For any other material violation of this chapter, grantee shall pay two hundred dollars per day for each day, or part thereof, the violations continue.

(Ord. 320 §14.8, 1991)

Except as may be otherwise provided in any franchise agreement except for acts beyond the reasonable control of grantee or where prior approval has been obtained from the city, in the event that service to any subscriber or user is interrupted (and provided a claim therefor shall have been made to grantee's local office within thirty days of a subscriber's receipt of a service bill), a grantee shall credit a percentage of the monthly fee to affected subscribers or users as follows:

A. Twenty-four consecutive hours: no credit of the monthly fee;

B. Twenty-four to forty-eight consecutive hours: ten percent credit of the monthly fee;

C. Forty-eight hours or longer: prorated from the first day.

(Ord. 320 §14.9, 1991)

The city shall be empowered, but will not be obligated, to determine whether the subscriber is entitled to a rebate. If the city determines that a subscriber is entitled to a rebate, it shall notify the grantee in writing (by delivery to grantee's local office or by regular mail, neither certified nor registered) of the name of the subscriber, the amount of the rebate and his reason therefor. A copy thereof shall be sent to the subscriber.

(Ord. 320 §14.10, 1991)

In addition to all other rights and powers of the city, the city reserves the right to terminate any franchise granted hereunder and all rights and privileges of a franchisee hereunder in the event that any franchisee:

A. Violates any material provision of this chapter or any rule, order, or determination of the city made pursuant thereto; provided, however, a sanction for such violation has been fully imposed on at least one occasion within one year of final determination of the sanction and provided, further, that the city has found that said violation is material to this chapter or the franchise agreement awarded pursuant to this chapter; or

B. Becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt or is subjected to the appointment of a receiver; or

C. Attempts to dispose of a substantial portion of its facilities or property of its cable business in violation of the provisions of this chapter; or

D. Fails to begin or complete system construction or extension as provided in this chapter or a franchise granted thereunder; or

E. Misrepresents any material fact in the fran- chisee's proposal or wilfully misrepresents any material fact in any reports required to be filed pursuant to this chapter.

(Ord. 320 §14.11, 1991)

No such termination shall take place unless and until the following procedures have been followed:

A. The city shall provide grantee with written notice of said violation by certified mail. Said notice shall specify the basis for city's determination and shall specify the immediate action required of grantee to correct said material violation.

B. If the violation continues for a period of forty-five days following written notification from the city, the city may place request for termination of the franchise on a regularly scheduled city council meeting agenda. The city shall cause to be served upon the grantee by certified mail at least fourteen days prior to the day of such city council meeting, a written notice of the intent to request such a termination and the time and place of the meeting.

C. After providing franchisee with notice and opportunity to be heard and in the event city determines that grantee, by its acts or omissions, has given the city cause for termination of the franchise, the city may make written demand upon grantee for full compliance. If the material violation is not cured to the reasonable satisfaction of the city within thirty days or such additional time as the city may allow, the city may, after written notice to grantee and final opportunity to the be heard (in the exercise of its reasonable discretion), declare the franchise terminated and of no further force or effect.

(Ord. 320 §14.12, 1991)

In the event that the city required the grantee to dismantle the system, grantee shall, in an expeditious manner, at its own expense and at the direction of the city, restore any property, public or private, to the condition in which it existed prior to the erection or construction of the system, including any improvements made to such property subsequent to the construction of the system.

(Ord. 320 §14.13, 1991)