Montague Municipal Code Art. XIII Liability, Indemnification and Termination

Except to the extent of any negligence or any wilful acts or omissions on the pan of the city, its officers, officials and employees, and only to the extent of such negligence or comparative negligence, 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, judgements 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 the franchise. For example, if the city is found to be one percent comparatively negligent and the grantee ninety-nine percent comparatively negligent, the city shall be only responsible for one percent of the preceding list of liabilities and costs. These damages or penalties shall include operation or maintenance of the cable system. The city shall notify the grantee in writing within ten days after the presentation of any claim or demand, either by suit or otherwise, made against the city where it is reasonably apparent that such claim or demand relates to the grantee, the cable system or this chapter. Where any such claim or demand against the city is made by suit or other legal action, written notice thereof shall be given by the city to the grantee not less than fifteen days prior to the date upon which an answer to such legal action is due or within ten days after the claim or demand is made upon the city, whichever notice period yields the grantee the larger amount of time within which to prepare an answer. Failure by the city to notify the grantee properly in accordance with the foregoing of any such claim, suit or demand against the city shall release the grantee from its obligation to defend, indemnify and save the city harmless as provided in this section. (Ord. 93-03 §14 (part), 1993)

The grantee shall pay and by its acceptance of the franchise specifically agrees that it will pay all expenses incurred by the city in defending itself under Section 5.12.420. 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. 93-03 §14 (part), 1993)

The grantee shall maintain, and by its acceptance of the 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 reasonably acceptable to the city and in a form reasonably acceptable 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 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. The statutory requirements for workers compensation and employer's liability, with the provision that this is not intended to limit the coverage required by subsections (A) and (B) of this section. (Ord. 93-03 §14 (part), 1993)

The insurance policy mentioned in Section 5.12.440 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) day after receipt by the City Clerk of the City of Montague, City Hall, Montague, California, by registered mail, of a written notice of such proposed cancellation or reduction in coverage. (Ord. 93-03 §14 (part), 1993)

Except for events beyond the reasonable control of grantee or where prior approval has been obtained from the city, in the event that cable television service to any subscriber 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), the grantee shall rebate a percentage of the monthly fee to affected subscribers as follows:

• A. More than three hours and up to and including forty-eight consecutive hours: five percent rebate of the monthly fee;

• B. More than twenty-four hours and up to and including forty-eight consecutive hours: fifteen percent of the monthly fee:

C. More than forty-eight hours and up to and including seventy-two consecutive hours: twenty-five percent rebate of the monthly fee; and

D. More than seventy-two consecutive hours: one hundred percent rebate of the monthly fee. (Ord. 93-03 §14 (part), 1993)

In addition to all other rights and powers of the city, the city reserves the right, in accordance with the procedures outlined below, to terminate the franchise in the event that any franchisee:

• A. Violates any material provisions of this chapter;

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

C. Wilfully misrepresents any material fact in any reports required to be filed pursuant to this chapter. (Ord. 93-03 §14 (part), 1993)

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

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

B. If the violation continues for a period of sixty days following written notification from the city, the city may place a 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. If at such meeting, at which grantee shall be afforded due process and a right to be heard, the city determines that the grantee, by its acts or omissions, has given the city cause for termination of the franchise, the city may make a final 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, in the exercise of its reasonable discretion and after written notice to the grantee and a final opportunity to be heard, declare the franchise terminated and of no further force and effect. In the event that termination of the franchise is imposed upon the grantee, it shall be afforded a nine (9) month to a qualified purchaser at fair market value. During this period which shall run from the effective date of the final, nonappealable order or decision of a court of competent jurisdiction imposing termination, the grantee shall have the right to operate the system pursuant to the provisions of this chapter. (Ord. 93-03 § 14 (part), 1993)

Within thirty days of the effective date of the ordinance codified in this chapter, the grantee, at its expense, shall obtain, shall file with the city clerk, and, unless otherwise authorized by the council, shall maintain throughout the term hereof, a surety bond in the penal amount of twenty thousand dollars, in a form and with such company as shall be reasonably satisfactory to the city. (Ord. 93-03 §14 (part), 1993)