(A) Indemnification.
(1) General indemnification. Grantee shall indemnify, defend and hold the city, its officers, officials, boards, commissions, agents and employees, harmless from any action or claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys' fees or reasonable expenses, arising from any casualty or accident to person or property, including without limitation copyright infringement, defamation, and all other damages in any way arising out of, or by reason of, any construction, excavation, operation, maintenance, reconstruction, or any other act done under this franchise, by or for grantee, its agents, or its employees, or by reason of any neglect or omission of grantee. Grantee shall consult and cooperate with the city while conducting its defense of the city. Grantee shall not be obligated to indemnify the city to the extent of the city's negligence or willful misconduct.
(2) Indemnification for relocation. Grantee shall indemnify the city for any damages, claims, additional costs or reasonable expenses assessed against or payable by the city arising out of or resulting from, directly or indirectly, grantee's failure to remove, adjust or relocate any of its facilities in the right-of-way in a timely manner in accordance with any relocation required by the city.
(3) Additional circumstances. Grantee shall also indemnify, defend and hold the city harmless for any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys’ fees or reasonable expenses in any way arising out of:
(a) The lawful actions of the city in granting this franchise to the extent such actions are consistent with this franchise and applicable law.
(b) Damages arising out of any failure by grantee to secure consents from the owners, authorized distributors, or licensees/licensors of programs to be delivered by the cable system, whether or not any act or omission complained of is authorized, allowed or prohibited by this franchise.
(4) Procedures and defense. If a claim or action arises, the city or any other indemnified party shall promptly tender the defense of the claim to grantee, which defense shall be at grantee's expense. The city may participate in the defense of a claim, but if grantee provides a defense at grantee's expense, then grantee shall not be liable for any attorneys' fees, expenses or other costs that city may incur if it chooses to participate in the defense of a claim, unless and until separate representation as described below in § 13-5-3-5(A)(6) is required. In that event the provisions of § 13-5-3-5(A)(6) shall govern grantee's responsibility for the city's attorney's fees, expenses or other costs. In any event, grantee may not agree to any settlement of claims affecting the city without the city's approval.
(5) Non-waiver. The fact that grantee carries out any activities under this franchise through independent contractors shall not constitute an avoidance of or defense to grantee's duty of defense and indemnification under this subsection.
(6) Expenses. If separate representation to fully protect the interests of both parties is or becomes necessary, such as a conflict of interest between the city and the counsel selected by grantee to represent the city, grantee shall pay, from the date such separate representation is required forward, all reasonable expenses incurred by the city in defending itself with regard to any action, suit or proceeding indemnified by grantee. Provided, however, that in the event that such separate representation is or becomes necessary, and the city desires to hire counsel or any other outside experts or consultants and desires grantee to pay those expenses, then the city shall be required to obtain grantee's consent to the engagement of such counsel, experts or consultants, such consent not to be unreasonably withheld. The city's expenses shall include all reasonable out-of-pocket expenses, such as consultants' fees, and shall also include the reasonable value of any services rendered by the City Attorney or his or her assistants or any employees of the city or its agents but shall not include outside attorneys' fees for services that are unnecessarily duplicative of services provided to the city by grantee.
(B) Insurance.
(1) Grantee shall maintain in full force and effect at its own cost and expense each of the following policies of insurance:
(a) Commercial general liability insurance with limits of no less than $1,000,000 per occurrence and $2,000,000 general aggregate. Coverage shall be at least as broad as that provided by ISO CG 00 01 1/96 or its equivalent and include severability of interests. Such insurance shall name the city, its officers, officials and employees as additional insureds per ISO CG 2026 or its equivalent. There shall be a waiver of subrogation and rights of recovery against the city, its officers, officials and employees. Coverage shall apply as to claims between insureds on the policy, if applicable.
(b) Commercial automobile liability insurance with minimum combined single limits of $1,000,000 each occurrence with respect to each of grantee's owned, hired and non-owned vehicles assigned to or used in the operation of the cable system in the city. The policy shall contain a severability of interest provision.
(2) The insurance shall not be canceled or materially changed so as to be out of compliance with these requirements without 30 days' written notice first provided to the city, via certified mail, and ten days' notice for nonpayment of premium. If the insurance is canceled or materially altered so as to be out of compliance with the requirements of this subsection within the term of this franchise, grantee shall provide a replacement policy. Grantee agrees to maintain continuous uninterrupted insurance coverage in at least the amounts required for the duration of this franchise and, in the case of the commercial general liability, for at least one year after expiration of this franchise.
(C) Deductibles and certificate of insurance.
(1) Any deductible of the policies shall not in any way limit grantee's liability to the city.
(2) Endorsements. All policies shall contain or shall be endorsed so that:
(a) The city, Its officers, officials, boards, commissions, employees and agents are to be covered as and have the rights of additional insureds with respect to liability arising out of activities performed by or on behalf of grantee under this franchise or applicable law, or in the construction, operation or repair, or ownership of the cable system;
(b) Grantee's insurance coverage shall be primary insurance with respect to the city, its officers, officials, boards, commissions, employees and agents. Any insurance or self-insurance maintained by the city, its officers, officials, boards, commissions, employees and agents shall be in excess of grantee's insurance and shall not contribute to it; and
(c) Grantee's insurance shall apply separately to each insured against whom a claim is made or lawsuit is brought, except with respect to the limits of the insurer's liability.
(3) Acceptability of insurers. The insurance obtained by grantee shall be placed with insurers with a Best's rating of no less than "A-" or better.
(4) Verification of coverage. Grantee shall furnish the city with certificates of insurance and endorsements or a copy of the page of the policy reflecting blanket additional insured status. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements for each insurance policy are to be on standard forms or such forms as are consistent with standard industry practices.
(5) Self-Insurance. In the alternative to providing a certificate of insurance to the city certifying insurance coverage as required above, grantee may provide self-insurance in the same amount and level of protection for grantee and the city, its officers, agents and employees as otherwise required under this section. The adequacy of self- insurance shall be subject to the periodic review and approval of the city, including the city's approval of an annual letter that certifies the coverage and the means through which the city can verify coverage.
(D) Letter of credit.
(1) If there is a claim by the city of an uncured breach by grantee of a material provision of this franchise or pattern of repeated violations of any provislon(s) of this franchise, then the city may require and grantee shall establish as security for the faithful performance by grantee of all of the provisions of this franchise, within 30 days from receiving notice from the city, a letter of credit from a financial institution satisfactory to the city in the amount of $100,000.
(2) In the event that grantee establishes a letter of credit pursuant to the procedures of § 13-5-3-5(D)(1), then the letter of credit shall be maintained at $100,000 until the allegations of the uncured breach have been resolved.
(3) After completion of the procedures set forth in § 13-5-3-13(A) or other applicable provisions of this franchise, the letter of credit may be drawn upon by the city for purposes including but not limited to the following:
(a) Failure of grantee to pay the city sums due under the terms of this franchise;
(b) Reimbursement of costs borne by the city to correct franchise violations not corrected by grantee;
(c) Monetary remedies or damages assessed against grantee due to default or breach of franchise requirements; and
(d) Failure to comply with the customer service standards of the city, as the same may be amended from time to time by the City Council acting by ordinance or resolution.
(4) The city shall give grantee written notice of any withdrawal under this subsection upon such withdrawal. Within seven days following receipt of such notice, grantee shall restore the letter of credit to the amount required under this franchise.
(5) Grantee shall have the right to appeal to the City Council for reimbursement in the event grantee believes that the letter of credit was drawn upon improperly. Grantee shall also have the right of judicial appeal if grantee believes the letter of credit has not been properly drawn upon in accordance with this franchise. Any funds the city erroneously or wrongfully withdraws from the letter of credit shall be returned to grantee with interest, from the date of withdrawal at a rate equal to the prime rate of interest as quoted in the Wall Street Journal.