(a) Performance Bond and Letter of Credit.
(1) Performance bond. Upon the effective date of the Permit, the Provider shall obtain and maintain during the entire term of the Permit and any extensions and renewals thereof, at its cost and expense, and file with the City, a corporate surety bond in an amount specified in the Permit to guarantee the faithful performance of the Provider of all its obligations provided under this chapter and the Permit.Failure to timely obtain, file and maintain said bond shall constitute a substantialviolation within the meaning of this Section.
(2) Conditions. The performance bond shall provide the following conditions:
A. There shall be recoverable by the City jointly and severally from the principal and surety, any and all fines and liquidated damages due to the City and any and all damages, losses, costs, and expenses suffered or incurred by the City resulting from the failure of the Provider to faithfully comply with the provisions of this chapter and the Permit; comply with all lawful orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; pay fees due to the City; pay any claims, liens or taxes due the City 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.
B. The total amount of the bond shall be forfeited in favor of the City in the event:
1. The Provider abandons its Cable System or Competitive Video System at any time during the term of the Permit or any extension thereto; or
2. The Provider assigns the Permit without the express written consent of the City.
(3) Reduction of bond. Upon written application by the Provider, the City 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 Provider shall be without prejudice to the Provider's subsequent applications or to the City's right to require the full bond at any time thereafter. However, no application shall be made by the Provider within one year of any prior application.
(4) Letter of credit. In addition to the performance bond required by this Section, the Provider shall obtain, maintain and file with the City, if required in the Permit, an irrevocable letter of credit from a financial institution licensed to do business in the State in an amount specified in the Permit, naming the City as beneficiary. The form and contents of such letter of credit shall be approved by the City and shall be released only upon expiration of the Permit or upon the replacement of the letter of credit by a successor Provider. Failure to obtain the letter of credit within the time specified herein shall constitute a substantial violation within the meaning of this Section.
(5) Conditions. The City may draw upon the letter of credit if the Provider fails to: faithfully comply with the provisions of this chapter and the Permit; comply with all orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; pay fees due to the City; or pay any claims, liens or taxes due the City which arise by reason of the construction, operation, maintenance or repair of its Cable System or Competitive Video System.
(6) Use of performance bond and/or letter of credit. Prior to drawing upon the letter of credit and/or the performance bond for the purposes described in this Section, the City shall notify the Provider in writing that payment is due and the Provider shall have thirty days from the receipt of such written notice to make a full and complete payment. If the Provider does not make the payment within thirty days, the City may withdraw the amount thereof with interest and penalties, from the letter of credit or the performance bond.
(7) Notification.Within three days of a withdrawal from the letter of credit or performance bond, the City shall send to the Provider, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal.
(8) Replenishment of letter of credit and/or performance bond. No later than thirty days after mailing to the Provider by certified mail notification of a withdrawal pursuant to subsection (a)(6) hereof, the Provider shall replenish the letter of credit and/or performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the letter of credit and/or performance bond shall constitute a substantial violation of this chapter.
(9) Non-renewal, alteration or cancellation of letter of credit and/or performance bond. The performance bond and/or letter of credit required herein shall be in a form reasonably satisfactory to the City and shall require thirty days written notice of any non-renewal, alteration or cancellation to both the City and the Provider. The Provider shall, in the event of any such cancellation notice, obtain, pay all premiums for, and file with the City, written evidence of the issuance of replacement bond or policies within thirty days following receipt by the City or the Provider of any notice of cancellation.
(10) Proof of bonds and insurance.Provider shall submit to the City the required performance bond, or a certified copy thereof, and written evidence of payment of required premium, and certificates of insurance required by this chapter, or certified copies thereof, and written notice of payment of required premium.
(b) Liability and Insurance.
(1) Prior to commencement of construction, but in no event later than sixty days after the effective date of the Permit and thereafter continuously throughout the duration of the Permit and any extensions or renewals thereof, the Provider shall furnish to the City, certificates of insurance, approved by the City, for all types of insurance required under this section. The City shall not unreasonably withhold its approval. Failure to furnish said certificates of insurance in a timely manner shall constitute a violation of this chapter.
(2) For any insurance policy obtained by the Provider in compliance with this section, a certificate of insurance shall be filed and maintained with the Clerk of Council during the term of the Permit and may be changed from time to time by mutual agreement between the City and a Provider to reflect changing liability limits and/or to compensate for inflation. Provider shall immediately advise the City of any litigation that may develop that would affect this insurance.
(3) Neither the provisions of this section or any damages recovered by the City hereunder, shall be construed to or limit the liability of the Provider under any Permit issued hereunder or for damages.
(4) All insurance policies maintained pursuant to this chapter or the Permit shall contain the following or a comparable endorsement:
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 thirty (30) days after receipt by the City Manager, by registered mail of a written notice of such intention to cancel or not to renew.
(5) All contractual liability insurance policies maintained pursuant to this chapter or the Permit shall, when taken as a whole, include provisions similar to the following hold harmless clause:
The Provider agrees to indemnify, save harmless and defend the City, 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 Permit and performed or caused to be performed. The foregoing indemnity shall apply except if such injury, death or damage is caused directly by the negligence or other fault of the City, its agents, servants, or employees or any other person indemnified hereunder.
(6) All insurance policies provided under the provisions of this chapter or the Permit shall be written by companies authorized to do business in the State.
(7) At any time during the term of the Permit, the City may request and the Provider shall comply with such request, to name the City as an additional named insured for all insurance policies written under the provisions of this chapter or the Permit.
(8) General Liability Insurance. The Provider shall maintain, and by its acceptance of any Permit granted hereunder specifically agrees that it will maintain throughout the term of the Permit, general liability insurance insuring the Provider in the minimum of:
A. $2,000,000 per occurrence;
B. $2,000,000 annual aggregate;
(9) Such general liability insurance must be written on a commercial coverage form, including the following: premises/operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury.
(10) Automobile Liability Insurance.The Provider shall maintain, and by its acceptance of any Permit granted hereunder specifically agrees that it will maintain throughout the term of the Permit, automobile liability insurance for owned, non-owned, or rented vehicles in the minimum amount of:
A. $1,000,000 per occurrence; and
B. $1,000,000 excess automobile liability per occurrence.
(11) Worker's Compensation and Employer's Liability Insurance. The Provider shall maintain and by its acceptance of any Permit granted hereunder, specifically agrees that it will maintain throughout the term of the Permit, Worker’s Compensation and employer's liability, valid in the State of Ohio, in the minimum amount of:
A. Statutory limit for Worker's Compensation;
B. $1,000,000 for employer's liability per occurrence; and
C. $1,000,000 excess employer liability.
(c) Indemnification.
(1) To the fullest extent permitted by law, Provider shall, at its sole cost and expense, fully indemnify, defend and hold harmless the City, 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 City or others), causes of action, actions, liability, and judgments for injury or damages (including but not limited to expenses for reasonable legal fees and disbursements assumed by the City in connection therewith):
A. To persons or property, in any way arising out of or through the act or omissions of Provider, its subcontractors, agents or employees, to which Provider's negligence shall in any way contribute, and regardless of whether the City's negligence or the negligence of any other party shall have contributed to such claim, cause of action judgment, injury, or damage.
B. 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 public, educational or government access programming.
C. Arising out of Provider's failure to comply with the provisions of any Federal, State, or Local statute, ordinances or regulation applicable to Provider in its business hereunder.
(2) The foregoing indemnity is conditioned upon the City:
A. Giving Provider prompt written notice of any claim or the commencement of any action, suit or proceeding for which indemnification is sought;
B. Affording the Provider the opportunity to participate in and fully control any compromise, settlement, or other resolution or disposition of any claim or proceeding subject to indemnification and
C. Fully cooperating in the defense of such claim and making available to the Provider all pertinent information under the City's control.
(3) The City shall have the right to employ separate counsel in any such action or proceeding and to participate in the investigation and defense thereof, and the Provider shall pay the reasonable fees and expense of such separate counsel if employed with the approval and consent of the Provider or if representation of both Provider and the City by the same attorney would be inconsistent with accepted canons of professional ethics.
(Ord. 2007-13. Passed 6-18-07.)