(A) Indemnification.
(1) The licensee shall fully indemnify, defend, and hold harmless the town, its officers, boards, commissions, elected officials, agents, attorneys, representatives, servants, and employees against any and all costs, damages, expenses, claims, suits, actions, liabilities, and judgments for damages, including but not limited to, expenses for legal fees, whether suit be brought or not, and disbursements and liabilities incurred or assumed by town in connection with:
(a) Damage to persons or property, in any way arising out of or through the acts or omissions of licensee, its servants, officials, agents, attorneys, representatives, or employees;
(b) Requests for relief arising out of any licensee action or inaction that results in a claim for invasion of right of privacy, for defamation of any person, firm, or corporation; for the violation or infringement of any copyright, trademark, trade name, service mark, or patent; or of any other right of any person, firm, or corporation;
(c) Any and all claims arising out of the licensee’s failure to comply with the provisions of this chapter or a license or any federal, state, or local law, or regulation applicable to licensee or the cable system; or
(d) Any and all disputes arising out of a claim by any party other than town wherein damages or other relief is sought as a result of the town’s cable system licensing of licensee or as a result of the renewal or non-renewal of the licensee’s cable system license.
(2) If a lawsuit covered by the provisions of division (A)(1) above be brought against town, either independently or jointly with a licensee, or with any other person or municipality, the licensee, upon notice given by town, shall defend the town at the cost of the licensee. If final judgment is obtained against the town, either independently or jointly with licensee or any other defendants, the licensee shall indemnify the town and pay such judgment with all costs and attorneys’ fees and satisfy and discharge the same.
(3) The town shall cooperate with the licensee and reserves the right to participate in the defense of any litigation.
(4) The town is in no manner or means waiving any governmental immunity it may enjoy or any immunity for its agents, officials, servants, attorneys, representatives, and/or employees.
(5) A licensee shall make no settlement in any matter identified above without the town’s written consent, which shall not be unreasonably withheld. Failure to inform the town of settlement shall constitute a breach of the license and the town may seek any redress available to it against the licensee; whether set forth in this chapter or under any other municipal, state, or federal laws.
(6) All rights of town, pursuant to indemnification, insurance, letter of credit, or performance bond(s), as provided for by this chapter, are in addition to all other rights the town may have under this chapter or any other code, rule, regulation, or law.
(7) The town’s exercise of, or failure to exercise all rights pursuant to, any section of this chapter shall not affect in any way the right of the town subsequently to exercise any such rights or any other right of town under this code or any other code, rule, regulation, or law.
(8) It is the purpose of this section to provide maximum indemnification to the town under the terms and conditions expressed and, if there is a dispute, this section shall be construed (to the greatest extent permitted by law) to provide for the indemnification of the town by the licensee.
(9) The provisions of this section shall not be dependent or conditioned upon the validity of this chapter or the validity of any of the procedures or agreements involved in the award or renewal of a license, but shall be and remain a binding right and obligation of the town and a licensee even if part or all of this chapter, or the grant or renewal of a license, is declared null and void in a legal or administrative proceeding. It shall be expressly stated in a license that it is the intent of the licensee and town, upon the effective date of the license, that the provisions of this section survive any such declaration and shall be a binding obligation of and inure to the benefit of the licensee and town and their respective successors and assigns, if any.
(B) Comprehensive liability insurance.
(1) Upon acceptance of a license, the licensee shall file with the Town Manager/Clerk and shall thereafter during the entire term of such license maintain in full force and effect, at its own expense, a general comprehensive liability insurance policy or policies that shall insure licensee and provide primary coverage for the town, its officers, boards, commissions, agents, and employees, against liability for loss or liability for personal injury, death, property damage (both automobile and non-automobile caused), or other damages. Such policy or policies shall include insurance against damages from unfair competition, copyright infringement (common law or statutory), and a failure of licensee to secure consents, occasioned by any activity or operation of licensee under such license, and regardless of any claimed or actual activities of town, its officers, boards, commissions, agents, and employees.
(2) The Town Council, in any license granted, may waive the requirement for insurance from one or more perils mentioned in the last preceding sentence upon a finding that such insurance cannot be procured or cannot be procured at a reasonable cost, and in connection therewith may reduce the otherwise required limits on coverage hereafter set forth. Such policy or policies shall be issued by a company approved by the Town Manager and shall be in a form approved by the Town Attorney, with minimum combined single limits of liability coverage in the amount of $3,000,000. The policy or policies shall name the town, its officers, boards, commissions, agents, and employees as additional insured and contain a provision that a written notice of any cancellation, modification, or reduction in coverage of said policy shall be delivered to the Town Manager/Clerk 30 days in advance of the effective date thereof.
(3) No license granted under this chapter shall be effective unless and until each of the foregoing policies of insurance as required in this division (B) has been delivered to the Town Manager/Clerk. Any substitute policy or policies shall be subject to the same approvals and shall comply with all of the provisions of this division (B).
(4) The Town Council may require increases in the amount of types of coverage no more frequently than every three years, based on increases in the CPI, so as to ensure full protection of the town and the public. The licensee shall have six months from the date of notification from the Town Manager to comply with any increase.
(5) A licensee may self-insure the above-described policy overages if such licensee or its parent is of sufficient financial standing to reasonably provide such insurance. A licensee that elects to self-insure shall file with the town a certificate of insurance as specified by the town.
(Ord. 2003-07, passed 9-25-2003)