(A) Indemnification. No franchise or other authorization to use the public rights-of-way issued to a communications facility operator shall be valid or effective until and unless the city obtains adequate indemnity from the operator. The indemnity must at least:
(1) Release the city from and against any and all liability and responsibility in or arising out of the construction, operation or maintenance of the communications facility. Each communications facility operator must further agree not to sue or seek any money or damages from the city in connection with the above mentioned matters;
(2) Indemnify and hold harmless the city, its trustees, elected and appointed officers, agents and employees, from and against any and all claims, demands or causes of action of whatsoever kind or nature, and the resulting losses, costs, expenses, reasonable attorneys’ fees, liabilities, damages, orders, judgments or decrees, sustained by the city or any third party arising out of, or by reason of, or resulting from or of the acts, errors or omissions of the communications facility operator, or its agents, independent contractors or employees related to or in any way arising out of the construction, operation or repair of the facility; and
(3) Provide that the covenants and representations relating to the indemnification provision shall survive the term of any franchise or other authorization and continue in full force and effect as to the party’s responsibility to indemnify.
(B) Insurance. No franchise or other authorization to use the public rights-of-way issued to a communications facility operator shall be valid or effective until and unless the city obtains assurance that the operator (and those acting on its behalf) have adequate insurance. At a minimum, the following requirements must be satisfied:
(1) A communications facility operator shall not commence construction or operation of the facility without obtaining all insurance required under this division and approval of the insurance by the CAO of the city, nor shall a communications facility operator allow any contractor or subcontractor to commence work on its contract or subcontract until all similar such insurance required of the same has been obtained and approved. The required insurance must be obtained and maintained for the entire period the communications facility operator has facilities in the public rights-of-way, and for a period thereafter as specified in the minimum coverages described below. If the operator, its contractors or subcontractors do not have the required insurance, the city may order such entities to stop operations until the insurance is obtained and approved.
(2) Certificates of insurance, reflecting evidence of the required insurance, shall be filed with the CAO. For entities that are entering the market, the certificates shall be filed prior to the commencement of construction and once a year thereafter, and as provided below in the event of a lapse in coverage. For entities that have facilities in the public rights-of-way as of the effective date of this chapter, the certificate shall be filed within 60 days of the date of this chapter, annually thereafter, and as provided below in the event of a lapse in coverage, unless a pre-existing franchise or license provides for filing of certificates in a different manner.
(3) These certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least 30-days’ prior written notice has been given to the city. Policies shall be issued by companies authorized to do business under the laws of the State of Kentucky. Financial ratings must be no less than “A” in the latest edition of Best’s Key Rating Guide, published by A.M. Best Guide.
(4) In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the term of a franchise or other authorization, then in that event, the communications facility operator shall furnish, at least 30 days prior to the expiration of the date of the insurance, a renewed certificate of insurance as proof that equal and like coverage will be in force for the balance of the period of the franchise or license under which the communications facility operates. Copies of policies will be provided upon request.
(5) A communications facility owner or operator, and its contractors or subcontractors engaged in work on the operator’s behalf in, on, under or over public rights-of-way, shall maintain the following minimum insurance:
(a) Comprehensive general liability insurance to cover liability for bodily injury and property damage. Exposures to be covered are: premises, operations, products/completed operations and certain contracts. Coverage must be written on an occurrence basis, with the following limits of liability:
1. Bodily injury.
a. Each occurrence: $1,000,000.
b. Annual aggregate: $3,000,000.
2. Property damage.
a. Each occurrence: $1,000,000.
b. Annual aggregate: $3,000,000.
3. Personal injury.
a. Each occurrence: (To be determined by city).
b. Annual aggregate: $3,000,000.
4. Maintenance. Completed operations and products liability shall be maintained for two years after the termination of the franchise or license (in the case of the communications facility owner or operator) or completion of the work for the communications facility owner or operator (in the case of a contractor or subcontractor).
5. Liability. Property damage liability insurance shall include coverage for the following hazards:
a. X - Explosion;
b. C - Collapse; and
c. U - Underground.
(b) Workers’ Compensation Insurance shall be maintained to comply with statutory limits for all employees, and in the case any work is sublet, each communications facility operator shall require the subcontractors similarly to provide workers’ compensation insurance for all the latter’s employees unless the employees are covered by the protection afforded by each communications facility operator. Each communications facility operator and its contractors and subcontractors shall maintain during the life of this policy employer’s liability insurance. The following limits must be maintained:
1. Workers’ compensation: statutory.
2. Employer’s liability: $500,000 per occurrence.
(c) Comprehensive auto liability.
1. Bodily injury.
a. Each occurrence: $1,000,000.
b. Annual aggregate: $3,000,000.
2. Property damage.
a. Each occurrence: $1,000,000.
b. Annual aggregate: $3,000,000.
(d) Coverage shall include owned, hired and non-owned vehicles.
(6) All insurance policies, excluding the Workers’ Compensation insurance policy, shall name the city, its officers, trustees, elected and appointed officials, boards, commissions, commissioners, agents and employees as additional insureds.
(7) Each communications facility operator shall hold the city, its agents and employees, harmless on account of claims for damages to persons, property or premises arising out of its construction, operation or repair of its communications facility.
(8) In every franchise or license agreement, the city shall reserve the right to require any other insurance coverage it reasonably deems necessary depending upon the exposures.
(C) Surety instruments. Every communications facility operator shall establish a cash security fund, or provide the city with an irrevocable letter of credit in the same amount, to secure the payment of fees owed, to secure any other performance promised in a franchise or license and to pay any taxes, fees or liens owed to the city. The fund or letter of credit shall be in the initial amount of $50,000, unless a franchise agreement or license provides otherwise. The letter of credit shall be in a form and with an institution acceptable to the City Attorney. Should the city draw upon the cash security fund or letter of credit, it shall promptly notify the communications facility operator, and the communications facility operator shall promptly restore the fund or the letter of credit to the full required amount. This security fund/letter of credit may be waived or reduced by the CAO for a franchisee or licensee where the CAO determines in its discretion that a particular franchisee’s or licensee’s operations are sufficiently limited that a security fund/letter of credit is not necessary to secure the required performance.
(Ord. 26-97, passed 9-23-1997)