(a) Indemnification of the County.
(1) The grantee shall, at its sole cost and expense, indemnify and hold harmless the County and its officials, boards, commissions, agents and employees against any and all claims, suits, causes of action, proceedings and judgments for damage arising out of the operation of the cable television system under a franchise. These damages include, but are not limited to, penalties arising out of copyright infringements and antitrust violations and damages arising out of the failure by the grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the grantee's cable television system, whether or not any act or omission complained of is authorized, allowed or prohibited by the franchise and/or arising out of the grantee improperly crossing private property. Indemnified expenses include, but are not limited to, all out-of-pocket expenses, such as attorney fees, and the reasonable value of any services rendered by the County Attorney or his or her assistants or any employee of the County.
(2) The indemnity set forth in this section is conditioned upon the County's giving the grantee prompt notice of the commencement or making of any suit or action covered by this section. Nothing in this section shall be deemed to prevent the County from cooperating with the grantee and participating in the defense of any litigation by its own counsel at its sole cost and expense. No recovery by the County of any sum, by reason of the bond required in subsection (g) hereof, shall be a limitation upon the liability of the grantee to the County under this chapter, except that sums so received by the County shall be deducted from any recovery which the County establishes against the grantee under this chapter.
(b) Reimbursement of Costs. A grantee shall pay all expenses incurred by the County defending itself with regard to all damages and penalties mentioned in subsection (a) hereof.
(c) Public Liability Insurance. A grantee shall maintain throughout the term of the franchise or any renewal or extension thereof, a general comprehensive liability insurance policy with a company authorized to do business in the Commonwealth of Virginia, naming as the additional insured the County, its officers, boards, commissions, agents and employees, in a form satisfactory to the County Attorney, protecting the County and all persons from any and all claims by any person whatsoever against liability for loss or damage for personal injury, or death occasioned by the operations of the grantee under any franchise granted by this chapter, with a minimum liability of (i) one million dollars ($1,000,000) for personal injury or death of any one person, and two million dollars ($2,000,000) for personal injury or death of any two or more persons in any one occurrence, (ii) property damage insurance indemnifying, defending and saving harmless the County and its boards, commissions, agents and employees from and against all claims by any person whatsoever for property damage occasioned by the operations of the grantee under the franchise granted under this chapter, or alleged to have been so caused or occurred, with a minimum liability of one million dollars ($1,000,000) for property damage to the property of any one person and two million dollars ($2,000,000) for the property damage to the property of two or more persons in any one occurrence and, (iii) copyright infringement insurance indemnifying, defending and saving harmless the County and its officers, boards, commissions, agents and employees from and against all claims of any person whatsoever for copyright infringement occasioned by the operations of the grantee under the franchise granted under this chapter, or alleged to have been so caused or occurred, with a minimum of one million dollars ($1,000,000) for the infringement of such copyright.
(d) Notice of Cancellation or Reduction of Coverage. The insurance policies mentioned above shall state that the policies are extended to cover the liability assumed by the grantee under the terms of any franchise agreement and shall contain the following endorsement:
“It is hereby understood and agreed that this policy may not be canceled nor the amount of coverage thereof reduced until thirty days after receipt by the County by registered mail of written notice of such intent to cancel or reduce the coverage.”
(e) Evidence of Insurance Filed With the County. All policies of insurance or certified copies thereof and written evidence of payment of required premiums, shall be filed and maintained with the County during the term of this franchise or any renewal thereof.
(f) No Waiver of Insurance, Performance Bond or Letter of Credit. Recovery by the County of any amounts under insurance, the performance bond (Section 805.06(g)) or letter of credit (Section 805.14) or otherwise does not limit a grantee's duty to indemnify the County in any way, nor shall such recovery relieve a grantee of its obligations under a franchise, limit the amounts owed to the County, or in any respect prevent the County from exercising any other right or remedy it may have.
(g) Performance Bond.
(1) Unless otherwise provided in a franchise agreement, prior to any cable system construction, upgrade, or other work in the public rights-of-way, a grantee shall establish in the County's favor a performance bond in a form satisfactory to the County Attorney, and in an amount specified in a franchise agreement, or other authorization, as necessary to ensure the grantee's faithful performance of the construction, upgrade or other work.
(2) In the event a grantee subject to such a performance bond fails to complete the cable system construction, upgrade, or other work in the public rights-of-way in a safe, timely, and competent manner in accordance with the provisions of a franchise agreement, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the County as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee, or the cost of completing or repairing the cable system construction, upgrade, or other work in the public rights-of-way, plus a reasonable allowance for attorney's fees, up to the full amount of the bond. The County may also recover against the bond any amount recoverable against the letter of credit where such amount exceeds that available under the letter of credit.
(3) Upon completion of the cable system construction, upgrade, or other work in the public rights-of-way and payment of all construction obligations of the cable system to the satisfaction of the County, the County may eliminate the bond or reduce its amount after a time appropriate to determine whether the work performed was satisfactory, which time shall be established considering the nature of the work performed. The County may subsequently require a new bond or an increase in the bond amount for any subsequent construction, upgrade, or other work in the public rights-of-way.
(4) The performance bond shall be issued by a surety with an A-1 or better rating of insurance in Best's Key Rating Guide, Property/Casualty Edition, and shall be subject to the approval of the County.
(5) The performance bond shall contain the following endorsement: “It is hereby understood and agreed that this bond may not be canceled by the surety nor the intention not to renew be stated by the surety until sixty days after receipt by the County, by registered mail, of written notice of such intent to cancel or not to renew.”
(Ord. 98-05. Passed 4-15-98.)