(a) Liability Insurance.
(1) Each Operator shall maintain, throughout the Franchise Term, commercial general and umbrella liability insurance with a company licensed to do business in the State of Ohio with a rating by Best of not less than “A,” insuring the Operator and the Village (wherein the Village is named as additional insured) with regard to all damages mentioned in paragraph (1) of subsection (a) above, in the minimum amounts of:
A. One Million Dollars ($1,000,000) for bodily injury or death to any one (1) Person;
B. Three Million Dollars ($3,000,000) for bodily injury or death resulting from any one (1) accident or occurrence;
C. One Million Dollars ($1,000,000) for all other types of liability.
D. Ten Million Dollars ($10,000,000) excess liability or umbrella coverage.
(2) The amounts shown in paragraph (a)(1) above shall be reviewed annually and an increase in the coverage amounts may be required by the Village to account for inflation or change in conditions or circumstances that might reasonably require an increase in coverage amounts.
(3) During the Franchise Term and any renewal or extension thereof, each Operator shall maintain in force Workers’ Compensation Insurance, covering its obligations under the Workers’ Compensation statute or similar Ohio law, and shall show to the reasonable satisfaction of the Village that such insurance is in effect at all times.
(4) The insurance required by subsection (a)(1) above shall be on an “Occurrence Coverage Basis” so that if an Operator sells, transfers or assigns the Cable System, of if the Village terminates or revokes the Operator’s Franchise, the insurance required by this Chapter shall provide coverage through the end of the period established by the applicable statutes of limitation for all items insured.
(5) On or before the date on which the Operator’s Franchise becomes effective, the Operator shall furnish to the Village a certificate evidencing that a satisfactory insurance policy has been obtained. Such insurance policy shall require that the Village be notified sixty (60) days prior to any expiration or cancellation.
(6) All insurance policies maintained pursuant to this subsection (b) shall contain an endorsement to the following effect:
“It is hereby understood and agreed that this insurance policy may not be canceled by the surety, nor may the intention not to renew be stated by the surety until sixty (60) days after receipt by the Village of Millersburg, Ohio, by registered mail, of a written notice of such intention to cancel or not to renew.”
(7) Each Operator shall promptly notify the Village of any pending or threatened litigation that would be likely to affect its insurance coverage.
(b) Performance Bond.
(1) Each Operator shall furnish and file with the Village a performance bond (or letter of credit or similar security at the discretion of, and as approved by, the Village Solicitor) (the “Performance Bond”). The Performance Bond shall run to the Village in the amount of Fifty Thousand Dollars ($50,000) or such other amount as may be subsequently agreed to in the Franchise Agreement, which shall be conditioned upon and insure the faithful performance of the Operator of all terms and conditions of this Chapter, the Franchise and the payment by the Operator of any claim, liens, costs, expenses and taxes due the Village which arise by reason of the construction, operation or maintenance of the Cable System. The company providing such bond must be licensed to do business in the State of Ohio.
(2) The rights reserved by the Village with respect to the Performance Bond or other security are in addition to all other rights the Village may have under this Chapter, the Operator’s Franchise Agreement and/or any law.
(3) The Performance Bond shall be subject to the reasonable approval of the Village and shall, among other things, contain language substantially the same as the following:
“This Bond is executed to comply with the terms of Chapter 955 of the Codified Ordinances of the Village of Millersburg (the “Village”), pursuant to which the Village has granted __________________________________ (the “Grantee”) a franchise to use the public streets and places within the Village’s jurisdiction for the purpose of providing certain communication services within the Village. This Bond guarantees that the Grantee will comply with all Village ordinances and regulations and will faithfully perform well, and truly observe and fulfill each term and condition of the franchise, and in the event of Default by the Grantee (as defined in Chapter 955) the amount of this Bond shall be recoverable from the Principal and Surety by the Village for all damages proximately resulting from the failure of the Grantee to well and faithfully observe and perform any provision of the Village’s ordinances or regulations and the franchise up to a maximum of Fifty Thousand Dollars ($50,000.00).”
The Performance Bond shall further contain an endorsement to the following effect:
“It is hereby understood and agreed that this bond may not be canceled without the consent of the Village of Millersburg, Ohio, which shall not be unreasonably withheld, until sixty (60) days after receipt by the Village by registered mail, return receipt requested, of a written notice of intent to cancel or not to renew.”
(4) Each Operator will always maintain the full value of the Performance Bond for the full Franchise Term, regardless of claims against the Performance Bond made by, or paid to, the Village.
(5) Upon any Default by an Operator, including, without limitation: If an Operator fails to pay to the Village any taxes due and unpaid; or fails to repay to the Village, any damages, costs or expenses which the Village shall be compelled to pay by reason of any act or Default of the Operator in connection with this Chapter or the Franchise Agreement; or fails, within thirty (30) days of receiving notice of such failure from the Village, to comply with any provision of this Chapter and/or the Operator’s Franchise Agreement which the Village reasonably determines can be remedied by a claim against the Performance Bond, the Village shall then be entitled to receive the respective payment from the bonding company under the Performance Bond pursuant to Section 955.12 of this Chapter.
(6) If an Operator fails, within thirty (30) days of receiving notice of such failure from the Village, to commence or complete the construction and equipment of any facilities required by this Chapter or the Franchise Agreement in accordance with the specifications and timetable set forth in the Franchise Agreement, the Village shall have the right to complete construction and equipment of these facilities and be reimbursed by the Operator for the Village’s reasonable costs for such construction and equipment and the Village shall further be entitled to receive payment for such construction and equipment costs from the bonding company under the Performance Bond.
(c) Construction Bond. The Village may require an Operator to furnish and file a bond (or letter of credit or other security at the discretion of, and as approved by, the Village Solicitor) with the Village to insure the Operator’s performance in (i) the construction of a new Cable System in the event the Operator is being awarded a new and competing franchise, or (ii) any significant upgrade of the Cable System by the Operator, that is pursuant to the terms of the grant of a renewal franchise or is a result of Section 955.09 or any other Section of this Chapter (the “Construction Bond”).
(1) An Operator shall give sixty (60) days written notice to the Village prior to commencing the construction or upgrade of the Cable System, unless otherwise waived by the Village. Along with such notice, the Operator shall provide the Village with the estimated cost of the proposed construction or Cable System upgrade, and a detailed description of, and information concerning, the construction or upgrade of the Cable System as proposed, including but not limited to, the streets that will be (re)wired, location of poles and the wire cables and equipment to be placed on those poles and other relevant information such that the Village can independently verify the estimated cost of the construction or upgrade. The Operator shall also give written notice to the Village when construction or upgrade of the Cable System begins (“Commencement of Construction”).
(2) Before the Commencement of Construction, an Operator shall furnish and file a Construction Bond, that shall run to the Village in an amount equal to one hundred percent (100%) of the amount of the estimated cost to construct or upgrade the Cable System, or such lesser amount approved by the Village. The Construction Bond shall be conditioned upon and insure the faithful performance of the Operator of all terms and conditions of the Franchise Agreement with regard to constructing or upgrading the Cable System. The rights reserved to the Village with respect to the Construction Bond or other security are in addition to all other rights the Village may have under this Chapter, the Operator’s Franchise Agreement or any law. The company providing such bond must be licensed to do business in the State of Ohio.
(3) The Construction Bond shall be subject to the reasonable approval of the Village, shall comply with the specific provisions for the construction and/or upgrade of the Cable System, if any, as required by the Franchise Agreement or any amendment to the Franchise Agreement pursuant to Section 955.09, and shall guarantee the Operator’s compliance with all provisions of this Chapter and any other Village ordinances and/or regulations that are applicable to the construction and/or upgrade of the Cable System.
(4) Upon the satisfactory completion of the construction or upgrade of the Cable System the Village will permit the Operator to release the Construction Bond.
(5) If an Operator fails, within thirty (30) days of receiving notice of such failure from the Village, to commence or complete the construction or upgrade of the Cable System in accordance with the specifications and timetable set forth in the Franchise Agreement or any amendment to the Franchise Agreement, the Village shall have the right to complete construction or upgrade of the Cable System and be reimbursed by the Operator for the Village’s reasonable costs for such construction or upgrade and the Village shall further be entitled to receive payment for such construction costs from the bonding company under the Construction Bond.
(Ord. 2001-109. Passed 11-13-01.)