(A) Performance bond.
(1) Performance bond. Upon the effective date of the Franchise, the Grantee shall obtain and maintain during the entire term of the Franchise 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 Franchise to guarantee the faithful performance of the Grantee of all its obligations provided under this Ordinance and the Franchise. Failure to timely obtain, file and maintain said bond shall constitute a substantial violation 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 Grantee to: faithfully comply with the provisions of this Ordinance and the Franchise; 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 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 the Grantee abandons the cable system at any time during the term of the Franchise or any extension thereto.
(3) Reduction of bond. Upon written application by the Grantee, the City may, at its sole option, permit the amount of the bond to be reduced or waive the requirements for a performance bond. Reductions granted or denied upon application by the Grantee shall be without prejudice to the Grantee'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 Grantee within one (1) year of any prior application.
(4) Use of performance bond. Prior to drawing upon the performance bond for the purposes described in this Section, the City shall give the Grantee written notice of its intent to draw on the bond. Said notice shall detail the basis for drawing on the bond and, if the Grantee has not already been provided with a written notice of violation and an opportunity to correct the violation, the notice provided under this subsection shall provide the Grantee with a minimum of thirty (30) days to remedy the matter. If the matter is not remedied within the cure period specified in the applicable notice, the Grantee shall have thirty (30) days from the receipt of such written notice to make a full and complete payment. If the Grantee does not make the payment within the thirty (30) days mentioned previously, the City may withdraw the amount thereof, with interest, from the performance bond. Nothing herein shall preclude the City from taking action in emergency situations, related to the public health, safety, and welfare, without the thirty (30) day period specified above.
(5) Notification. Within three (3) days of a withdrawal from the performance bond, the City shall send to the Grantee, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal.
(6) Replenishment of performance bond. No later than thirty (30) days after mailing to the Grantee by certified mail notification of a withdrawal pursuant to subsection (5) above, the Grantee shall replenish the performance bond in an amount equal to the amount so withdrawn.
(7) Non-renewal, alteration, or cancellation of performance bond. The performance bond required herein shall be in a form satisfactory to the City and shall require thirty (30) days written notice of any non-renewal, alteration or cancellation to both the City and the Grantee. The Grantee 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 (30) days following receipt by the City or the Grantee of any notice of cancellation.
(8) Inflation. To offset the effects of inflation the amount of the performance bond provided for herein, is subject to reasonable increases at the end of every three (3) year period of the Franchise, applicable to the next three year period, upon the determination of the City.
(B) Liability and insurance.
(1) Certificate of insurance. Prior to commencement of construction, but in no event later than sixty (60) days after the effective date of the Franchise and thereafter continuously throughout the duration of the Franchise and any extensions or renewals thereof, the Grantee shall furnish to the City, certificates of insurance, approved by the City as to form and coverage, for all types of insurance required under this Section. Failure to furnish said certificates of insurance in a timely manner shall constitute a violation of this Ordinance.
(2) Filing. For any insurance certificate obtained by the Grantee in compliance with this Section, certificate of insurance shall be filed and maintained with the City Clerk during the term of a Franchise, and may be changed from time to time to reflect changing liability limits in the industry as a whole and/or to compensate for inflation based on the Labor Department's Consumer Price Index. Grantee shall immediately advise the City of any litigation that may develop that would affect this insurance.
(3) No liability limit. Neither the provisions of this Section or any damages recovered by the City hereunder, shall be construed to or limit the liability of the Grantee under any Franchise issued hereunder or for damages.
(4) Endorsement. All insurance policies maintained pursuant to this Ordinance or the Franchise 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) Hold harmless clause. All contractual liability insurance policies maintained pursuant to this Ordinance or the Franchise shall include provisions similar to the following hold harmless clause:
“The Grantee 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 Franchise and performed or caused to be performed pursuant thereto. 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) State institution. All insurance policies and bonds provided under the provisions of this Ordinance or the Franchise shall be written by companies authorized to do business in the State, and approved by the State Department of Insurance.
(7) Named insured. At any time during the term of the Franchise, the City may request and the Grantee shall comply with such request, to name the City as an additional named insured for all insurance policies written under the provisions of this Ordinance or the Franchise.
(8) General liability insurance. The Grantee shall maintain, and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, general liability insurance insuring the Grantee in the minimum of:
(a) $1,000,000 for property damage per occurrence;
(b) $2,000,000 for property damage aggregate;
(3) $1,000,000 for personal bodily injury or death to any one person; and
(4) $2,000,000 bodily injury or death aggregate per single accident or occurrence.
(9) Policy inclusions. Such general liability insurance must include coverage for all of the following: comprehensive form premises- operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury or death.
(10) Automobile liability insurance. The Grantee shall maintain, and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, automobile liability insurance for owned, non-owned, or rented vehicles in the minimum amount of:
(a) $1,000,000 for bodily injury and consequent death per occurrence;
(b) $1,000,000 for bodily injury and consequent death to any one person.
(c) $500,000 for property damage per occurrence.
(11) Worker's compensation and employer's liability insurance. The Grantee shall maintain and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, Worker's Compensation and employer's liability, valid in the State, in the minimum amount of:
(a) Statutory limit for Worker's Compensation.
(b) $100,000 for employer's liability.
(12) No limitation on liability. None of the provisions of this Ordinance or any insurance policy required herein, or any damages recovered by the City hereunder, shall be construed to excuse the faithful performance by or limit the liability of Grantee under this Ordinance or the Franchise for damages either to the limits of such policies or otherwise.
(C) Indemnification.
(1) Indemnification. To the fullest extent permitted by law, Grantee 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 judgements for injury or damages (including but not limited to expenses for reasonable legal fees, to the extent allowed by law, and disbursements assumed by the City in connection therewith):
(a) To persons or property in any way arising out of or through the acts or omissions of Grantee, its subcontractors, agents or employees, to which Grantee's negligence shall in any way contribute, and regardless of whether the negligence of any other party, excluding the City, shall have contributed to such claim, cause of action, judgement, 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 City programming.
(c) Arising out of Grantee's failure to comply with the provisions of any federal, state, or local statute, ordinances or regulation applicable to Grantee in its business hereunder.
(2) The foregoing indemnity is conditioned upon the City:
(a) Giving Grantee prompt notice of any claim or the commencement of any action, suit or proceeding for which indemnification is sought;
(b) Affording the Grantee 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 Grantee all pertinent information under the City's control.
(3) City representative. The Grantee shall pay the reasonable fees and expense of such separate counsel at its own expense except as provided in subsection (1) above.
(Ord. O-1997-53, passed 12-10-97)