(a) Damages and Penalties. The Franchisee by its acceptance of this Franchise, specifically agrees that it will pay all damages and penalties which the City may legally be required to pay as a result of granting this Franchise. These damages and penalties shall include, but not be limited to, all damages arising out of the installation, operation, repair, maintenance, upgrade, or removal of the System authorized herein, whether or not any act or omission complained of is authorized, allowed, or prohibited by this Franchise.
(b) Defense Expenses. The Franchisee shall pay and by its acceptance of this Franchise specifically agrees that it will pay all expenses incurred by the City in defending itself with regard to all damages and penalties mentioned in Oxford Code Section 731.11(a) above. These expenses shall include, but not be limited to, all out-of-pocket expenses, attorney's fees, and shall also include the reasonable value of any services rendered by the City Department of Law.
(c) Claims by City. The City must do the following to notify Franchisee to claim Defense Expenses:
(1) Promptly notifying the Franchisee of any claims or legal proceeding which gives rise to such right;
(2) Affording the Franchisee the opportunity to participate in and fully control any compromise, settlement or other resolution or disposition of such claim or proceeding;
(3) Fully cooperating with the reasonable requests of the Franchisee, at the Franchisee's expense, in its participation in, and control, compromise, settlement or resolution or other disposition of such claim or proceeding.
(d) Damaged Property. The Franchisee shall, at its own cost and expense, replace, repair, or restore any damaged property to its prior condition.
(e) Liability Insurance. The Franchisee shall maintain at its own cost and expense, a comprehensive liability insurance certificate, subject to the Approval of the City Manager, which shall not be unreasonably withheld, and naming the City as an additional insured with regard to all damages mentioned in the subsections above, the following minimum coverage:
(1) Worker's Compensation - as required by the State of Ohio
(2) Comprehensive General Liability - $4,000,000.00 (Combined Aggregate)
(3) Comprehensive Automobile Liability - $1,000,000.00, or
For each and every occurrence, the minimum combined amount of five million dollars ($5,000,000.00) for bodily injury, death, and property damage. The foregoing minimum shall not limit the Franchisee from obtaining liability insurance in excess of that amount, providing that the City shall be named as additional insured to the full extent of any such policy.
(f) Continuation of Insurance. The liability insurance required in Oxford Code Section 731.11(d) above shall be maintained throughout the Term of the Franchise and extensions thereof and any such other period of time in which the Franchisee operates or is engaged in the removal of the System. Each liability insurance policy shall be issued by companies duly licensed to do business in the State of Ohio, and such companies must carry a rating of not less than "A". Each certificate shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until thirty (30) days after receipt by the City, by registered mail, of a written notice of such intent to cancel or not renew."
Within thirty (30) days after receipt by the City of said notice, and no later than fifteen (15) days prior to cancellation, the Franchisee shall obtain replacement insurance policies in a form consistent with this ordinance.
(g) Legal Liability. The legal liability of the Franchisee to the City and/or any Person for the matters listed above, which are subject to said insurance policies shall not be limited by the insurance policies nor by the recovery of amounts thereunder.
(h) Copyright Indemnification. The Franchisee agrees to fully indemnify and hold the City harmless for all damages incurred by the City resulting from the Franchisee's infringement of the copyrights of others.
(i) Performance Bond. The Franchisee shall maintain throughout the term of this franchise a faithful performance bond in favor of the City, with at least one (1) good and sufficient surety approved by the City in the penal sum total of twenty-five thousand dollars ($25,000.00). This amount shall be increased to fifty thousand dollars ($50,000.00) during construction contemplated by Section 731.13 of this franchise. The performance bond shall be conditioned upon the faithful performance by the Franchisee of its obligations under this franchise. After the construction is completed as defined in Section 731.13, the performance bond shall be reduced to twenty-five thousand dollars ($25,000.00) through the remainder of the term of this franchise.
(j) Security Fund. The performance bond enumerated in subsection (i) shall serve as the security fund for the faithful performance of all provisions of this Agreement, and the City shall be permitted to draw upon this bond as a remedy for liquidated damages or any other breach of any other provision of this agreement. Franchisee agrees to replenish the bond to its original amount as stated in subsection (i) should the City withdraw all or part of the bond amount for as many times as required during the term of this Agreement.
(Ord. 2439. Passed 1-2-96.)