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(1) The licensee shall indemnify, save harmless and defend the city, its mayor and council, appointed boards and commissions, officers and employees, individually and collectively from all fines, liens, suits, claims, demands, actions, costs of litigation, attorneys' fees, judgments or liability of any kind (including but not limited to libel, slander, invasion of privacy, unauthorized use of any trademark, trade name or service mark, copyright infringement, injury, death or damage to person or property) arising out of or in any way connected with the installation, construction, operation, maintenance or condition of the system. The licensee shall assume all risks in the operation of the system and shall be solely responsible and answerable for any and all accidents or injuries to persons or property arising out of the performance of the license agreement. The amounts and types of insurance coverage requirements set forth in section 7A-31 ("insurance") shall in no way be construed as limiting the scope of indemnity set forth in this section. The city shall give the licensee timely written notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the indemnity of this section, where the licensee is not a party thereto.
(2) Disputes regarding issuance of license:
(a) Licensee shall indemnify save harmless and defend the city, its mayor and council, appointed boards and commissions, officers and employees, individually and collectively from all fines, liens, suits, claims, demands, actions, costs of litigation, attorneys' fees, judgments or liability of any kind arising from the defense of any litigation brought by third parties challenging the right of the city to issue the license under state law. The city shall give the licensee timely written notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the indemnity of this section, where the licensee is not a party thereto. In the event that any such litigation ensues, the city may, but is not required to, tender the defense of such litigation to licensee, which shall then defend the litigation; provided, however, that if the city tenders such defense to licensee, licensee shall have the right to retain counsel of its own choice, to settle all or any part of the litigation on terms acceptable to licensee (and as determined in the sole discretion of the city, acceptable to the city), or at any time of its election, to terminate its license under the termination terms provided in the license and withdraw from any such litigation.
(b) Licensee shall assume the risk of, and shall relinquish any claim against the city in connection with any final, non-appealable determination by a court of competent jurisdiction that the city lacked the current statutory authority to issue the license.
(Ord. No. 8937, § 2, 9-2-97)
Within thirty (30) days after written notification of the award of a license by the city, the licensee shall file with the city manager and maintain in full force and effect throughout the term of the license agreement insurance policies issued by an insurer duly authorized to conduct business in the state, insuring with respect to the installation, construction, operation and maintenance of the system as follows:
(1) Comprehensive general and automobile liability coverage including, but not limited to: (a) blanket contractual liability; (b) completed operations liability; (c) broad form property damage endorsement, including but not limited to coverage for explosion, collapse and underground hazard; and (d) automobile non-ownership liability. This insurance shall be written in the following minimum amounts:
(a) For bodily injury, including death: Five hundred thousand dollars ($500,000.00) combined single limit;
(b) Property damage: Five hundred thousand dollars ($500,000.00) combined single limit;
(c) Comprehensive automobile liability; bodily injury: Five hundred thousand dollars ($500,000.00) combined single limit;
(d) Excess umbrella liability in the minimum amount of five million dollars ($5,000,000.00).
(2) Workers' compensation coverage as required by the laws, rules and regulations of the state.
(3) All insurance policies required herein shall include the city as an additional insured.
(4) With respect to the insurance required herein, the licensee shall be solely responsible for all premiums due and payable.
(5) The insurance policies required by this section shall contain the following endorsement, or substantially similar language approved by the city attorney:
It is hereby understood and agreed that this policy of insurance may not be canceled by the insurer nor the intention not to renew be stated by the insurer until sixty (60) days after receipt by the City of Tucson, by registered mail, of written notice of such intent to cancel or not to renew.
(6) It is each licensee's responsibility to ensure that every insurance policy conforms to the city's requirements. Each licensee must provide a standard insurance certificate or other adequate proof required by the city attorney, updated whenever there is a change in the policy or insurer, showing that the policies conform to all the requirements herein, without condition or exception. No licensee may initiate or begin construction until such proof has been provided.
(Ord. No. 8937, § 2, 9-2-97)
(1) Performance bond. Within thirty (30) days after written notification of the award of a license by the city, the licensee shall file with the city a performance bond for the benefit of the city in the amount of one million dollars ($1,000,000.00) to be effective upon the execution of the license agreement and conditioned that in the event that the licensee fails to comply with any provision of this chapter, the license agreement or other law applicable to the license, then there shall be recoverable jointly and severally from the principals and surety any and all damages or costs suffered or incurred by the city, including but not limited to attorney's fees and costs of any action or proceeding, and including the full amount of any compensation, indemnification, cost of removal or abandonment of any property or other costs due and owing the city up to the full principal amount of such bond. The performance bond shall be maintained in full as a continuing obligation during the entire term of the license agreement and thereafter until the licensee shall have satisfied in full any and all obligations to the city which arise out of or pertain to the license agreement. The performance bond shall be issued by a surety company authorized to do business in the state and shall be in a form approved by the city attorney.
(a) 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 (60) days after receipt by the City of Tucson, by registered mail, of written notice of such intent to cancel or not to renew.
(b) None of the provisions of this section or section 7A-33 ("Security Fund"), nor any damages recovered by the city thereunder, shall be construed to excuse the faithful performance by or limit the liability of the licensee.
(c) Upon application to the city, the licensee shall be entitled to the return of the performance bond at the expiration of the license agreement, or any renewal thereof provided there is then no outstanding default or moneys due the city by the licensee; provided that, nothing herein shall be read to excuse a licensee from its obligation to have a performance bond during the renewal term.
(Ord. No. 8937, § 2, 9-2-97)
(1) Within thirty (30) days after written notification of the award of a license by the city, the licensee shall deposit with the finance director of the city, and maintain on deposit throughout the term of the license agreement, a security fund in the sum of fifty thousand dollars ($50,000.00) in cash as security for the faithful performance by the licensee of all provisions of this chapter and the license agreement and compliance with all orders, permits and directions of any agency or department of the city having jurisdiction over the licensee's operations. In lieu of the cash deposit, a licensee may provide an irrevocable and unconditional fifty thousand dollar ($50,000) letter of credit with a local financial institution, in a form acceptable to the city attorney. Both the letter of credit and the cash deposit are referred to by the term "security fund" in subsections (2) through (6).
(2) Within fifteen (15) days after written notice to the licensee by the city that the city has withdrawn any amount from the security fund, the licensee shall deposit or pay to the finance director a sum of money sufficient to restore such security fund to the original amount of fifty thousand dollars ($50,000.00), or, in the case of a letter of credit, restore the letter of credit to its full amount.
(3) If the licensee fails to pay the city any moneys due within the time fixed in this chapter or the license agreement; or fails after ten (10) days' written notice to pay to the city any taxes due and unpaid; or fails to repay to the city after ten (10) days' written notice any damages, penalties, costs or expenses which the city may be compelled to pay by reason of any act, omission or default of the licensee; or fails, after ten (10) days' written notice, to comply with any provision of this chapter or the license agreement which the city reasonably determines can be remedied or partially cured by an expenditure from the security fund, the finance director may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the finance director shall in writing notify the licensee of the amount and date thereof. In the event the security fund is insufficient to pay the city for any compensation, damage, penalties, costs or expenses owing to the city pursuant to this chapter or the license agreement, the performance bond may be drawn upon by the city for any amount due the city over and above the amount in the security fund.
(4) The security fund, including any interest that may have accrued, shall become the property of the city in the event that a license agreement is terminated by the city by reason of a violation of this chapter or breach of the license agreement pursuant to the provisions of section 7A-24 ("renewal and termination").
(5) Upon application to the city, the licensee shall be entitled to the return of all moneys remaining in the cash security fund, including accrued interest, at the expiration of the license agreement or any renewal thereof, provided there is then no outstanding default or moneys owing on the part of the licensee to the city; provided that, nothing herein shall be read to excuse a licensee from its obligation to have a security fund during the renewal term.
(6) The rights reserved to the city with respect to the security fund are in addition to all other rights of the city, whether reserved by this chapter or authorized by law; and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the city may have.
(Ord. No. 8937, § 2, 9-2-97)
(1) In addition to any other consideration supporting the award of a license by the city, including but not limited to the granting of the privilege to utilize the rights-of-way of the city pursuant to this chapter for the purpose of providing cable service, and the license agreement to construct and operate the system, the licensee shall pay to the city an amount equal to five (5) percent of gross revenues.
(2) It is the intent of the city that these license fees may be utilized, in the discretion of the mayor and council, to defray certain of the costs of local regulation of the licensee and the system, to support the development and maximum utilization of all PEG channels to generally encourage development of the system to full utilization and potential, and for other purposes.
(3) Payments due the city under this section shall be computed quarterly, for the preceding quarter, as of March 31, June 30, September 30 and December 31 of each year. Each quarterly payment shall be due and payable no later than thirty (30) days after the applicable computation date. Each payment shall be accompanied by a financial statement showing in detail the gross revenues of the licensee relating to the relevant calendar quarter as well as any other report required by section 7A-22.
(4) No acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the city may have for further or additional sums due and payable. The city or its designate shall have a right to audit all financial records of licensee reasonably necessary to the determination of whether gross revenues and franchise fees have been accurately computed and paid upon the giving of reasonable notice and during normal business hours. In the event an audit results in additional moneys owed the city, interest shall be charged at the rate of one (1) percent per month on the unpaid balance. If there is a dispute as to whether a particular item of revenue is within the scope of the term "gross revenues," records will be provided without prejudice to any claim the licensee might have that a franchise fee is not owed on such revenues. Provided that, a licensee may withhold revenue records for items that it claims are not "gross revenues" so long as the licensee (i) provides a certified statement describing the nature of the revenues contained in the records withheld and (ii) agrees, in its license agreement, to pay all costs, including attorney fees, that the city incurs should the city seek production of the records and ultimately prevail. Each licensee shall be required, in accordance with the terms of its license, to pay for any audit where the audit shows the licensee failed to pay the license fee due to the city.
(5) The payment required pursuant to this section shall be in addition to and not in lieu of any other tax, fee (including by way of example and not limitation, permit fees), or payment owed the city by the licensee pursuant to any other applicable provisions of this Code or laws of the state, unless the tax, fee or payment is required to be treated as a franchise fee under 47 U.S.C. § 542.
(Ord. No. 8937, § 2, 9-2-97)
(1) Without limitation upon the rights which the city might otherwise have, every license issued shall be deemed to expressly reserve the following rights, powers and authorities, whether expressly set forth in the license or not:
(a) To exercise its governmental powers now or hereafter to the full extent that such powers may be vested in or granted to the city.
(b) To determine any question of fact relating to the meaning, terms, obligations or other aspects of this chapter and the license agreement, subject to applicable judicial review.
(c) To inspect all construction or installation work performed by the licensee, and to supervise all construction in the rights-of-way or on city property.
(2) Nothing in this chapter shall be deemed or construed to impair or affect the right of the city to exercise its power of eminent domain to acquire the property of the licensee for just compensation, which shall not include any amount for the license itself or any privilege thereunder.
(3) The city reserves the right, during the term of the license agreement, to install and utilize, upon the poles and conduits owned or jointly owned by the licensee, any wire or pole fixtures required for municipal purposes, without cost to the city so long as such installation and utilization does not unduly interfere with the operation of the system.
(Ord. No. 8937, § 2, 9-2-97)
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