A. Disclaimer of liability. Except as otherwise set forth in this article, Village shall not at any time be liable for injury or damage occurring to any person or property from any cause whatsoever arising out of a licensee's construction, maintenance, repair, use, operation, condition or dismantling of a licensee's cable system or licensee's provision of cable service.
B. Indemnification. Each licensee shall, at its sole cost and expense, indemnify, defend and hold harmless Village and all associated, affiliated, allied and subsidiary persons and entities of Village, now existing or hereinafter created, and their respective officers, boards, commissions, employees, agents, attorneys, and contractors (hereinafter referred to as “indemnitees”), from and against:
1. Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants) which may be imposed upon, incurred by or be asserted against the indemnitees by reason of any act or omission of the licensee, and its affiliates and their personnel, employees, agents, contractors or subcontractors, resulting in personal injury, bodily injury, sickness, disease or death to any person or damage to, loss of or destruction of tangible or intangible property, libel, slander, invasion of privacy and unauthorized use of any trademark, trade name, copyright, patent, service mark or any other right of any person, which may arise out of, or be in any way connected with, the construction, installation, operation, maintenance or condition of the cable system (including those arising from any matter contained in or resulting from the transmission of programming over the cable system but excluding any programming provided by the indemnitees that are transmitted over the cable system), the provision of cable services or the licensee's failure to comply with any federal, state or local statute, ordinance, or regulation.
2. Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and other consultants) which are imposed upon, incurred by or asserted against the indemnitees by reason of any claim or lien arising out of work, labor, materials or supplies provided or supplied to the licensee or its affiliates and their contractors or subcontractors, for the installation, construction, operation or maintenance of the cable system or provision of cable services. Upon the written request of Village, a licensee shall cause such claim or lien covering Village's property to be discharged or bonded within thirty (30) days following such request.
3. Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants) which may be imposed upon, incurred by or be asserted against the indemnitees by reason of any financing or securities offering by the licensee or its affiliates for violations of the common law or any laws, statutes, or regulations of the State of Illinois or United States, including those of the Federal Securities and Exchange Commission, whether by the licensee or otherwise.
4. Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and other consultants) arising from third-party claims or suits arising out of or in any way related to the grant of, or terms of, a franchise agreement.
5. Negligence of indemnitees. A licensee's obligation to indemnify indemnitees under a franchise agreement shall extend to claims, losses, and other matters covered hereunder that are caused or contributed to by the negligence of one (1) or more indemnitees. However, in such case, the obligation to indemnify shall be reduced in proportion to the negligence of the indemnitees.
C. Assumption of risk. Each licensee shall undertake and assume for its officers, agents, contractors, subcontractors, and employees (collectively “licensee” for the purpose of this section), all risk of dangerous conditions, if any, on or about any Village-owned or controlled property, the streets and public ways, and each licensee shall agree to indemnify and hold harmless the indemnitees against and from any claim asserted or liability imposed upon the indemnitees for personal injury or property damage to any person (other than from indemnitee's negligence) arising out of the licensee's installation, operation, maintenance, or condition of the cable system or the licensee's failure to comply with any federal, state, or local statute, ordinance, or regulation.
D. Notice and defense.
1. Notice by indemnitees. The indemnitees shall give the relevant licensee prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this article.
2. Notice by licensee. Each licensee shall immediately advise its indemnitees of any claim or litigation that may result in liability to indemnitees.
3. Defense of indemnitees. In the event any action or proceeding shall be brought against the indemnitees by reason of any matter for which the indemnitees are indemnified hereunder, a licensee shall, upon notice from any of the indemnitees, at the licensee's sole cost and expense, resist and defend the same; provided, however, that the licensee shall not admit liability in any such matter on behalf of the indemnitees without the written consent of the corporate authorities and provided further that indemnitees shall not admit liability for, nor enter into any compromise or settlement of, any claim for which they are indemnified hereunder, without the prior written consent of the licensee.
E. Insurance.
1. Coverages and limits. During the term of its franchise agreement, a licensee shall maintain, or cause to be maintained, in full force and effect and at its sole cost and expense, the following types of insurance with limits provided in its franchise agreement:
a. Worker's compensation insurance meeting Illinois statutory requirements and employer's liability insurance.
b. Comprehensive or commercial general liability insurance for bodily injury, personal injury and property damage. The policy shall provide blanket contractual liability insurance that shall also cover occurrences causing bodily injury and property damage arising out of the operations of the licensee (as named insured on the policy), and shall include coverage for products and completed operations liability, independent contractor's liability; coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage.
c. Media professional liability coverage for loss or damage arising out of publications or utterances in the course of or related to advertising, broadcasting, telecasting or other communication activities conducted by or on behalf of the licensee for bodily injury, personal injury and property damage.
d. Automobile liability insurance covering all owned, hired, and non-owned vehicles in use by the licensee, its employees and agents, including residual liability insurance for bodily injury and property damage.
e. At the start of and during the period of any construction, all risk, builders risk or equivalent insurance, providing coverage on all buildings and structures that will be installed or constructed as part of the cable system, together with an installation floater or equivalent property coverage covering cables, materials, machinery and supplies of any nature whatsoever which are to be used in or incidental to the construction of the cable system. Upon completion of the construction of the cable system, a licensee shall substitute for the foregoing insurance policies of fire, extended coverage and vandalism and malicious mischief insurance on the cable system. The amount of insurance at all times shall be representative of the insurable values installed or constructed.
2. Scope of coverage and types of policies. All insurance policies shall be written on an occurrence and not on a claims made basis. The coverage amounts set forth above may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated.
3. Period of coverage. The insurance policies required by this section shall:
a. Be maintained by each licensee throughout the term of its franchise agreement and such other period of time during which the licensee operates or is engaged in the removal of the cable system, whichever is longer; and
b. Provide coverage for the entire term of its franchise agreement and such other period of time during which the licensee operates or is engaged in the removal of the cable system, irrespective of when a claim is made.
F. Additional insureds. All policies, except for business interruption and worker's compensation policies, shall name the “Village of Winnetka, a home rule municipal corporation of the State of Illinois and all associated, affiliated, allied and subsidiary entities of the Village, now existing or hereafter created, and their respective officers, boards, commissions, employees, agents and contractors, as their respective interests may appear” as additional insureds (herein referred to as the “additional insureds”).
G. Evidence of insurance. On or before the effective date of its franchise agreement, certificates of insurance for each insurance policy required to be obtained by a licensee in compliance with its franchise agreement, shall be filed and maintained with the Village annually and at any time of policy change or cancellation during the term of its franchise agreement.
H. Cancellation of policies of insurance. All certificates of insurance for policies maintained pursuant to a franchise agreement shall contain an endorsement consistent with the following:
At least thirty (30) days' prior written notice shall be given to the Village of Winnetka by the issuing company of any intention not to renew such policy or to cancel, replace or materially alter same; such notice to be given via certified mail with return receipt required or via reputable overnight courier service where a delivery receipt is provided.
I. Insurance companies. All insurance shall be effected under valid and enforceable policies, issued by insurers legally able to conduct business with the licensee in the State of Illinois. All insurance carriers and surplus line carriers shall be rated “A-” or better and of a class size “X” or higher by A.M. Best Company.
J. Deductibles. All insurance policies may be written with retainages and deductibles. Each licensee shall agree to indemnify and save harmless the indemnitees and additional insureds from and against the payment of any retainage or deductible and from the payment of any premium on any insurance policy required to be furnished by its franchise agreement.
K. Contractors. Each licensee shall require that each and every one of its contractors and their subcontractors carry, in full force and effect, workers' compensation, employer's liability, comprehensive general liability and automobile liability insurance coverages of the type which licensee is required to obtain under the terms of this article, including section 10-95 regarding additional insureds, with appropriate limits of insurance. In the alternative, each licensee, at its expense, may provide such coverages for any or all its contractors or subcontractors, but if a licensee does so it shall provide evidence of same in writing to Village. Failure by a licensee or a licensee's contractors or subcontractors to carry the required insurance does not relieve a licensee from any liability of the contractors or subcontractors that would otherwise be covered by insurance.
L. Insurance primary. A licensee's insurance pursuant to its franchise agreement shall be primary and non-contributory with respect to the Village. The purchase of such insurance shall not limit a licensee's obligations under sections 10-91, 10-92, and 10-93 of this article. The relationship of a licensee's insurance with respect to any insurance provided by contractors or subcontractors, pursuant to section 10-100, shall be determined by the respective contracts or subcontracts.
M. Review of limits.
1. Review. Not more than once during every three (3) calendar years during the term of a franchise agreement, Village may review the insurance coverages to be carried by a licensee. If Village determines that higher limits of coverage are necessary to protect the interests of Village or the additional insureds, the licensee and Village shall meet and negotiate such additional limits.
2. Changes in cable system. At any time that a licensee proposes to engage in any construction which substantially expands or upgrades the cable system other than routine repairs, replacement, or maintenance, the Village may review the insurance coverages carried by the licensee. If Village determines that additional coverages or higher limits of coverage are required to protect the interests of Village, the indemnitees, or the public, the Village shall notify the licensee of its determination and Village and licensee shall negotiate for appropriate modifications in coverages or limits, which modifications shall be mutually agreed upon by the Village and licensee in writing prior to commencement of such construction. The licensee shall obtain and maintain such additional coverages or limits at its sole cost and expense for the duration of the construction.
(MC-10-2007, Added, 07/10/2007)