17-10 INSURANCE; INDEMNIFICATION.

Upon filing the acceptance required under Section 17-11, the operator shall file with the Town, and shall at all times thereafter maintain during the term of the franchise, an acceptable corporate surety bond, irrevocable letter of credit drawn in the Town’s name, or other adequate surety agreement (security) in the amount of fifty thousand ($50,000.00) dollars. The security shall be conditioned so that in the event the operator fails to comply with any provision of the franchise, there will be recoverable jointly and severally from the principal and surety any damages, loss or costs suffered or incurred by the Town as a result thereof, including attorney’s fees and costs of any action or proceeding, and including the full amount of any compensation, indemnification, or costs of removal or abandonment, of property as prescribed elsewhere in this chapter or other costs which may be in default, up to the full amount of the bond, letter of credit or other surety agreement. The condition shall be a continuing obligation during the term of the franchise and thereafter until the operator satisfies all obligations to the Town which pertain to the franchise. Neither this subsection nor the security accepted by the Town, nor damages recovered by the Town under the security excuses faithful performance by the operator or limits the operator’s liability for damages.

If at any time during the term of the franchise, the condition of the corporate surety changes in such a manner as to render the bond, letter of credit or other surety agreement unsatisfactory to the Town, the operator shall replace it with other security of like amount and similarly conditioned,issued by a corporate surety satisfactory to the Town. The Council may authorize or require appropriate adjustments in the amount of the security required under this subsection. (Ord. #23-83, §1)

The operator shall indemnify and hold harmless the Town, its officer, boards, commissions, agents, and employees from claims, demands, causes of action, suits, proceedings, damages (including but not limited to damages to the Town property and damages arising out of copyright infringements and damages arising out of any failure by the operator to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the operator’s cable television system), costs or liabilities (including costs of liabilities of the Town with respect to its employees), of every kind and nature whatsoever, including but not limited to damages for injury or death or damage to person or property, due to the act or failure to act of the operator, its employees or agents and regardless of the merit of any of the same, including attorneys fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, traveling and transportation, or other costs or expense arising out of or pertaining to the exercise or the enjoyment of any franchise hereunder by the operator, or the granting thereof by the Town. (Ord. #23-83, §1)

17-10.3 Defense of Litigation.

a. The operator shall at its expense, upon demand by the Town, defend all suits, actions, or other legal proceedings whether judicial, quasi-judicial, administrative or legislative, brought or instituted against the Town, its officers, boards, commissions, agents, or employees, and arising out of or pertaining to the act or failure to act of the operator, its employees or agents.

b. The operator shall pay and satisfy every judgment, decree, order, directive, or demand made or issued against the operator, Town, it officers, boards, commissions, agents or employees when it is directly attributable to the acts or failure to act of the operator, its employee or agents. Such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required under this chapter. However, neither the operator nor the Town shall enter into any compromise or settlement of a claim, demand, cause of action, suit, or other proceeding, without first obtaining the written consent of the other, which shall not unreasonably be withheld.

(Ord. #23-83, §1)

a. Upon the filing of the acceptance required under Section 17-11, the operator shall file with the Town and shall thereafter during the term of the franchise maintain at its own cost and expense, general comprehensive liability insurance in the amount of two million ($2,000,000.00) dollars together with bodily injury liability insurance in an amount not less than five hundred thousand ($500,000.00) dollars for injuries including accidental death, to any one (1) person, and subject to the same limit for each person in an amount not less than one million ($1,000,000.00) dollars on account of any one (1) occurrence, and property damages liability insurance in an amount not less than one hundred thousand ($100,000.00) dollars resulting from any one (1) occurrence. The Town shall be named as an insured in each insurance policy. Where insurance is provided by a policy which also covers the operator or another entity or person, it shall contain the standard cross-liability endorsement. By regulation the Town may reasonably increase the required face amounts of insurance as to any then-existing franchise.

b. Certificates evidencing insurance coverage shall be filed with the Town at the beginning of the franchise term. Each certificate shall provide that the insurance coverage will not be cancelled, reduced or changed without at least thirty (30) days prior written notice to the Town. At least thirty (30) days before expiration of a policy, a certificate showing that the insurance coverage is renewed shall be filed with Town. If the operator fails to obtain or keep insurance in force, the Town may (but shall not be required to) obtain insurance in which event the operator shall promptly reimburse the Town its premium cost plus ten (10%) percent interest until paid.

(Ord. #23-83, §1)

The Town may in the award agreement require the operator to establish an insured account as security for the operator’s: (1) faithful performance of the requirements of the franchise; (2) compliance with all orders, permits and direction of the Town; (3) payment of any claims, liens, payments and taxes due the Town.

The security fund, if required, shall operate as follows:

a. Within thirty (30) days after the effective date of the franchise, the operator shall deposit into an insured account, established by the Town, and maintain on deposit throughout the term of the franchise, an amount of dollars as set forth in the award agreement, for the purpose set forth in the first paragraph of this subsection. The operator may earn interest on funds deposited in the security fund.

The Town may withdraw money from the security fund, including interest and penalties due, if any of the following occurs:

1. After ten (10) days notice, the operator fails to pay to Town:

• (a) Taxes or payments due and unpaid; or

• (b) Damages, costs or expenses which the Town has incurred because of the operator’s default.

2. After thirty (30) days notice, the operator fails to comply with a provision of the franchise which the Town determines can be remedied by an expenditure from the security fund. The Town shall notify the operator of the amount and date of withdrawal.

c. Within thirty (30) days after notice that an amount has been withdrawn by the Town from the security fund under this subsection, the operator shall deposit a sum of money sufficient to restore the security fund to the original amount.

d. The security fund established under this subsection shall become the property of the Town if the franchise is cancelled because of the default of the operator or revoked for cause. The operator is entitled to the return of the balance of the fund at the end of the franchise term or at the earlier termination if there is then no outstanding obligation.

e. Upon the operator’s successful completion of system construction, the Town may reduce the security fund to a lesser amount and refund the difference to the operator.

f. The rights reserved to the Town with respect to the security fund are in addition to all other rights and remedies of the

Town under the franchise.

(Ord. #23-83, §1)

Upon filing of the acceptance under Section 17-11, the operator shall file with the Town and shall thereafter, during the entire term of such franchise, maintain Worker’s Compensation Insurance coverage in at least the minimum amounts required by law. If the operator fails to maintain the required insurance, the Town may, without notice to the operator, obtain such insurance at the operator’s expense or terminate the franchise as provided in subsection 17-10.7. (Ord. #23-83, §1)

The operator’s willful failure to provide and keep in force a bond, security agreement or policy of insurance required under this chapter is, at the Town’s election, a material breach of the franchise. (Ord. #23-83, §1)