27.290 Indemnification and Insurance.

(1) Indemnification. The franchisee shall protect, defend, indemnify and hold free and harmless the City and its officers, employees, committees, boards, commissions and other governmental subunits, advisors and agents from and against any and all liability, losses, penalties, damages, settlements, costs, charges, professional fees or other expenses or liabilities of every kind and character arising out of or relating to any and all claims, liens, demands, obligations, actions, proceedings or causes of action of every kind and character (referred to collectively below as “claims”) in connection with or arising directly or indirectly out of the issuance and administration of a franchise, or the franchisee’s enjoyment or exercise of the same. By way of illustration and not limitation, this would include claims arising out of acts or omissions in constructing, operating or repairing the cable system by the franchisee or any entity for whose acts or omissions the franchisee may be liable, without regard to whether the act or omission giving rise to the indemnity was required, allowed, or prohibited by a franchise or applicable law, and claims of injury to persons or damage to property occasioned by reason of any conduct undertaken pursuant to a franchise. Without limiting the generality of the foregoing, any and all such claims relating to personal injury, death, damage to property, defects in material or workmanship, actual or alleged infringement of any patent, trademark, copyright (or application for any thereof) or of any other tangible or intangible personal or property right, or any actual or alleged violation of any applicable Statute, ordinance, administrative order, rule or regulation, or decree of any court, shall be included in this indemnity. The franchisee shall investigate, handle, respond to, provide defense for and defend any such claims, etc., at its sole expense and shall bear all other costs and expenses related thereto, even if the franchisee believes the claim is groundless, false or fraudulent. Provided, further, that the duty to indemnify includes, but is not limited to, the duty to pay the reasonable expenses incurred by the City, its officers, agents and employees, in defending themselves, including but not limited to all out-of-pocket expenses, and, if franchisee or the City determines that the interests of the franchisee and the City conflict, attorney’s fees for outside counsel, and the reasonable value of any services rendered by the City’s attorney or any legal assistants, or by any employees of the City in defending the matter.

(2) Insurance.

(a) Insurance Required. The franchisee shall purchase and maintain, during the full term of a franchise and any extensions and renewals thereof, such insurance as will protect it and the City from any claims which may arise directly or indirectly or result from the issuance of a franchise or the enjoyment or exercise of the same, including, by way of illustration and not limitation, claims that may result from the construction, operation or repair of the cable system, whether such construction, operation or repair is performed by the franchisee or by anyone for whose acts the franchisee may be liable. The insurance shall, at a minimum, include the following:

1. Worker’s compensation, including liability benefits and any other legally required employee benefits, shall be supplied in statutory amounts.

2. General liability insurance, including motor vehicle, shall be supplied in the following amounts:

Personal injury or death: $5,000,000 per person.

Property damage: $2,000,000 per occurrence.

Umbrella liability: $5,000,000.

Cablecaster’s liability: $1,000,000 per occurrence.

The umbrella liability shall include coverage of worker’s compensation, commercial or comprehensive general liability, coverage for claims arising under the laws of copyright, defamation, invasion of privacy, obscenity and other, similar laws relating to the production, publication and retransmission of information.

(b) Endorsements in Favor of Municipalities.

1. The City shall be named as an additional insured on all policies maintained pursuant to the franchise, except worker’s compensation insurance.

2. The franchisee’s liability insurance policies shall include an endorsement that recognizes that insurance policies cover the franchisee’s duty to indemnify in accordance with subsection (1) of this section.

3. The franchisee’s insurance policies shall contain an endorsement stating:

It is understood and agreed that this policy may not be canceled nor the amount of coverage reduced, nor the coverages materially modified in a manner that decreases coverages until 30 days after receipt by each of the Clerk of the City of Manitowoc, by certified mail, of a written notice of intent to cancel, reduce or modify the coverage.

(c) Evidence of Insurance. The franchisee shall furnish to the City certificates of insurance acceptable to the City which shall show that the policies include all the coverages and the endorsements specified above. The certificates shall be provided within 30 days of the date a franchise agreement is signed, and new certificates shall be provided annually on December 31st of each year, or any time the insurance carrier or policies are changed. Failure to maintain insurance as required herein, or to furnish certificates of insurance, shall constitute a material and substantial violation of any franchise agreement. Upon request, the franchisee shall provide the City complete copies of the insurance policies (including any riders or addenda thereto).

(d) Approval. All insurance coverage shall be subject to approval of the City as to the issuing company and the form of the policies and certificates of insurance, which approval will not be unreasonably withheld.

(e) Other Policies. The franchisee, in addition to all other insurance requirements herein, shall procure and maintain insurance in the type and amount as may be required in any license, permit, or agreement obtained in connection with the construction, operation or repair of its cable system and which is necessary to complete any construction, operation or repair (e.g., highway permit, railroad crossing agreement, Corps of Engineers permit) regardless of who secured the franchise, permit or agreement.

(f) Additional Insurance. The City may require the franchisee to provide additional coverages or increase the insurance amounts from time to time as it deems appropriate to reflect inflation and increased risks to the City.

[Prior code § 27.29]