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(a) Indemnification.

(1) General indemnification. The Grantee shall indemnify, defend and hold the Grantor, its officers and employees, harmless from any action or claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and attorney fees or expenses, arising from any casualty or accident to person or property, including, without limitation, copyright infringement, antitrust, civil rights and defamation, and all other damages in any way arising out of, or by reason of, any construction, excavation, operation, maintenance, reconstruction or any other act done under this franchise, by or for the Grantee, its agents, or its employees, or by reason of any neglect or omission of the Grantee. The Grantee shall reasonably consult and cooperate with the Grantor while conducting its defense of the Grantor.

(2) Indemnification for relocation. The Grantee shall indemnify the Grantor for any damages, claims, additional costs or expenses assessed against, or payable by, the Grantor arising out of, or resulting, directly or indirectly, from the Grantee’s failure to remove, adjust or relocate any of its facilities in the streets in a timely manner in accordance with any relocation required by the Grantor.

(3) Additional circumstances. The Grantee shall also indemnify, defend and hold the Grantor harmless for any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and attorney fees or expenses in any way arising out of:

a. The lawful actions of the Grantor in granting this franchise to the extent such actions are consistent with this franchise and applicable law;

b. Damages arising out of any failure by the Grantee to secure consents from the owners, authorized distributors or licensees/licensors of programs to be delivered by the cable system, whether or not any act or omission complained of is authorized, allowed or prohibited by this franchise.

(4) Procedures and defense. If a claim or action arises, the Grantor or any other indemnified party shall tender the defense of the claim to the Grantee. The Grantee shall not agree to any settlement of claims affecting the Grantor without the Grantor’s approval, which approval the Grantor shall not unreasonably withhold.

(5) Nonwaiver. The fact that the Grantee carries out any activities under this franchise through independent contractors shall not constitute an avoidance of or defense to the Grantee’s duty of defense and indemnification under this Section.

(6) Governmental immunity. The Grantor’s execution of this franchise is done in furtherance of the general public’s health, safety and welfare, and no immunity is waived thereby. The parties hereto understand and agree that the Grantor is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently one hundred fifty thousand dollars [$150,000.00] per person and six hundred thousand dollars [$600,000.00] per occurrence) or any other rights, immunities and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101, C.R.S., et seq., as from time to time amended, or otherwise available to the Grantor, its officers or its employees.

(b) Insurance.

(1) The Grantee shall maintain in full force and effect and at its own cost and expense the following insurance coverages that protect the Grantee and the Grantor, and the parties’ officers and employees, from any and all claims for damages or personal injury, including death, demands, actions, and suits brought against any of them arising from operations under this franchise or in connection therewith:

a. Commercial general liability insurance with minimum combined single limits of one million dollars ($1,000,000.00) each occurrence and two million dollars ($2,000,000.00) aggregate. The policy will include coverage for personal injury and property damage, plus costs of defense.

b. Commercial automobile liability insurance with minimum combined single limits of one million dollars ($1,000,000.00) each occurrence and two million dollars ($2,000,000.00) aggregate, plus costs of defense, with respect to each of the Grantee’s owned, hired and nonowned vehicles assigned to or used in the operation of the cable system in the franchise area.

(2) The insurance limits hereunder shall be revised upward in the event the statutory maximums applicable to local governments in Colorado are raised during the term of this franchise so as to exceed the coverage limits required pursuant to this franchise. The Grantor shall provide written notification to the Grantee of any increase in such statutory maximums, and shall allow the grantee a reasonable period of time within which to obtain the increased insurance coverage required by this Subsection. The insurance company providing insurance pursuant to this Section shall be licensed in the State of Colorado.

(3) The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the Grantor and its officers and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer’s liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one (1) person or interest had been named as insured. The coverage must apply as to claims between insureds on the policy.

(4) The insurance shall provide that the insurance shall not be cancelled or materially altered so as to be out of compliance with the requirements of this Section without thirty (30) days’ written notice first being given to the Grantor. If the insurance is cancelled or materially altered so as to be out of compliance with the requirements of this Section within the term of this franchise, the Grantee shall provide a replacement policy. The Grantee agrees to maintain continuous uninterrupted insurance coverage, in the amounts required, for the duration of this franchise.

(5) The Grantee shall maintain on file with the Grantor a certificate of insurance certifying the coverage required above, which certificate shall be subject to the reasonable approval of the Grantor as to the adequacy of the certificate. Willful failure to maintain adequate insurance as required under this Section shall be considered a material violation of this franchise.

(6) In the alternative to providing a certificate of insurance to the Grantor certifying insurance coverage as required above, the Grantee’s self-insurance shall provide the same amount and level of protection for the Grantee and the Grantor, its officers and employees as otherwise required under this Section. The adequacy of the self-insurance shall be subject to the periodic review and approval of the Grantor. If the Grantee elects to provide self-insurance under this Section, any failure to maintain adequate self-insurance shall be cause for immediate termination of this franchise by the Grantor.

(7) Nothing herein shall be in any way construed as a waiver on behalf of the Grantor of any of the protections or provisions of the Colorado Governmental Immunity Act.

(8) The Grantee shall provide Workers’ Compensation Insurance as required by Colorado law.

(9) The Grantee shall, through contract requirements and other normal means, require any contractor performing work for the Grantee pursuant to this franchise to maintain insurance. The failure of any contractor performing work for the Grantee to maintain insurance coverages in the amounts required by this Section shall not relieve the Grantee of its obligations to the Grantor pursuant to this franchise; rather, the Grantee shall be held specifically liable for any deficits in its contractors’ insurance coverages.

(c) Operating Bond.

(1) Except as expressly provided herein, the Grantee shall not be required to obtain or maintain bonds or other surety as a condition of this franchise. The Grantor acknowledges that at the time of the effective date of this franchise, it has determined the Grantee has the legal, financial and technical qualifications sufficient to comply with the terms of this franchise and the enforcement thereof. The Grantee and the Grantor each recognize that the costs associated with bonds and other surety may ultimately be borne by the subscribers in the form of increased rates for services. In order to minimize such costs, the Grantor agrees to require bonds and other surety only in such amounts and during such times as there is a reasonably demonstrated need therefor.

(2) At intervals no more often than the time of the general performance evaluations to be held at the third and sixth anniversary dates of this franchise as set forth in Subsection 5-4(g), the Grantor shall have the right to review whether a bond should be required of the Grantee, pursuant to a reasonably demonstrated need. The Grantor agrees, however, that in no event shall it require a bond or other related surety in an aggregate amount greater than ten thousand dollars ($10,000.00), conditioned upon the substantial performance of the material terms and conditions of this franchise. In the event the Grantor reasonably determines to require a bond, the Grantor shall give the Grantee at least sixty (60) days’ prior written notice thereof, stating the exact reason for the bond. Such reason must demonstrate either a change in the Grantee’s legal, financial or technical qualifications that would materially prohibit or impair its ability to comply with the terms of the franchise or afford compliance therewith, or a pattern of noncompliance by the Grantee that makes such bond appropriate.

(3) In the event a bond is required during the term of this franchise, the Grantor may take action against the bond, in accordance with Section 5-14 of this Article, for reasons including, but not limited to, the following:

a. Failure of the Grantee to pay the Grantor sums due under the terms of this franchise;

b. Reimbursement of costs borne by the Grantor to correct violations of this franchise not corrected by the Grantee;

c. Monetary remedies, penalties or damages assessed against the Grantee due to default or breach of requirements of this franchise; and

d. Failure to comply with any customer service standards.

(4) Upon the expiration or termination of this franchise, the Grantor agrees to release any bond provided by the Grantee, provided the Grantee is not at that time in default of this franchise. (Ord. 731 § 1, 2004)