§ 78-291. Insurance; surety; indemnification.

(a)

A franchisee shall maintain, and by its acceptance of the franchise specifically agrees that it will maintain, throughout the entire term of the franchise including any renewals thereof, the following liability insurance coverage insuring the city to the extent applicable and the franchisee: worker's compensation and employer liability insurance to meet all requirements of Florida law and commercial general liability insurance with contractual coverage with respect to the construction, operation and maintenance of the cable system, and the conduct of franchisee's business in the city, in the minimum amounts of $1,000,000.00 per occurrence, for bodily injury or death, broad form property damage liability, and insurance to cover infringement of copyrights.

(b)

All insurance policies shall be with insurance companies authorized to do business in the State of Florida and such companies shall have a minimum Best's rating of A-1, or an equivalent rating. The city may require coverage and amounts in excess of the above minimums where necessary to reflect changing liability exposure and limits or where required by law.

(c)

A franchisee shall keep on file with the city certificates of insurance evidencing the above insurance coverage and evidencing that the city, its officers, boards, commission, commissioners, agents and employees are listed as additional insureds on the general liability policy. If a (potential) claim is filed such that the city claims insurance coverage, franchisee shall immediately respond to all reasonable requests by the city for information with respect to the scope of the insurance coverage.

(d)

All general liability insurance policies shall provide that any cancellation or reduction in coverage shall not be effective unless 30 days' prior written notice thereof has been given to the city. A franchisee shall not cancel any required insurance policy without submission of proof that the franchisee has obtained alternative insurance satisfactory to the city which complies with this article.

(e)

A franchisee shall, at its sole cost and expense, indemnify, hold harmless, and defend the city, its officials, boards, commissions, commissioners, agents, and employees, against any and all claims, suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and expenses arising out of the willful or negligent acts or omissions of the franchisee or its officers, agents, employees or contractors relating to construction, maintenance or operation of its cable system, and the conduct of franchisee's business in the city; provided, however, that franchisee's obligation hereunder shall not extend to any claims caused by the willful misconduct or negligence of the city, its officials, boards, commissioners, agents or employees, or to claims arising from franchisee's provision of access channels for public, educational and/or governmental use pursuant to a franchise granted hereunder, to the extent such claims relate to programming and content on such channels, over which franchisee has no editorial control nor exercises administrative control. This provision includes, but is not limited to, the city's reasonable attorneys' fees incurred in defending against any such claim, suit or proceedings, and claims arising out of copyright infringement or a failure by the franchisee to secure consents from the owners, authorized distributors, or providers of programs to be delivered by the cable system, claims arising out of Section 638 of the Communications Act, 47 U.S.C. 558, and claims against the franchisee for invasion of the right of privacy, defamation of any person, firm or corporation, or the violation or infringement of any copyright, trade mark, trade name, service mark or patent, or of any other right of any person, firm or corporation. If any such claim arises, the franchisee shall have the obligation and duty to defend the city and any other indemnified party hereunder; provided, however, franchisee may not agree to any settlement of claims affecting the city without the city attorney's approval. If the city attorney finds that separate representation to fully protect the interests of the city is necessary, franchisee shall consult with the city attorney on counsel that is acceptable to the city attorney. If franchisee is unwilling or unable to select counsel acceptable to the city attorney, whose acceptance shall only be withheld for good cause shown, franchisee shall pay all actual and reasonable expenses incurred by the city in defending itself with regard to any action, suit or proceeding subject to this indemnification. The city's expenses shall include all out of pocket expenses, attorney's fees and costs of the city attorney or assistants, or any city employees, outside attorneys or other agents. Notwithstanding the foregoing, franchisee shall not be required to indemnify the city pursuant to this article or a franchise agreement for actions relating to public, government and education access programming decisions outside of franchisee's control or for the city's use of the cable system or the use of public, government and education access channels, facilities or funding.

(Ord. No. 3806-04, § I, 10-25-2004)