4.20.107.1.1. 
The franchisee hereby agrees to indemnify the city against any and all expenses, taxes, liabilities, and charges of whatever kind or nature that may arise as a result of the activities of the franchisee, whether said liability be tortious, contractual or other. The franchisee also agrees that it will, at its expense, repair or replace, at the city's option, any city property that it may damage or destroy. If the franchisee fails or refuses to repair damaged city property in a timely manner, the city may effect repairs through other means and impose the costs of the repairs on the franchisee.
4.20.107.1.2. 
A franchisee by executing a franchise agreement shall protect, indemnify and hold harmless the city, its officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees against and from any and all alleged claims, demands, actions, suits, liabilities and judgments of every kind and nature and regardless of the merit of the same, arising out of or related to, and to the extent proximately caused by, the acts or omissions of the franchisee, its employees, contractors, volunteers or agents.
4.20.107.1.3. 
This indemnification shall include, without affecting the scope of the foregoing, and without being limited to the following: alleged claims, demands, actions, suits, liabilities and judgments arising in tort, contracts, infringements of constitutional rights, unfair competition, any infringement or violation, or alleged infringement or violation, of any copyright, whether common law or statutory, violations of statutes, ordinances or regulations, or failure of franchisee to secure consents from owners, authorizing distributors or licensees of programs to be delivered by franchisee's cable system.
4.20.107.1.4. 
The city shall make reasonable efforts to provide a franchisee with written notice within ten (10), but within not later than fifteen (15), days after being served with any lawsuit for which indemnification may be sought under this section.
4.20.107.1.5. 
The expiration or termination of a franchise agreement shall not relieve or exonerate the franchisee from its obligations to indemnify and defend the city pursuant to this Section 4.20.107.1 and Section 4.20.107.2, such obligations survive the expiration or termination of such franchise agreement as to acts, errors, or omissions of the franchisee occurring prior to such expiration or termination.
(Ord. 205 § 3, 2001)
4.20.107.2.1. 
Franchisee shall, upon demand of the city, or any other such indemnitee, appear in and defend the city, its officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees against and from any and all alleged claims, demands, actions, suits, or other legal proceedings, whether judicial, quasi-judicial, administrative or otherwise, of every kind and nature and regardless of the merit of the same (collectively, "Liabilities"), arising out of or related to and to the extent proximately caused by the acts or omissions of the franchisee, its employees, contractors, volunteers or agents, regardless of any claimed or actual negligence or conduct of the city or any such indemnitee. The foregoing duty does not extend to liabilities based on the city's sole negligence, as finally adjudicated.
4.20.107.2.2. 
Where franchisee has assumed the defense in any such proceeding, it may control the proceedings at issue, and the city may participate in such proceedings with counsel of its own choosing. The city will be responsible for all costs and expenses of such counsel, as well as for the city's accounting fees, expert witness or consultant fees, court costs, per diem expenses, and travel and living expenses.
4.20.107.2.3. 
Should the franchisee fail to undertake the defense of such claim following demand of the city or any other such indemnitee, the city may undertake the defense of such claim, in which case the franchisee shall reimburse the city and any other indemnitee for any costs and expenses incurred in defending against such claim or demand or action, including any attorneys' fees, accountant fees, expert witness or consultant fees, court costs, per diem expenses, and travel and living expenses. The foregoing obligations shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other security required hereunder.
4.20.107.2.4. 
The franchisee may settle, compromise, adjust or otherwise dispose of any such claim, provided that the franchisee shall not settle, compromise, adjust or dispose of any such claim which would impose any obligation upon the city, its officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees without the city's prior written consent, which consent shall not be unreasonably withheld.
4.20.107.2.5. 
Should the franchisee fail to defend any such claim, the city may settle, compromise, adjust or otherwise dispose of such claim on such terms as it may deem appropriate. The franchisee shall promptly reimburse the city for the amount of all settlement payments and expenses, legal and otherwise, incurred by the city in connection with the defense or settlement of such claim. If no settlement of such claim is made, then the franchisee shall satisfy any judgment rendered with respect to such claim before the city is required to do so, and pay all expense, legal or otherwise, incurred by the city in the defense of such claim.
4.20.107.2.6. 
Except as specifically set forth above, the city shall not have the right to settle, compromise, adjust or dispose of any claim without the approval of the franchisee, provided that if the franchisee disapproves of such settlement, then it must assume the defense of such claim and reimburse the city for all expenses of the city to the date of assumption.
4.20.107.2.7. 
If the city enters into any settlement, compromise, adjustment or other disposition of a claim for which indemnification is sought under the provisions of this section and the franchisee has not provided its approval of such settlement, the franchisee will be discharged from its obligations of indemnification under this section.
4.20.107.2.8. 
The party proposing a settlement, compromise, adjustment or other disposition of a claim shall give the other party ten days prior written notice of the proposed settlement, compromise, adjustment or other disposition for which indemnification is sought by the city under the provisions of this section. The party to whom such notice is given shall be required to accept, reject or modify the proposed settlement within such ten day period.
4.20.107.2.9. 
If the city has assumed its own defense in any action in which the city and the franchisee are co-defendants, then the franchisee shall reimburse the city, from the proceeds of any damage award received by the franchisee and after franchisee's deduction therefrom of franchisee's legal costs and expenses with respect to such action, for the attorneys' fees, costs and other litigation expenses incurred by the city in its self-defense.
(Ord. 205 § 3, 2001)
4.20.107.3.1. 
Within twenty (20) calendar days after receiving notice of award of a cable service provider franchise agreement or notice of renewal of a cable service provider franchise insurance policies. The franchisee shall procure and maintain during the entire period of the minimum insurance coverage's:
Type of insurance
 
 
 
Comprehensive general liability
Per person: $1,000,000
Per accident: $3,000,000
Property: $1,000,000
Auto liability
$1,000,000 per occurrence
Workers’ compensation
As required by state law
Other
As required by state law
Umbrella liability
$5,000,000
4.20.107.3.2. 
The cable administrator shall be noted on the endorsements and shall receive revised copies as available as well as thirty (30) day minimum advance written notice from the insurance carrier regarding any intent to cancel or materially change terms or coverage. Policies shall be "occurrence," not "claims made" type and shall be non-contributing with any insurance the city may elect to obtain. Coverage shall be obtained from carriers admitted to do business in California and holding a current best's rating of A+ VII or better. Failure to maintain the required insurance or to comply with the requirements of this section shall be a violation of the ordinance codified in this title and subject the franchise agreement to termination. In addition to the right to terminate a franchise agreement for failure to maintain the required insurance, the city shall have the right to purchase insurance, sufficient to meet the requirements of this section. The franchisee shall be responsible for reimbursing the city the cost of the insurance and any additional administrative costs.
(Ord. 205 § 3, 2001)
Upon acceptance of a franchise, the franchisee shall file with the cable administrator and shall thereafter during the entire term of such franchise maintain in full force and effect at its own expense an insurance policy or policies which shall insure franchisee and provide primary coverage for the city, its officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees, against loss or liability for personal injury, death, property damage (both automobile and non-automobile cause), or other damages. Such policy or policies shall include insurance against damages from copyright infringement (common law or statutory) and a failure of franchisee to secure trademark rights, occasioned by any activity or operation of franchisee under a cable service provider franchise, and regardless of any claimed or actual activities of the city, its officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees. The city may waive the requirement for insurance from one or more perils mentioned in the last preceding sentence upon a finding that such insurance cannot be procured or cannot be procured at a reasonable cost, and in connection therewith may reduce the otherwise required limits on coverage hereafter set forth. However, if such insurance cannot be procured, the franchisee’s insurance broker or agent must document its unavailability by showing a good faith effort to obtain such insurance. Such policy shall contain a cross-liability endorsement. Such policy or policies shall be issued by a company authorized to transact insurance business in the state of California and shall have a rating of “A+ VII” or better as set forth in the most current edition of “Bests Insurance Guide,” with minimum limits of coverage in the amounts set forth in Section 4.20.107.3.1, for bodily injury and property damage, including coverage for comprehensive general liability, contractual liability, owned automobiles, non-owned automobiles, and for-hire automobiles. Such limits of coverage may be subject to reasonable deductibles.
The policy or policies shall name the city, its officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees as additional insurers and contain a provision that a written notice of any cancellation or modification that relates to a diminution in the scope of coverage under this section or reduction in the limits of coverage of said policy shall be delivered to the cable administrator thirty (30) days in advance of the effective date thereof. The franchisee shall provide the cable administrator with certificates of insurance and any and all amendments thereto, including, but not limited to, all endorsements, exclusions and provisos. The cable administrator shall review such certificates of insurance and shall approve the same if the terms and conditions of the insurance represented thereby are consistent with the requirements of this section. If any such certificates of insurance and amendments, endorsements, exclusions and provisos thereto fall to evidence the coverage required under this section, the franchisee shall take such action as shall be necessary to secure such coverage within ten business days following receipt of notice thereof from the city. The city reserves the right to reject a specific policy if its terms, definitions and exclusions prohibit or diminish coverage and liability as required by the ordinance codified in this title.
(Ord. 205 § 3, 2001)
Upon acceptance of a franchise, and annually thereafter, a franchisee shall provide the cable administrator with evidence that it has in effect employer liability insurance or workers’ compensation coverage and/or has undertaken self-insurance in accordance with the provisions of applicable state law and is maintaining a policy or policies of employers’ liability insurance with no less than the legal minimum limits.
(Ord. 205 § 3, 2001)
The city may review the insurance required herein during the term of the franchisee’s franchise and, based upon any material adverse changes in liability exposure or legal requirements, reserves the right at any time during the term of a franchise agreement to reasonably change, by increasing or decreasing, the amounts and types of insurance required thereunder by giving a franchisee ninety (90) days written notice.
(Ord. 205 § 3, 2001)
A franchisee’s failure to procure or maintain required insurance shall constitute a material breach of the ordinance codified in this title and a franchise agreement. Under such a circumstance, the city may, at its discretion, procure or renew such insurance to protect the city’s interests and pay any and all premiums in connection therewith and recover all moneys so paid from the franchisee, and assess liquidated damages for such a material breach and/or seek revocation or termination of the franchisee’s franchise.
(Ord. 205 § 3, 2001)
4.20.107.8.1. 
Franchisee's insurance coverage shall be primary with respect to city, its officers, boards and board members, commissions and commission members, agents, consultants, volunteers, and employees. Any insurance or self-insurance maintained by the city shall apply in excess of and not contributory with insurance provided by franchisee's policy.
4.20.107.8.2. 
Insurers shall have no right of recovery or subrogation against city except in matters of sole negligence on the part of the city, as finally adjudicated, (including its officers, boards and board members, commissions and commission members, employees, volunteers, and other agents and agencies); it shall be the intention of the city and the franchisee that the insurance policies so effected shall protect both parties and be primary coverage for any and all loss covered by the above-described insurance.
4.20.107.8.3. 
The insurance company issuing the policy or policies shall have no recourse against the city for payment of any premiums or for assessments under any form of policy.
4.20.107.8.4. 
Any and all deductibles in the above-described insurance policies shall be assumed by and be for the account of, and at the sole risk of, franchisee.
4.20.107.8.5. 
Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the city, its officers, boards and board members, commissions and commission members, employees, consultants, agents, or volunteers.
4.20.107.8.6. 
The limits of liabilities of the insurance policies set forth in Section 4.20.107.3.1 shall not define or limit the franchisee's defense and indemnification obligations under the ordinance codified in this title or otherwise arising as a matter of law or equity.
(Ord. 205 § 3, 2001)
4.20.107.9.1. 
The ordinance codified in this title and all franchise agreements are governed by the laws of the state of California, without regard to its conflicts of laws principles, except to the extent that California law is preempted by federal statutes or regulations.
4.20.107.9.2. 
Any action or proceeding instituted by any franchisee against the city shall be instituted and prosecuted in the appropriate state court for the county of San Bernardino, California. By its acceptance of a franchise agreement and performance thereunder, a franchisee will be deemed to have waived the benefit of any statute or judicial decision (whether of federal or state origin) providing for a change of venue to either another state court or federal district court. The foregoing waiver includes, without implied limitation, any benefits provided to the franchisee pursuant to California Code of Civil Procedure Section 394 and all other federal or state statutes of similar effect, including, without implied limitation, any federal statute providing for federal district court jurisdiction due the diversity of citizenship between the city and any franchisee, or due to the fact that a question of federal law is alleged or involved.
(Ord. 205 § 3, 2001)