§ 35.5-9. Security fund/construction bond and insurance requirements.

(a)

Franchise security. No later than the date of the grantee's execution of the acceptance of the franchise, the grantee shall (1) deposit into a bank account, established by the Parish of Jefferson and maintain on deposit through the term of the franchise, the sum of up to one hundred thousand dollars ($100,000.00); or, (2) post a performance bond in accordance with the applicable procedures, in an amount of up to one hundred thousand dollars ($100,000.00); the bond shall contain the following endorsement: "It is hereby understood and agreed that this bond may not be cancelled by the surety nor any intention not to renew be exercised by the surety until sixty (60) days after receipt by the Parish of Jefferson, by registered or certified mail, of written notice of such intent;" or (3) provide such other guaranty, instruments, letter of credit or security, which is acceptable to the grantor. Said franchise security shall be established in an amount of up to one hundred thousand dollars ($100,000.00), unless a different amount is specified in the franchise and have a value sufficient to effectuate the following purposes:

(1)

The faithful performance by the grantee of all the provisions of the franchise; and

(2)

Compliance by grantee with all orders, permits and directions of any agency of the grantor having jurisdiction over grantee's acts or defaults pursuant to this Act; and

(3)

The payment by the grantee of any claims, liens, fees and/or taxes due the grantor which arise by reason of the construction, operation or maintenance of the system.

The maintenance of such security shall be a continuing obligation of grantee until the grantee has satisfied all of its obligations with the grantor that may have arisen from the acceptance of the franchise by the grantee or from its exercise of any privilege or right granted thereby. Posting the security for the franchise does not fulfill the separate requirements for a completion and restoration bond that may be required for the issuance of a utility construction permit for construction related to a franchise.

(b)

Failure to pay. If the grantee: (1) fails to pay to the grantor any fees due and unpaid; or (2) fails, after ten (10) days notice, to repay to the grantor any damages, costs or expenses which the grantor shall be compelled to pay by reason of any act or default of the grantee in connection with the franchise; or (3) fails to pay the grantor any fees due as a result of any transactions which have the effect of circumventing payment of such required fees and/or the evasion of any such payment by non-collection or non-reporting of gross receipts, bartering, or any other means which evades the actual collection of revenues for business pursued by the grantee; or d) fails, after thirty (30) days notice of such failure, to comply with any provisions of the franchise which the grantor reasonably determines can be remedied by any expenditure of security fund; grantor may withdraw from the security fund or demand payment on the bond, guaranty, instrument, letter of credit or security of a sufficient sum in satisfaction of same.

(c)

Restoration of security. Within thirty (30) days after notice to grantee that any amount has been withdrawn by the grantor from the security fund or other franchise security pursuant to this section, the grantee shall deposit a sum of money sufficient to restore such security fund, or otherwise replenish the franchise security in whatever form it was posted, to the original amount.

(d)

Return upon expiration. In the event that the franchise is terminated by reason of default by grantee, to the extent that such default is for non-payment of any amount due and payable pursuant to the franchise, an amount of the security fund equal to the amount of the non-payment shall become the property of the grantor. The grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit at the expiration of the term of the franchise, or upon termination of the franchise at an earlier date, provided that there is then no outstanding default on the part of the grantee.

(e)

Rights of grantor. The rights reserved to the grantor with respect to the security fund are in addition to all other rights of the grantor whether reserved by this article or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the grantor may have.

(f)

Construction bond. Grantor may require a reasonable construction bond from grantee based on the length and type of construction (aerial or underground).

(g)

Hold harmless. The grantee shall hold the grantor harmless for all damages and penalties suffered as a result of, or arising out of, the grantee's negligent use, installation, maintenance, repair and/or operation of a telecommunications system or a telecommunications system providing long distance network service whether or not any act or omission complained of is authorized, allowed, or prohibited by the franchise. This provision is not intended to create liability for the benefit of third parties but is solely for the benefit of the grantor and the grantee. In the event any claim is made against the parish that falls under this, section and a court of competent jurisdiction should adjudge, by final decree, that the grantor is liable therefor, the grantee shall indemnity and hold the grantor harmless of and from any such judgment or liability, including any court costs, expenses, and attorney fees incurred by the grantor in defense thereof. Upon commencement of any proceeding at law or in equity against the grantor relating to or covering any matter covered by this section, wherein the grantee has agreed, by accepting the franchise, to indemnify and hold the grantor harmless, or to pay said final judgment and costs, as the case maybe, the grantor shall give the grantee immediate notice of such suit or proceedings brought in connection therewith, and pay as aforesaid, any final judgment or judgments that may be rendered against the grantor by reason of such damage suit. Upon failure of the grantee to comply with the "defense of suit" provisions of this franchise, after reasonable notice to it by the grantor, the grantor shall have the right to defend the same and in addition to being reimbursed for any such judgment that may be rendered against the grantor, together with all court costs incurred therein; the grantee shall further reimburse the grantor for attorney's fees, including those employed by the grantor in such case or cases, as well as all expenses incurred by the grantor by reason of undertaking the defense of such suit or suits, whether such suit or suits are successfully defended, settled, compromised, or fully adjudicated against the grantor.

(h)

Defense expense. The grantee shall pay all expenses incurred by the grantor in defending itself with regard to all damages and penalties mentioned in subsection (g) above and for all claims against grantor arising out of the franchise. These expenses shall include all reasonable out-of-pocket expenses, such as attorney fees, and shall also include the reasonable value of any services rendered by any employee of the grantor. In the event the grantor is compelled to undertake the defense of ant such suit by reason of the grantee's failure to perform as here and above provided, the grantor shall have the full right and authority to make or enter into any settlement or compromise of such adjudication as the parish attorney shall deem in the best interest of the grantor, this without the prior approval or consent of the grantee with respect to the terms of such compromise or settlement. Grantee need not indemnify, defend or hold grantor harmless for the tortious acts or omissions of the grantor, its officers, agents or employees.

(i)

Liability insurance and indemnification.

(1)

The grantee shall fully indemnify the parish for any damage to parish property as well as damage to third parties that is related in any way to the installation, maintenance or operation of the grantees' franchise or equipment and shall provide at its own expense, proof of the following insurance coverage by insurance companies authorized to do business in the State of Louisiana. With the exception of the Worker's Compensation Insurance policy, Jefferson Parish and its Special Districts, its boards and commissions and its officers, agents and employees, jointly and severally, shall be listed as additional insureds on all of the above insurance policies for the entire period during which the equipment of the grantee remains on the sites related to this permit. All policies shall be endorsed to give the grantor at least thirty (30) days written notice of the intent by either the grantee or the insurer to amend or cancel the police. Insurance shall be placed with insurers with an A.M. Best rating of no less than A:VI. and shall be in the following minimum amounts and in accordance with the following provisions. Certificates of insurance shall state all coverages required by this chapter; see special provisions below regarding self-insured grantees.

a.

Worker's Compensation Insurance: As required by the Louisiana State Statute exception, employer's liability limit shall be one million dollars ($1,000,000.00) per occurrence when work is to be over water and involves maritime exposures, otherwise this limit shall be no less than five hundred thousand dollars ($500,000.00) per occurrence;

b.

Commercial general liability insurance with a combined single limit per occurrence for bodily injury and property damage. This insurance shall include coverage for bodily injury and property damage, and indicate on the following coverages on the certificate of insurance: premises-operations, broad form contractual liability, products and completed operations, use of contractors and subcontractors, personal injury, broad form property damage and explosion, collapse and underground (XCU) claims. Combined single limit (CSL) amount of insurance required and each occurrence/minimum limits shall be one million dollars ($1,000,000.00);

c.

Business automobile liability insurance with a combined single limit of five hundred thousand dollars ($500,000.00) per occurrence for bodily injury and property damage, unless otherwise indicated. This insurance shall include coverage for bodily injury and property damages for any automobiles, whether owned; hired, or non-owned automobiles;

d.

Said policies shall apply as primary insurance and shall stipulate that no other insurance in effect by the parish will be called on to contribute to a loss covered thereunder;

e.

The parish has the right but not the obligation to review and approve all insurance policies and certificates of insurance prior to the issuance of a permit for the requested installation;

f.

An umbrella policy or excess may be used to meet minimum requirements. All property losses to the parish's property for which the grantee is responsible, shall be payable to the parish and adjusted with the Jefferson Parish Risk Management Department;

g.

Should there be a material change in the grantee's insurance policies during the term of the permit, the grantee shall give the parish thirty (30) days notice as to said changes and will submit a replacement certificate of insurance naming the parish as an additional insured;

h.

Failure of the grantee to take out and/or maintain insurance shall not relieve the grantee from any liability under this permit, nor shall the insurance requirements be construed to conflict with the obligations of the grantee concerning indemnification;

i.

The maximum deductible for any of the insurance coverage required under this agreement may not exceed ten thousand dollars ($10,000.00) without prior approval of the Director of Jefferson Parish Department of Risk Management and the Office of the Parish Attorney. All deductibles shall be assumed by the grantee and the grantee's insurers shall have no recourse against the Parish of Jefferson for the payment of any premiums, state insurance assessments or deductibles; these provisions shall be stated on the certificate of insurance. Proof of self-insurance, after approval by the Director of Jefferson Parish Department of Risk Management and the Office of the Parish Attorney, may be accepted in lieu of a certificate of insurance.

(2)

In the event the grantee is insured through a captive insurance company or is self-insured, then in lieu of the certificates of insurance required herein, the grantee shall provide with the permit application, proof that the grantee's self-insurance program is sufficiently liquid to cover all losses in the amounts shown above in this section. The grantee shall immediately notify the parish of all changes in its self-insured status and of any changes in the ability of grantee to cover the losses specified above.

(j)

Costs of auditors and consultants. As necessary to aid in the analysis and/or audit of all matters relative to the franchise, the grantor shall be entitled to employ services of attorneys, auditors and/or consultants. Any and all reasonable costs incurred by the grantor in this regard shall be borne by the grantee in the event that any findings adverse to grantee are uncontested by grantee or are sustained by a final judgment of a court of competent jurisdiction.

(Ord. No. 20914, § 1, 3-15-00; Ord. No. 20991, § 3, 6-28-00; Ord. No. 22754, § 1E, 5-17-06; Ord. No. 22805, § 1, 7-19-06)