Fort Walton Beach Council agenda — 06-14-11 regular — reading text

a. 4. c 7.03 CITY shall have the right to terminate this Agreement upon written notice to TENANT, in the event that: ( a) TENANT shall default in the performance of any of the obligations imposed on it under this Agreement and shall not, after being notified by CITY of the existence of default, promptly take and diligently pursue to completion all reasonable steps to cure the same; ( b) it is found by a court having jurisdiction over the Property that the installation and use constitute a nuisance or hazard to the public or hazard to the occupants of the Fort Walton Beach Golf Club; or c) the use of the equipment interferes with the use of CITY' s equipment machinery, apparatus, or data processing machines at the Fort Walton Beach Golf Club. 7. 04 In the event of termination of this Agreement by TENANT, all rental fees paid prior to said termination date shall be retained by CITY. Ia the a event this Agreement is terminated by CITY during the initial term, the 2 rental fees shall be prorated as of the termination date and the balance of such rental fees shall be returned to TENANT. Eo a 7. 05 If the Golf Club reverter clause is invoked by the U.S. Air Force or v other federal government agency for any reason, this Agreement shall be terminated immediately, and CITY will not be responsible for any costs, a expenses or liabilities incurred by TENANT in construction, operation or d relocation of Monopole and other facilities constructed on the Property. Section 8. INDEMNIFICATION r, 8. 01 General Indemnification: Any provision to the contrary notwithstanding TENANT agrees to indemnify, save and hold harmless CITY, its officers, agents and employees, from any and all claims, damages, liabilities, losses, causes of action of any name whatsoever, which may arise out of in connection with or because of the use and occupancy of the Property by TENANT, TENANT' s sublessee' s or Licensee' s, and TENANT' s officers, agents, employees or independent contractors under this Agreement or the breach of this Agreement by TENANT, except for the direct and proximate negligence or willful misconduct by CITY, its officers, directors, agents, employees and servants. Pursuant to its liability, TENANT shall pay all claims, losses, liens, settlements or judgments, of any nature whatsoever, in connection therewith, including but not limited to, paralegal fees, attorney's fees and costs to defend all claims or suits, including attorney' s fees on appeal, in the name of CITY when applicable, and shall pay all costs and judgments which may issue thereon Such indemnification shall not be limited to the amount of comprehensive general liability insurance which TENANT is required to obtain under this Agreement. Packet Pg. 42  F84. 8.02 Any provision hereof to the contrary notwithstanding, to the extent permitted by law, CITY agrees to hold TENANT, its officers, agents and employees, harmless and indemnify for any and all claims, damages, liability, losses, causes of action of any nature whatsoever, which may arise out of in connection with or because of the use and occupancy of the Property by CITY, CITY' s sublessees or licensees, and CITY' s officers, agents, employees or independent contractors, or the breach ofthis Agreement by CITY, except for the direct and proximate negligence or willful misconduct by TENANT, its officers, directors, agents, employees, and servants, or the negligence or omission by TENANT' s sublessees or Licensees. Pursuant to its liability, CITY shall pay all claims, losses, liens, settlements and judgments in connection therewith, including, but not limited to, attorney fees, paralegal fees and costs to defend all suits, including attorney' s fees on appeal, in the time of TENANT when applicable, and shall pay all costs andjudgmems which may issue thereon. Section 9. INSURANCE 9.01 TENANT shall secure and maintain, at its own expense, and keep in effect during the full term of this Agreement, a policy or policies of insurance, which must include the following coverages and minimum limits of liability specifically reflecting and including coverages for all acts, activities and omissions in any way arising out of the planning or operation of the wireless communication service facilities: 1) Worker's Compensation Insurance, to the extent required by applicable law, for statutory obligations imposed by Worker's Compensation or Occupational Disease Laws, including, where applicable, the United States Longshoremen' s and Harbor Worker's Act, the Federal Employers' Liability Act and the Jones Act. Employer's Liability Insurance shall be provided with a minimum of five hundred thousand and 00 /100 dollars ($ 500, 000. 00) per accident, with one million and 00 /100 dollars ($ 1, 000, 000. 00) aggregate. TENANT agrees to be responsible for the employment, conduct and control of its employees and for any injury sustained by such employees in the course oftheir employment. 2) Comprehensive General Liability (occurrence form) with the following minimum limits of liability with no restrictive endorsements: 1, 000, 000. 00 Combined Single Limit, per occurrence, Bodily Injury & Property Damage Coverage shall specifically include the following with minimum limits not 10 Packet Pg. 43  84. less than those required for Bodily Injury Liability and Property Damage Liability: a) Premises and Operations. b) Independent Contractors. c) Product and Completed Operations Liability. d) Broad Form Property Damage. e) Broad Form Contractual Coverage applicable to this Agreement. 9. 02 UPON CONTRACT EXECUTION, TENANT SHALL SUBMIT TO CITY COPIES OF ITS CERTIFICATE( S) OF INSURANCE EVIDENCING THE REQUIRED COVERAGES AND SPECIFICALLY PROVIDING THAT THE CITY OF FORT WALTON BEACH IS AN ADDITIONAL NAMED INSURED OR ADDITIONAL INSURED WITH RESPECT TO THE REQUIRED COVERAGES AND THE OPERATIONS OF TENANT UNDER THIS AGREEMENT. Insurance companies selected = at be rated at least A- by AM Best. All ofthe policies of insurance so required to be purchased and maintained shall contain a provision or endorsement that the coverage afforded shall not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to CrrY by mail. 9.03 These insurance requirements shall not relieve or limit the liability of TENANT. CITY does not in any way represent that the types and amounts of insurance required hereunder are sufficient or adequate to protect TENANTS interests or liabilities but are merely minimum requirements established by CITY. CITY reserves the right to require any other insurance coverages that CITY reasonably deems necessary depending upon the risk of loss and exposure to liability. 9. 04 If TENANT is self insured and maintains a self insurance - Risk Fund and program which provides for comprehensive general liability, property insurance and worker' s compensation protection, verification of said program shall be submitted to C FY' s Risk Management Specialist upon execution of this Agreement. CITY shall receive a thirty (30) calendar days written notice in the event of any change in the current program having an effect upon the breadth of coverage with respect to limitations and any variance with respect to limits of liability, if less than required under this agreement. 9.05 TENANT shall require each ofits sub -contractors of any tier to maintain the insurance required herein (except as respects limits of coverage for employers and public liability insurance which may not be less than One Million ($1, 000,000) Dollars for each category), and TENANT shall provide verification thereof to CITY upon request. 11 Packet Pg. 44  F84. 9. 06 Each party agrees that all insurance policies with respect to the Property shall preclude any underwriter' s rights of recovery or subrogation against the other party to this Agreement with the express intention of the parties being that the required insurance coverage protects both parties as the primary coverage for any and all losses covered by the above described insurance. 9. 07 TENANT shall ensure that any company issuing insurance to cover the requirements contained in this Agreement agrees that they shall have no recourse against CITY for payment or assessments in any form on any policy of insurance. 9. 08 The clauses " Other Insurance Provisions" and " Insured Duties in the c Event of an Occurrence, Claim or Suit" as it appears in any policy of 2 insurance in which CITY is named as an additional named insured shall not apply to CITY. CITY shall provide written notice of occurrence within fifteen ( 15) working days of CrI Y'S actual notice of such an event. 9. 09 TENANT shall not commence performance of its obligations under fRN this Agreement until after it has obtained all of the minimum insurance o herein described and the same has been approved. v 9. 10 Violation of the terms of Section 9 and its sub -parts shall