§ 30-64. General financial provisions.

(a)

Compensation. All franchises granted or authorized pursuant to this Act shall provide compensation to the grantor in an amount of $300.00 per wireless facility per year on a city-owned asset or co-located upon an asset owned by a public utility or communication provider operating pursuant to a franchise from the City of New Orleans. The annual franchise fee shall be payable in quarterly installments.

(b)

Nature of franchise fee. The compensation and other payments to be made pursuant to the franchise are in addition to any and all taxes and fees or charges which the grantee or any affiliated person shall be required to pay to the grantor or to any other governmental authority. Neither the grantee nor any affiliated person shall have or make any claim for any deduction or other credit of all or any part of the amount of compensation or other payments made pursuant to the franchise against any other fees or charges, including ad valorem taxes and/or any taxes which the grantee or any affiliated person is required to pay to the grantor.

(c)

Failure to pay. If the grantee:

(1)

Fails to pay to the grantor any fees due and unpaid for 30 days after notice of nonpayment; or

(2)

Fails, after 30 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;

(3)

Fails, after 60 days' notice of such failure, to comply with any provision of the franchise which the grantor reasonably determines can be remedied by an expenditure of the security fund;

Then the grantee shall have committed a material violation of the franchise and in that event the grantor may immediately withdraw the amount thereof from the security fund. Upon such withdrawal, the grantor shall notify the grantee of the amount and date thereof.

(d)

Security fund.

(1)

Fund deposit. Within 30 days after the effective date of the franchise, the grantee shall either, at grantee's option, (i) deposit into a bank account, established by the city and maintained on deposit through the term of the franchise, the sum of up to $50,000.00, or, (ii) post a performance bond in accordance with the applicable city procedures or a letter of credit in an amount of up to $50,000.00, unless a different amount is specified in the franchise, (provided that grantor shall deliver notice of intent to draw on the security fund at least ten days prior to the actual date of the draw request) as security for:

a.

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

b.

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

c.

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 wireless services; or

d.

The failure of grantee to remove the equipment related to the wireless services after expiration or termination of the franchise.

The maintenance of such bank account, performance bond, letter of credit or such other instrument, security or guaranty acceptable to the grantor 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. It is the intent of grantor that the security fund be established in an amount or have a value sufficient to effectuate the purposes set forth in subsections a., b., and c. above. Any and all interest on the security fund shall be payable to the grantee upon the withdrawal of the security fund at the expiration or termination of the franchise.

(e)

Metered rate. Grantee shall obtain separate electric service or separately meter or sub-meter electric service for all proposed site locations requiring electric/energy consumption for all wireless facilities, including wireless radio, antenna, or other comparable equipment. All electric charges, fees, and bills for grantee's electric/energy consumption shall be billed directly to grantee and made payable to the electric utility company for Orleans Parish.

(f)

Damages and defense.

(1)

Hold harmless. The grantee shall hold the city 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 the wireless facilities authorized 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 city and the grantee.

a.

Grantee shall indemnify. In the event any claim is made against the city that falls under this indemnity and a court of competent jurisdiction should adjudge, by final decree, that the city is liable therefor, the grantee shall indemnify and hold the city harmless of and from any such judgment or liability, including any court costs, expenses, and attorney fees incurred by the city in defense thereof, to the extent of grantee's indemnity obligation set forth in subsection (1) above.

b.

Notice of legal proceedings. Upon commencement of any proceeding at law or in equity against the city relating to or covering any matter covered by this indemnity, where the grantee has agreed, by accepting the franchise, to indemnify and hold the city harmless, or to pay such final judgment and costs, as the case may be, the city shall give the grantee immediate notice of such suit or proceeding. The grantee shall provide a defense to any such suit or suits, including any appellate proceedings brought in connection therewith, and pay as aforesaid, any final judgment or judgments that may be rendered against the city by reason of such damage suit.

c.

Legal expenses. Upon failure of the grantee to comply with the "defense of suit" provisions of this Act, after reasonable notice to it by the city, the city 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 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 city.

(2)

Defense expense. The grantee shall pay all expenses incurred by the city in defending itself with regard to all damages and penalties mentioned in subsection (1) above and for all claims against city arising out of the franchise. These expenses shall include all out-of-pocket expenses, such as attorney fees, and shall also include the reasonable value of any services rendered by any employees of the city via the grantor. In the event the city is compelled to undertake the defense of any such suit by reason of the grantee's failure to perform as here and above provided, the city shall have the full right and authority to make or enter into any settlement or compromise of such adjudication as the city council shall deem in the best interest of the city, this without the prior approval or consent of the grantee with respect to the terms of such compromise or settlement.

(g)

Insurance.

(1)

Except as provided in subsection (3) below, the grantee shall maintain in full force and effect, at its own cost and expense, commercial general liability insurance (CGL) covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits of $1,000,000.00 per occurrence, and $2,000,000.00 in the aggregate.

In addition, the grantee shall obtain worker's compensation coverage for work done under the franchise and as required by the State of Louisiana, with statutory limits, and employer's liability insurance with a limit of $1,000,000.00 per accident for bodily injury or disease, policy limit.

(2)

Grantee shall provide the director and the grantor's risk manager with a certificate of insurance including the grantor, the City of New Orleans, its departments, political subdivisions, officers, officials, employees, and volunteers as an additional insured as their interest may appear under this Act on each policy (except workers compensation and employer's liability) and extension or renewal thereof. Grantee shall maintain on file with the director and grantor's risk manager a current certificate of insurance certifying the coverage required. The certificate of insurance shall be subject to the approval as to form by the grantor's risk manager. Upon receipt of notice from its insurer(s), grantee shall provide at least 30 days' prior written notice to grantor of such cancellation of required coverage that is not replaced.

(3)

In the event grantee is self-insured as to any required coverage, then in lieu of the certificate of insurance required herein, grantee shall provide grantor upon the effective date of the franchise, proof that grantee's self-insurance program is sufficiently liquid or that grantee or its parent company has sufficient net worth to cover all losses in the amount shown in subsection (1) above. Grantee shall immediately notify grantor of any change in its self-insured status as to any coverage required hereunder, and of any change in the ability of grantee to cover the losses specified in subsection (1) above.

(4)

Grantee shall, at its own expense, maintain in full force and effect throughout the duration of the franchise, a liability insurance policy or policies underwritten by a carrier rated by A.M. Best's as A- or better and authorized to do business in the state, and upon prior notice and at reasonable times, a copy of such policy or policies shall be available for review by grantor at the offices of grantee. Such policy or policies, with the exception of workers compensation and employer's liability policy, shall name the city, including its boards and commissions and its officers, agents and employees, jointly and severally, as additional insureds as their interest may appear under this Act. Such policy or policies shall apply as primary insurance and shall stipulate that no other insurance in effect by the city will be called on to contribute to a loss covered hereunder and shall provide for a waiver of subrogation. Upon the effective date of the franchise, the grantee shall furnish proof to the grantor that satisfactory insurance policies have been obtained. A copy of the certificate of insurance shall be on file with the department of safety and permits and maintained current at all times.

(h)

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 an auditor and/or consultant. Any and all reasonable costs incurred by the grantor in this regard shall be borne by the grantee if any violations of its franchise or this Act are identified in such audit, analysis or consult, as provided in sections 30-65.2(h)(5), 30-65.4(f), and 30-65.13(d).

(M.C.S., Ord. No. 27999, § 1, 3-14-19)