(a) To guarantee right-of-way restoration and removal of facilities, the right-of-way permit holder shall provide either a performance bond (or self-bonding by right-of-way permit holders having capitalization in excess of fifty million dollars ($50,000,000), an irrevocable letter of credit, or a certified check to pay the cost of restoration of the right-of-way should the right-of-way permit holder fail to perform restoration required by this chapter, or pay for the cost of removal or relocation of the system required by this chapter should the right-of-way permit holder fail to perform said removal or relocation.
(b) Each permittee shall, as a condition of its right-of-way permit, indemnify, protect and hold harmless the City from any claim, loss or damage arising in any way from the permittee's occupation or use of the right-of-way, including but not limited to the construction, operation or maintenance of permittee's facilities, and from any such permittee's negligent or wrongful act or omission.
(c) Any operator who owns or operates small cell facilities or wireless support structures in the rights-of-way shall indemnify, protect, defend, and hold the City and its elected officials, officers, employees, agents, and volunteers harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees to include reasonable attorney fees and costs of defense, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury or death, property damage or other harm for which recovery of damages is sought, to the extent that it is caused by the negligence of the operator who owns or operates small cell facilities and/or wireless service facilities in the right-of-way, and any agent, officer, director, representative, employee, affiliate, or subcontractor of the operator, or their respective officers, agents, employees, directors, or representatives while installing, repairing, or maintaining facilities in the right-of-way.
(d) To the fullest extent permitted by law, all permittees shall, at their sole cost and expense, fully indemnify, defend and hold harmless the City, its officers, public officials, boards and commissions, agents, and employees from and against any and all lawsuits, claims (including without limitation Worker's Compensation claims against the City or others, causes of actions, actions, liability, and judgments for injury or damages (including but not limited to expenses for reasonable legal fees and disbursements assumed by the City in connection therewith)):
(1) To persons or property, in any way arising out of or through the acts or omissions of permittee, its subcontractors, agents or employees attributable to the occupation by the permittee of the right-of-way; to which permittee's negligence shall in any way contribute; and regardless of whether the City's negligence or the negligence of any other party shall have contributed to such claim, cause of action, judgment, injury or damage.
(2) Arising out of any claim for invasion of the right of privacy; for defamation of any person, firm or corporation; or the violation or infringement of any copyright, trademark, trade name, service mark or patent or any other right of any person, firm and corporation by the permittee, but excluding claims arising out of or related to City programming.
(3) Arising out of permittee's failure to comply with the provisions of any federal, state, or local statute, ordinance or regulation applicable to permittee in its business hereunder.
(e) The foregoing indemnification is conditioned upon the City:
(1) Giving permittee prompt notice of any claim or the commencement of any action, suit or proceeding for which indemnification is sought;
(2) Affording the permittee the opportunity to participate in and fully control any compromise, settlement, or other resolution or disposition of any claim or proceeding subject to indemnification; and
(3) Fully cooperating in the defense of such claim and making available to the permittee all pertinent information under the City's control.
(f) The City shall have the right to employ separate counsel in any such action or proceeding and to participate in the investigation and defense thereof, and the permittee shall pay the reasonable fees and expense of such separate counsel, if employed with the approval and consent of the permittee, or if representation of both permittee and the City by the same attorney would be inconsistent with accepted canons of professional ethics.
(g) The City Does Not Accept Liability. By reason of the acceptance of an application, the grant or issuance of a permit, the City does not assume any liability:
(1) For injuries to persons, damage to property, or loss of service claims; or
(2) For claims or penalties of any sort resulting from the installation, presence, maintenance, or operation of facilities.
(h) Each right-of-way permit holder, as a condition of its permit, shall keep in force a policy or policies of liability insurance, having such terms and in such amounts as are set forth in the Regulations, covering its facilities and operations pursuant to its right-of-way permit.
(i) Each right-of-way permit holder shall maintain insurance coverages (or self-insurance coverage by right-of-way permit holders having capitalization in excess of fifty million dollars ($50,000,000).
(1) General liability insurance. The right-of-way permit holder shall maintain, and by its acceptance of any permit granted hereunder specifically agrees that it will maintain throughout the term of the permit, general liability insurance insuring the right-of-way permit holder in the minimum of:
A. One million dollars ($1,000,000) per occurrence;
B. Two million dollars ($2,000,000) annual aggregate;
C. One million dollars ($1,000,000) excess general liability per occurrence and annual aggregate. Such general liability insurance must be written on a comprehensive coverage form, including the following: premises/operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury.
(2) Automobile liability insurance. The right-of-way permit holder shall maintain, and by its acceptance of any right-of-way permit granted hereunder specifically agrees that it will maintain throughout the term of the permit, automobile liability insurance for owned, non-owned, or rented vehicles in the minimum amount of:
A. One million dollars ($1,000,000) per occurrence; and
B. One million dollars ($1,000,000) excess automobile liability per occurrence.
(3) Worker's Compensation and employer's liability insurance. The right-of-way permit holder shall maintain and by its acceptance of any permit granted hereunder specifically agrees that it will maintain throughout the term of the franchise, Worker's Compensation and employer's liability, valid in the State of Ohio, in the minimum amount of:
A. Statutory limit for Worker's Compensation;
B. One million dollars ($1,000,000) for employer's liability per occurrence; and
C. One million dollars ($1,000,000) excess employer liability.
(j) The liability insurance policies required by this section shall be maintained by the right-of-way permit holder throughout the term of the right-of-way permit, and such other period of time during which the right-of-way permit holder is operating without a right-of-way permit hereunder, or is engaged in the removal of its facilities. Each such insurance policy shall contain the following endorsement: is hereby understood and agreed that insurance policies may not be canceled nor the intention not to renew be stated until 90 days after receipt by the City, by registered mail, of a written notice addressed to the Director of such intent to cancel or not to renew. Within sixty days after receipt by the City of said notice, and in no event later than thirty days prior to said cancellation, the right-of-way permit holder shall obtain and furnish to the City replacement insurance policies meeting the requirements of this Section.
(Ord. 77-99. Passed 1-11-2000; Ord. 43-19. Passed 1-26-21.)