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(a) Grantee shall at all times employ ordinary care and shall construct, install, place, locate and maintain its facilities using commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public.
(b) Grantee shall construct, install, place, locate and maintain its facilities in such manner that they will not interfere with any installations of the City or other grantees, and in accordance with good engineering practices and, where applicable, the requirements of the National Electrical Safety Code, the rules and regulations of the Public Utilities Commission of Ohio, the Federal Energy Regulatory Commission, and all applicable ordinances and regulations of the City affecting electrical and structural installations which may currently be in effect or changed by future ordinances, and all other applicable state or federal construction and safety requirements.
(c) Grantee's facilities in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of the City, wherever situated or located, shall at all times be kept and maintained in a safe, suitable, substantial condition, and in good order and repair.
(d) Grantee shall at all times maintain a force of available employees or agents sufficient to provide safe, adequate, and prompt maintenance and repair of its facilities. Such employees or agents shall perform all work, construction, maintenance or removal of structures and facilities within the rights-of-way, including tree trimming, in accordance with good engineering, construction and safety practices, including any applicable safety codes.
(e) Grantee shall register, or cause to be registered, its facilities with the Ohio Utility Protection Service or any successor thereto.
(f) Grantee shall cooperate with the City in any emergencies involving the rights-of- way.
(g) Grantee shall field identify, using distinct identification, its facilities constructed, installed, placed or located in rights-of-way. Such identification shall be consistent with industry standards for such identification.
(h) Grantee shall designate a single point of contact for reporting of emergencies and conditions affecting the safety of the public. (Ord. 2008-32. Passed 10-15-08.)
(a) Grantee shall, at its sole cost and expense, fully defend, indemnify and hold harmless the City, its officers, boards, commissions, agents and employees, against and from any and all claims, demands, causes of actions, suits, proceedings, damages, liabilities, penalties and judgements of every kind arising out of or pertaining to the City’s granting a rights-of-way construction permit to grantee and/or the construction, maintenance or operation of grantee’s facilities including, but not limited to, damages for injury or death, or damages to property, real or personal, and against all liabilities to others and against all loss, cost and expense, resulting or arising out of any of the same.
(b) Grantee shall pay all expenses incurred by the City in defending itself with regard to the claims, causes of action, suits, proceedings, damages, liabilities, penalties and judgments mentioned in subsection (a) above. These expenses shall include but are not limited to all out-of- pocket expenses, such as attorney’s fees, and shall also include the reasonable value of any services rendered by the City’s Law Director or his assistants, or any employees of the City.
(c) For the City to assert its rights to be defended, indemnified and held harmless, the City must:
(1) Notify grantee of any claim or legal proceeding which gives rise to such right;
(2) Afford grantee the opportunity to participate in any compromise, settlement, resolution or disposition of such claim or proceeding; and
(3) Cooperate in the defense of such claim and make available to grantee all such information under its control reasonably relating thereto.
(Ord. 2008-32. Passed 10-15-08.)
(a) Except as expressly provided in this chapter, grantee shall have no recourse whatsoever against the City for any loss, cost or expense, or damages arising out of the provisions or requirements of this chapter or the rights-of-way construction permit, or because of the enforcement thereof by the City, or for the failure of the City to have the authority to grant all or any part of the rights-of-way construction permit.
(b) Grantee shall acknowledge, upon executing and accepting a rights-of-way construction permit, that it does so relying upon its own investigation and understanding of the power and authority of the City to grant such a permit.
(c) Grantee shall further acknowledge, upon executing the rights-of-way construction permit, that it has carefully read the terms and conditions of this chapter and the form of the rights-of-way construction permit, and grantee is willing to and does accept all of the risks of the meaning of the terms and conditions contained therein, and agrees that in the event of any ambiguity or in the event of any other dispute over the meaning thereof, the same shall be construed strictly against grantee and in favor of the City.
(Ord. 2008-32. Passed 10-15-08.)
(a) Grantee shall maintain, throughout the period of construction and for so long as the facilities constructed, placed, installed or located occupy the rights-of-way or other public place, liability insurance insuring the City and the grantee with regard to all damages as follows:
(1) One million dollars ($1,000,000) for bodily injury or death to any one person;
(2) Three million dollars ($3,000,000) for bodily injury or death resulting from any one accident or occurrence;
(3) Five hundred thousand dollars ($500,000) for property damage to any single property; and
(4) Three million dollars ($3,000,000) for excess liability or umbrella coverage.
(b) Grantee shall furnish to the City certificates of insurance evidencing grantee's compliance with this section. All insurance required by this chapter shall be and remain in full force and effect for the entire term of this chapter. Such insurance, if canceled for any reason, shall immediately be put back in force subject to the terms and requirements specified herein.
(c) Any insurance policy obtained by the grantee to comply with this section must be approved by the City's Law Director, which approval shall not be unreasonably withheld, and a certificate of insurance and a duplicate copy of said insurance policy, along with written evidence of payment of required premiums, shall be filed and maintained with the Clerk of Council during the term of this chapter. Such insurance may be changed from time to time to reflect changing liability limits as may be reasonably requested by the City, but not below the minimum established herein. Grantee shall immediately notify the City in writing of any litigation that may develop that would affect the insurance required herein.
(d) Upon acceptance of the rights-of-way construction permit, grantee shall deposit with the City a surety bond in the amount of fifty thousand dollars ($50,000) in a form reasonably acceptable to the City's Law Director; provided, however, that the City Manager, in its sole discretion, may waive, reduce the amount of the bond or require an additional amount to be so bonded. The performance bond shall be available to insure the faithful performance by grantee of all provisions of the rights-of-way construction permit. The performance bond shall be maintained at fifty thousand dollars ($50,000) during the entire term of this chapter, regardless of withdrawals which may be made under this section. The performance bond shall be conditioned upon and insure the faithful performance of grantee of all terms and conditions of the rights-of-way construction permit and the payment by grantee of any claim, liens, costs, expenses and taxes due the City which arise by reason of the construction, repair or maintenance of grantee’s facilities in the rights-of-way or other public place. The rights reserved to the City with respect to the performance bond are in addition to all other rights the City may have under this chapter or any law. The company providing such bond must be licensed to do business in the State of Ohio. In the event of a default by grantee in any of its obligations under the rights-of-way construction permit which default is not cured within ten (10) days after notice by the City to grantee of such default (or such longer time as it is necessary to cure, so long as grantee commences to cure within ten (10) days and diligently pursues cure), the City may levy on the performance bond upon notifying grantee of the amount of such charge. Grantee may contest in good faith any dispute with respect to any levy by the City on the performance bond. The rights reserved to the City with respect to the performance bond are in addition to all other rights of the City, at law or in equity. The performance bond provided hereunder shall contain the following endorsement:
“It is hereby understood and agreed that this bond may not be canceled without thirty (30) days advance written notice to the City of Canfield, Ohio.”
(e) Upon written request of the grantee, and upon approval of the City Manager, grantees who maintain a net book value in excess of fifty million dollars ($50,000,000) may self- insure and self-bond in lieu of maintaining and providing the policies of insurance and bonds described above. Such grantees shall provide to the City Manager such certificates or other documents attesting to such book value, insurance and bonding as the City Manager may reasonably request. (Ord. 2008-32. Passed 10-15-08.)
All notices or demands required to be given under the rights-of-way construction permit or this chapter shall be deemed to be given when delivered personally or upon the date actually received as evidenced by certified mail, return receipt requested. All notices to the City shall be addressed to the City Manager at the offices of the City. All notices to the grantee may be made and shall be in effect upon delivery to the party named in the rights-of-way construction permit or the party's successor. (Ord. 2008-32. Passed 10-15-08.)
If any term, condition or section of this chapter or a rights-of-way construction permit or the application thereof to any person or circumstance shall, to any extent, be held to be invalid or unenforceable, the remainder hereof and the application of such term, condition or section to persons or circumstances other than those as to whom it shall be held invalid or unenforceable shall not be affected thereby, and this chapter and all the terms, conditions and sections hereof shall, in all other respects, continue to be effective and to be complied with.
(Ord. 2008-32. Passed 10-15-08.)
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