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(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.)
(a) Grantees that intend to discontinue use of and abandon facilities constructed, placed, installed or located in the rights-of-way shall submit a written notice to the City Manager describing the portion of the facilities to be discontinued and abandoned, the plan for removing or securing the same, and the proposed date of abandonment, which date shall not be less than sixty (60) days from the date such notice is submitted to the City Manager. Grantees shall not abandon facilities without such notice. Grantee shall remove or secure such facilities if and as required by the written direction of the City Manager so long as such direction is issued no more than sixty (60) days from the date the notice of discontinuance or abandonment of facilities is submitted to the City Manager.
(b) Should any grantee fail, after notice, to remove or secure the abandoned facilities, the City may, at its option and in addition to the imposition of any penalties or other remedies hereunder, undertake or cause to be undertaken any reasonable action necessary to remove or secure the abandoned facilities. The City shall have no liability for any damage caused by such action and grantee shall be liable to the City for all reasonable costs incurred by the City in taking such action. (Ord. 2008-32. Passed 10-15-08.)
(a) In addition to any other rights set out herein, the City reserves the right to revoke grantee's rights-of-way construction permit in the event grantee violates any material provision of this chapter or its rights-of-way construction permit.
(b) City Manager shall give grantee thirty (30) days prior written notice of an intent to revoke grantee's rights-of-way construction permit. Such notice shall state the reasons for such action. If grantee cures the violation or other cause within the thirty (30) day notice period, or if grantee initiates efforts satisfactory to the City Manager to remedy the stated violation, the City Manager shall rescind said notice of revocation. If grantee does not cure the stated violation or other cause or undertake efforts satisfactory to the City Manager to remedy the stated violation, the City Manager may recommend that grantee's rights-of-way permit be revoked. After granting grantee an opportunity to be heard in person or in writing, the City Manager may revoke the rights-of-way construction permit. Unless otherwise required by law, the decision of the City Manager shall be final.
(Ord. 2008-32. Passed 10-15-08.)
(a) Nothing in this chapter or any rights-of-way construction permit should be construed so as to grant any right or interest in any rights-of-way or public property or place. No approval by the City and no location of any pipe, conduit, duct, pole or structure of grantee in the rights-of-way shall be or give rise to any vested interest or property right in the rights-of-way and such pipe, conduit, duct, pole or structure shall be removed or modified by grantee at its own expense whenever the Director of Engineering Services determines that the public's health, safety or welfare would be enhanced thereby.
(b) Nothing in this chapter or any rights-of-way construction permit shall be construed to prevent the City from constructing, maintaining, repairing or relocating any City utility, including street lighting, communications or like facilities; grading, paving, maintaining, repairing, relocating or altering any street, public property or rights-of-way; or constructing, maintaining, relocating, or repairing any sidewalk or other public work or improvement.
(Ord. 2008-32. Passed 10-15-08.)
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