(a) To the fullest extent permitted by law, all Permittees shall, at their sole cost and expense, fully indemnify, defend and hold harmless the Village, 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 Village 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 Village 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 Village'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 Village programming.
(3) Arising out of Permittee's failure to comply with the provisions of any federal, state, or local statute, ordinances or regulations applicable to Permittee in its business hereunder.
(b) The foregoing indemnification is conditioned upon the Village:
(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 Committee all pertinent information under the Village's control.
(c) The Village 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 Village by the same attorney would be inconsistent with accepted canons of professional ethics.
(d) Each Permittee shall maintain insurance coverages (or self-insurance coverage by Permittees having capitalization in excess of fifty million dollars ($50,000,000)), as determined by the Village Administrator in accordance with the following:
(1) General Liability Insurance. By its acceptance of any Permit granted hereunder, Permittee specifically agrees that it will maintain throughout the term of the Permit, general liability insurance insuring the Permittee in the minimum of:
A. $1,000,000 per occurrence;
B. $2,000,000 annual aggregate;
C. $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 Permittee shall maintain, and by its acceptance of any 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. $1,000,000 per occurrence; and
B. $1,000,000 excess automobile liability per occurrence.
(3) Worker's Compensation and Employer's Liability Insurance. The Permittee shall maintain and by its acceptance of any Permit granted hereunder specifically agrees that it will maintain throughout the term of the Permit, 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. $1,000,000for employer's liability per occurrence; and
C. $1,000,000 excess employer liability.
(e) The liability insurance policies required by this section shall be maintained by the Permittee throughout the term of the Permit, and such other period of time during which the Permittee is operating without a Permit hereunder, or is engaged in the removal of its telecommunications or utility facilities. Each such insurance policy shall contain the following endorsement:
It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until ninety (90) days after receipt by the Village, by registered mail, of a written notice addressed to the Village Administrator of such intent to cancel or not to renew.
Within sixty (60) days after receipt by the Village of said notice, and in no event later than thirty (30) days prior to said cancellation, the Permittee shall obtain and furnish to the Village replacement insurance policies meeting the requirements of this section.
(f) The Permittee shall provide either a Performance Bond (or self bonding by Permittee having capitalization in excess of Fifty Million Dollars), as determined by the Village Administrator, an Irrevocable Letter of Credit acceptable to the Village, or a Certified Check in an amount determined by the Village Administrator, to pay the cost of restoration of the Right-of-Way should the Permittee fail to perform restoration required by this Chapter or the Permit or to pay for the cost of removal or relocation of the system required by this Chapter should the Permittee fail to perform said removal or relocation.
(g) Any operator who owns or operates small cell facilities or wireless support structures in the Right of Way shall indemnify, protect, defend, and hold the municipal corporation 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 wireless service in the Right of Way, 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 a Right of Way. (Ord. 2018-14. Passed 7-2-19.)