(A) Insurance. Each permittee shall, at all times during the entire term of the ROW use permit, maintain and require each contractor and subcontractor to maintain insurance substantially the same insurance as required of permittee, with a reputable insurance company authorized to do business in the State of Tennessee and which has an A.M. Best rating (or equivalent) no less than "A-" indemnifying the town from and against all claims for injury or damage to persons or property, both real and personal, caused by the construction, installation, operation, maintenance, or removal of permittee's wireless facilities in the ROW. The amounts of such coverage shall be not less than the following:
(3) Worker's compensation in compliance with the statutory requirements of the state(s) of operation and employer's liability insurance - Tennessee with a limit of $1,000,000 each accident/disease/policy limit.
(4) Commercial general liability. Commercial general liability occurrence form, including premises/operations, independent contractor's contractual liability, product/completed operations; X, C, U coverage; and personal and advertising injury coverage, in the amount of $1,000,000 per occurrence for bodily injury and property damage, and $2,000,000 general aggregate.
(5) Commercial automobile liability. Commercial automobile liability coverage for all owned, non-owned, and hired vehicles involved in operations, in the amount of $1,000,000 combined single limit each accident for bodily injury and property damage.
(B) Additional insured. The town shall be included as an additional insured as their interest may appear under this agreement under each of the insurance policies required by this section, except worker's compensation and employer's liability insurance. Upon receipt of notice from its insurer(s) the Permittee shall provide the town with 30 days' advance written notice of cancellation of any required insurance policy. Permittee shall impose similar insurance requirements as identified in this section on its contractors and subcontractors.
(C) Indemnification. Each permittee, its consultant, contractor, and subcontractor, shall, at its sole cost and expense, indemnify, defend and hold harmless the town, its elected and appointed officials, employees, and agents, at all times against any and all claims for personal injury, including death, and property damage arising in whole or in part from, caused by, or connected with any act or omission of the permittee, its officers, agents, employees, or contractors, arising out of, but not limited to, the construction, installation, operation, maintenance, or removal of permittee's wireless system or wireless facilities in the ROW. Each permittee shall defend any actions or proceedings against the town in which it is claimed that personal injury, including death, or property damage was caused by the permittee's construction, installation, operation, maintenance, or removal of permittee's wireless system or wireless facilities in the ROW. The obligation to indemnify, hold harmless, and defend shall include, but not be limited to, the obligation to pay judgments, injuries, liabilities, damages, reasonable attorneys' fees, reasonable expert fees, court costs, and all other reasonable costs of indemnification.
(D) As-built maps. As the town controls and maintains the ROW for the benefit of its citizens, it is the responsibility of the town to ensure that such public ROW meets the highest possible public safety standards. Upon request by the town and within 30 days of such a request, a permittee shall submit to the Town Engineering Department (or shall have otherwise maintained on file with the department) as-built maps and engineering specifications depicting and certifying the location of all its existing small wireless facilities within the ROW, provided in standard electronic or paper format in a manner established by the Town Engineer, or his or her designee. Such maps are, and shall remain confidential documents, and are exempt from public disclosure under the Tennessee Open Records Act (Tenn. Code Ann. §§ 10-7-101 et seq.) to the maximum extent of the law. After submittal of the as-built maps as required under this section, each permittee having small wireless facilities in the town ROW shall update such maps as required under this subchapter upon written request by the town.
(E) Right to inspect. With just and reasonable cause, the town shall have the right to inspect all of the small wireless facilities, including aerial facilities and underground facilities, to ensure general health and safety with respect to such facilities and to determine compliance with the terms of this subchapter and other applicable laws and regulations. Any permittee shall be required to cooperate with all such inspections and to provide reasonable and relevant information requested by the town as part of the inspection.
(F) Proprietary information. If a person considers information it is obligated to provide to the town under this section to be a business or trade secret or otherwise proprietary or confidential in nature and desires to protect the information from disclosure, then the person shall mark such information as proprietary and confidential. Subject to the requirements of the Tennessee Open Records Act (Tenn. Code Ann. §§ 10-7-101, et seq.) as amended, and other applicable law, the town shall exercise reasonable good faith efforts to protect such proprietary and confidential information that is so marked from disclosure to the maximum extent of the law. The town shall provide written notice to the person in the following circumstances: i) if the town receives a request for disclosure of such proprietary and confidential information and the Town Attorney determines that the information is or may be subject to disclosure under applicable law; or ii) if the Town Attorney determines that the information should be disclosed in relation to its enforcement of this subchapter or the exercise of its police or regulatory powers. In the event the person does not obtain a protective order barring disclosure of the information from a court of competent jurisdiction within 30 days following receipt of the town's notice, then the town may disclose the information without further written notice to the person.
(G) Duty to provide information. Within ten days of a written request from the town, a permittee shall furnish the town with information sufficient to demonstrate the following: that the permittee has complied with all requirements of this subchapter; that all fees due to the town in connection with the services provided and wireless facilities installed by the permittee have been properly paid by the permittee; and any other information reasonably required relating to the permittee's obligations pursuant to this subchapter.
(H) No substitute for other required permissions. No small wireless facility application or ROW use permit includes, means, or is in whole or in part a substitute for any other permit or authorization required by the laws and regulations of the town for the privilege of transacting and carrying on a business within the Town or any permit or agreement for occupying any other property of the town.
(I) No waiver. The failure of the town to insist on timely performance or compliance by any permittee holding a ROW use permit shall not constitute a waiver of the town's right to later insist on timely performance or compliance by that permittee or any other permittee holding such ROW use permit. The failure of the town to enforce any provision of this subchapter on any occasion shall not operate as a waiver or estoppel of its right to enforce any provision of this subchapter on any other occasion, nor shall the failure to enforce any prior ordinance or Town Charter provision affecting the ROW, any wireless facilities, or any user or occupant of the ROW act as a waiver or estoppel against enforcement of this subchapter or any other provision of applicable law.
(J) Policies and procedures. The town is authorized to establish such written policies and procedures consistent with this subchapter as the town reasonably deems necessary for the implementation of this subchapter.
(K) Police powers. The town, by granting any permit or taking any other action pursuant to this subchapter, does not waive, reduce, lessen, or impair the lawful police powers vested in the town under applicable federal, state, and local laws and regulations.
(Ord. 2018-03, passed 10-28-19)