Loading...
(a) Indemnity. Permittee shall defend, indemnify, protect, and hold harmless municipality, its officers, agents, employees, elected and appointed officials, departments, boards, and commissions from any and all claims, losses, liabilities, causes of action, demands, judgments, decrees, proceedings, and expenses of any nature (collectively “claims”) (including, without limitation, attorneys’ fees) arising out of or resulting from the acts or omissions of permittee, its officers, agents, employees, contractors, successors, or assigns, but only to the extent such acts or omissions are related to permittee’s use of or installation of facilities in the public right-of-way and only to the extent of the fault or responsibility of permittee, its officers, agents, employees, contractors, successors and assigns.
(b) Notice, cooperation. Municipality shall notify permittee promptly in writing of any such claims and the method and means proposed by municipality for defending or satisfying any such claims. Municipality shall cooperate with permittee in every reasonable way to facilitate the defense of any such claims. Municipality shall consult with permittee respecting the defense and satisfaction of such claims, including the selection and direction of legal counsel.
(c) Settlement. Municipality shall not settle any claim subject to indemnification under the preceding two sections without the advance written consent of permittee, which consent shall not be unreasonably withheld. Permittee shall have the right to defend or settle, at its own expense, any claim against municipality for which permittee is responsible hereunder.
(Ord. 3760, passed 11-23-2009)
(a) Coverage required. Prior to beginning any construction in or installation of permittee’s facilities in the public right-of-way, permittee shall obtain insurance as set forth below and file certificates evidencing same with municipality. Such insurance shall be maintained in full force and effect until the end of the term of its franchise agreement or preexisting agreement (whichever is then in effect). In the alternative, permittee may satisfy this requirement through a program of self-insurance, acceptable to municipality, by providing reasonable evidence of its financial resources to municipality. Municipality’s acceptance of such self-insurance shall not be unreasonably withheld.
(1) Commercial general liability insurance, including completed operations liability, independent contractors liability, contractual liability coverage, railroad protective coverage and coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage, in an amount not less than five million dollars ($5,000,000.00).
(2) Liability insurance for sudden and accidental environmental contamination with minimum limits of five hundred thousand dollars ($500,000.00) and providing coverage for claims discovered within three (3) years after the term of the policy. Pursuant to the 2006 MPSC decision in case U-14720, permittee need not comply with the preceding sentence until such time after the effective date of this ordinance that it decides to place any new or existing facilities underground within the public right-of-way in municipality.
(3) Automobile liability insurance in an amount not less than one million dollars ($1,000,000.00).
(4) Workers’ compensation and employer’s liability insurance with statutory limits, and any applicable Federal insurance of a similar nature.
(5) The coverage amounts set forth above may be met by a combination of underlying (primary) and umbrella policies so long as in combination the limits equal or exceed those stated. If more than one insurance policy is purchased to provide the coverage amounts set forth above, then all policies providing coverage limits excess to the primary policy shall provide drop down coverage to the first dollar of coverage and other contractual obligations of the primary policy, should the primary policy carrier not be able to perform any of its contractual obligations or not be collectible for any of its coverages for any reason during the term of the franchise agreement or preexisting agreement (whichever is then in effect), or (when longer) for as long as coverage could have been available pursuant to the terms and conditions of the primary policy.
(b) Additional insured. Municipality shall be named as an additional insured on all policies (other than worker’s compensation and employer’s liability). All insurance policies shall provide that they shall not be canceled, modified or not renewed unless the insurance carrier provides thirty (30) days prior written notice to municipality. Permittee shall annually provide municipality with a certificate of insurance evidencing such coverage. All insurance policies (other than environmental contamination, workers’ compensation and employer’s liability insurance) shall be written on an occurrence basis and not on a claims- made basis.
(c) Qualified insurers. All insurance shall be issued by insurance carriers licensed to do business by the State of Michigan or by surplus line carriers on the Michigan Insurance Commission approved list of companies qualified to do business in Michigan. All insurance and surplus line carriers shall be rated A+ or better by A.M. Best Company.
(d) Deductibles. If the insurance policies required by this ordinance are written with retainages or deductibles in excess of $50,000.00, they shall be approved by Manager in advance in writing. Permittee shall indemnify and save harmless municipality from and against the payment of any deductible and from the payment of any premium on any insurance policy required to be furnished hereunder.
(e) Contractors. Permittee’s contractors and subcontractors working in the public right-of-way shall carry in full force and effect commercial general liability, environmental contamination liability, automobile liability and workers’ compensation and employer liability insurance which complies with all terms of this section. In the alternative, permittee, at its expense, may provide such coverages for any or all its contractors or subcontractors (such as by adding them to permittee’s policies).
(f) Insurance primary. Permittee’s insurance coverage shall be primary insurance with respect to municipality, its officers, agents, employees, elected and appointed officials, departments, boards and commissions (collectively “them”). Any insurance or self-insurance maintained by any of them shall be in excess of permittee’s insurance and shall not contribute to it (where “insurance or self-insurance maintained by any of them” includes any contract or agreement providing any type of indemnification or defense obligation provided to, or for the benefit of them, from any source, and includes any self-insurance program or policy, or self-insured retention or deductible by, for or on behalf of them).
(Ord. 3760, passed 11-23-2009)
Statutory reference:
MPSC Order of February 21, 2006 in re: Case No. U-14720
Municipal requirement: Municipality may require permittee to post a bond (or letter of credit), in the amount provided in Section 15(3) of the Metro Act, as amended, MCLA § 484.3115(3) (Note: Does not apply after December 3, 2015).
(Ord. 3760, passed 11-23-2009)
(a) Removal; underground. As soon as practicable after the later of the term of its franchise agreement or preexisting agreement expires, permittee or its successors and assigns shall remove any underground cable or other portions of permittee’s facilities from the public right-of-way which has been installed in such a manner that it can be removed without trenching or other opening of the public right-of-way. Permittee shall not remove any underground cable or other portions of the facilities which requires trenching or other opening of the public right-of-way except with the prior written approval of Manager. All removals shall be at permittee’s sole cost and expense.
(1) For purposes of this § 15-93(a),
CABLE means any wire, coaxial cable, fiber optic cable, feed wire or pull wire.
(b) Removal; above ground. As soon as practicable after the later of the expiration of the term of its franchise agreement or preexisting agreement, permittee, or its successor or assigns at its sole cost and expense, shall, unless waived in writing by Manager, remove from the public right-of-way all above-ground elements of its facilities, including but not limited to poles, pedestal-mounted terminal boxes, and lines attached to or suspended from poles.
(c) Schedule. The schedule and timing of removal shall be subject to approval by Manager. Unless extended by Manager, removal shall be completed not later than twelve (12) months following the expiration of the later of the term of a franchise agreement or preexisting agreement. Portions of permittee’s facilities in the public right-of-way that are not removed within such time period shall be deemed abandoned and, at the option of municipality exercised by written notice to permittee at the address provided for in the franchise agreement or preexisting agreement (whichever was last in effect), title to the portions described in such notice shall vest in municipality.
(Ord. 3760, passed 11-23-2009)
(a) Duties. Permittees shall faithfully perform all duties required by this ordinance.
(b) Different terms. The Act allows local units of government and video service providers to enter into voluntary franchise agreements that include terms and conditions which are different from those required under the Act or which are different from those in the standardized, uniform form of franchise agreement established by the MPSC. The Metro Act allows municipalities and providers to mutually agree to Metro Act permit terms differing from those in the standard forms of Metro Act permit approved by the MPSC. Current or prospective permittees who desire terms different from those in this article, as applied to them, should request such a voluntary franchise agreement or a mutually agreed to Metro Act permit from municipality.
(c) Interpretation and severability. The provisions of this ordinance shall be liberally construed to protect and preserve the peace, health, safety and welfare of the public, and should any provision or section of this ordinance be held unconstitutional, invalid, overbroad or otherwise unenforceable, such determination/holding shall not be construed as affecting the validity of any of the remaining conditions of this ordinance. If any provision in this ordinance is found to be partially overbroad, unenforceable, or invalid, permittee and municipality may nevertheless enforce such provision to the extent permitted under applicable law.
(d) Violations. A permittee who violates any provision of this ordinance is responsible for a municipal civil infraction, and shall be subject to such civil infraction fines and costs as prescribed in § 1-7 of the Municipal Code. Nothing in this section shall be construed to limit the remedies available to municipality in the event of a violation by a permittee of this ordinance.
(e) Authorized officials. The Mayor’s designee is hereby designated as the authorized official of municipality to issue municipal civil infraction citations (directing alleged violators to appear in court) or municipal civil infraction violation notices (directing alleged violators to appear at the Municipal Chapter Violations Bureau) for violations of this ordinance, as provided by municipality’s ordinances or Municipal Code.
(Ord. 3760, passed 11-23-2009)