(a) Service Provider Insurance. As a condition of the consent to Occupy or Use the Right-of-Way, a Service Provider must secure and maintain, at a minimum, the following liability insurance policies insuring the Service Provider and naming the City, its elected and appointed officers, officials, agents, employees and representatives as additional insureds:
(1) Comprehensive general liability insurance with limits not less than
A. Five million dollars ($5,000,000) for bodily injury or death to each Person;
B. Five million dollars ($5,000,000) for property damage resulting from any one accident; and
C. Five million dollars ($5,000,000) for all other types of liability.
(2) Automobile liability for owned, non-owned and hired vehicles with a limit of three million dollars ($3,000,000) for each Person and three million dollars ($3,000,000) for each accident.
(3) Worker's compensation within statutory limits and employer's liability insurance with limits of not less than one million dollars ($1,000,000).
(4) Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than three million dollars ($3,000,000).
(5) The liability insurance policies required by this Section shall be maintained by the Service Provider throughout the period of time during which the Service Provider is Occupying or Using the Right-of-Way, or is engaged in the removal of its 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 sixty (60) days after receipt by the City, by registered mail, of a written notice addressed to the Safety-Service Director of such intent to cancel or not to renew."
(6) Within sixty (60) days after receipt by the City of said notice, and in no event later than thirty (30) days prior to said cancellation, the Service Provider shall obtain and furnish to the City replacement insurance policies meeting the requirements of this Section.
(7) Upon written application to, and written approval by, the Safety-Service Director, a Service Provider may be self-insured to provide all of the same coverages as listed in this Section; except that all coverages for Workers' Compensation shall be in compliance with State law. No approval for self- insurance shall be given until the Safety-Service Director has made a complete review of the Service Provider's financial ability to provide such self-insurance. As part of the review process, the Safety-Service Director may require, and the self- insurance applicant shall provide, any and all financial documents necessary to make a valid determination of the applicant's ability to meet the needs of this Chapter.
(b) General Indemnification. Each application for consent to Occupy or Use the Right- of-Way, and each annual registration, shall include, to the extent permitted by law, the Service Provider's express undertaking to defend, indemnify and hold the City and its elected and appointed officers, officials, employees, agents, representatives and subcontractors harmless from and against any third party claims (including all damages, losses and expenses, reasonable attorney's fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the Service Provider or its Affiliates, officers, employees, agents, contractors or subcontractors relating to the Service Provider's Occupancy or Use of the Right-of-Way, whether such acts or omissions are authorized, allowed or prohibited by this Chapter. A Service Provider, however, will have no obligation to defend, indemnify or hold the City and its elected and appointed officers, officials, employees, agents, representatives and subcontractors harmless from their own negligence.
(c) Performance Bond. As a condition of consent to Occupy or Use the Right-of-Way, and to ensure the full and complete compliance with, and performance under this Chapter, including any costs, expenses, damages or loss the City pays or incurs because of any failure attributable to the Service Provider to comply with the codes, ordinances, rules, regulations or permits of the City, each Service Provider shall, in the amount of fifty thousand dollars ($50,000), or such lesser amount as the Safety-Service Director may determine to be necessary, (i) provide an unconditional letter of credit, or other instrument acceptable to the City, or (ii) furnish and file with the City a Performance Bond running to the City in the required amount from a company licensed to do business in the State of Ohio; which performance bond or letter of credit or other instrument shall be maintained at the sole expense of the Service Provider so long as any of the Service Provider's Facilities are located within the City's Right-of-Way.
(1) Before claims are made against the Performance Bond or letter of credit or other instrument, the City shall give written notice to the Service Provider:
A. Describing the act, default or failure to be remedied, or the damages, cost or expenses which the City has incurred by reason of the Service Provider's act or default;
B. Providing a reasonable opportunity for the Service Provider to remedy the existing or ongoing default or failure, if applicable;
C. Providing a reasonable opportunity for the Service Provider to pay any monies due the City before the City makes a claim against the Performance Bond or letter of credit or other instrument;
D. That the Service Provider will be given an opportunity to review the act, default or failure described in the notice with the Safety-Service Director.
(2) Service Providers shall maintain the full value of the Performance Bond or letter of credit or other instrument regardless of claims against the Performance Bond or letter of credit or other instrument made by, or paid to, the City.
(3) Any draw upon the Performance Bond or letter of credit to recover the City's costs related to a Service Provider's use of the Right-of-Way shall be considered Public Way Fees as that term is defined in this Chapter and Chapter 4939 of the Ohio Revised Code and shall be assessed by the Safety-Service Director in accordance with Chapter 4939 and any other applicable law.
(Ord. 2023-49. Passed 6-13-23.)