(A) Disclaimer of liability. The village shall not at any time be liable for injury or damage occurring to any person or property from any cause whatsoever arising out of the construction, maintenance, repair, use, operation, condition, or dismantling of a permittee's system or due to the act(s) or omission(s) of any person, or entity other than the village or those persons or entities for which the village is legally liable as a matter of law.
(B) Indemnification. A permittee shall, at its sole cost and expense, indemnify and hold harmless the village, all associated, affiliated, allied, and subsidiary entities of the village now existing or hereafter created, including, without limitation, their respective officers, boards, commissions, employees, agents, attorneys, and contractors (hereinafter referred to in this chapter as “indemnities”), from and against:
(1) Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses, and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the indemnities by reason of any act or omission of a permittee, its personnel, employees, agents, contractors, or subcontractors, resulting in personal injury, bodily injury, sickness, disease, or death to any person or damage to, loss of, or destruction of tangible or intangible property, libel, slander, invasion of privacy, negligence, intentional torts, and unauthorized use of any trademark, trade name, copyright, patent, service mark, or any other right of any person, firm, or corporation, which may arise out of or be in any way connected with the construction, installation, operation, maintenance, or condition of the system or a permittee's failure to comply with any federal, state, or local statute, ordinance, or regulation; and
(2) Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses, and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and other consultants), which is imposed upon, incurred by or asserted against the indemnities by reason of any claim or lien arising out of work, labor, materials or supplies provided or supplied to a permittee, its contractors or subcontractors, for the installation, construction, reconstruction, operation, or maintenance of the system and, upon the written request of the village shall cause the claim or lien to be discharged or bonded within 15 days following the request.
(C) Assumption of risk. A permittee undertakes and assumes for its officers, agents, contractors, and subcontractors and employees, all risk of dangerous conditions, if any, on or about any village owned or controlled property, including public rights-of-way, and a permittee hereby agrees to indemnify and hold harmless the indemnities against and from any claim asserted or liability imposed upon the indemnities for personal injury or property damage to any person arising out of the installation, operation, maintenance, or condition of the system or a permittee's failure to comply with any federal, state, or local statute, ordinance, or regulation.
(D) Defense of indemnities. In the event any action or proceeding shall be brought against the indemnities by reason of any matter for which the indemnities are indemnified hereunder, a permittee shall, upon notice from any of the indemnities, at the permittee's sole cost and expenses, resist and defend the same with legal counsel selected by the permittee and consented to by the Village Attorney, the consent not to be unreasonably withheld; provided further, however, that the permittee shall not admit liability in any such matter on behalf of the indemnities without the written consent of the village Attorney; and indemnities shall not admit liability for, nor enter into any compromise or settlement of, any claim for which they are indemnified hereunder without the prior written consent of the permittee.
(E) Notice, Cooperation, and expenses. The village shall give a permittee prompt written notice of the making of any claim or the commencement of any action, suite or other proceeding covered by the provisions of this section. The village may cooperate with a permittee and participate in the defense of any litigation by the village's own counsel. A permittee shall pay all expenses incurred by the village in defending itself with regard to any such actions, suits, or proceedings. These expenses shall include all out-of-pocket expenses such as attorney fees and shall also include the reasonable value of any services rendered by or on behalf of the Village Attorney, if the service is determined necessary and appropriate by the Village Attorney, and the actual expenses of the village's agents, employees, or expert witnesses, and disbursements and liabilities assumed by the village in connection with the suits, actions, or proceedings. No recovery by the village of any sum under a bond required as a condition of a permit shall be any limitation upon the liability of a permittee to the village under the terms of this section, except that any sum so received by the village shall be deducted from any recovery which the village might have against a permittee under the terms of this section.
(F) Insurance. During the term of a permit, a permittee shall, as a condition of its permit, maintain, or cause to be maintained, in full force and effect and at its sole cost and expense, the following types and limits of insurance:
(1) Workers' compensation insurance with Michigan statutory limits, including and employers' liability coverage;
(2) Comprehensive general liability insurance with minimum limits of $2,000,000 as the combined single limit for each occurrence of bodily injury and personal injury, and $1,000,000 per occurrence for property damage. The policy shall provide blanket contractual liability insurance for all written contracts, and shall include coverage for products and completed operations liability, independent
contractors liability, broad form general liability extensions or equivalent, and coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage; and
(3) Motor vehicle liability insurance covering all owned, hired, and nonowned vehicles in use by a permittee, its employees and agents, with personal protection insurance and property protection insurance to comply with the provisions of the Michigan no fault insurance law, including residual liability insurance with minimum limits of $1,000,000 as the combined single limit for each occurrence for bodily injury and property damage.
(G) Additional insureds. All policies, except for workers' compensation policies, shall name the “Manchester Village, a Michigan municipal body, including all elected and appointed officials, boards, commissions, officers, and employees” as additional insureds (herein referred to in this chapter as the additional insureds). Each policy which is endorsed to add additional insureds hereunder shall contain cross-liability wording, as follows: “In the event of a claim being made hereunder by one insured for which another insured is or may be liable, then this policy shall cover the insured against whom a claim is or may be made in the same manner as if separate policies had been issued to each insured hereunder.”
(H) Submission of certificates of insurance. Certificates showing the permittees has, and continues to have in effect during the term of the permit, the insurance policies required by this section, along with written evidence of payment of required premiums, shall be filed with the village.
(I) Cancellation of policies of insurance. The insurance certificates for each policy maintained pursuant to this chapter shall contain an unconditional endorsement that the insurer will give the village at least 30-days’ prior written notice of any intention not to renew the policy or to cancel, replace, or materially alter the policy.
(J) Review of requirements. The village may annually review the insurance coverage to be carried by a permittee. If the village determines that additional or other insurance is necessary to protect the interests of the village or the additional insureds, a permittee shall be so notified and shall obtain the additional types and limits of insurance, at its sole cost and expense.
(K) Insurance companies. All insurance shall be effected under valid and enforceable policies, insured by insurers licensed to do business by the State of Michigan or by surplus line carriers on the Michigan insurance commissioner's approved list of companies qualified to do business in Michigan. All insurance carriers and surplus line carriers shall be rated A or better by A. M. Best Company.
(L) Deductibles; indemnification. All insurance policies may be written with deductibles and self-insurance retentions comparable to businesses of like character and size, if consistent herewith and approved by the village upon the recommendation of the Village Attorney. As a condition of a permit, a permittee agrees to indemnify and save harmless the additional insureds from and against the payment of any deductible and from the payment of any premium on any insurance policy required to be furnished by this chapter.
(M) Contractors. A permittee shall require that each and every one of its contractors and their subcontractors carry, in full force and effect, workers' compensation, comprehensive general liability and motor vehicle liability insurance coverage of the type which a permittee is required to obtain under the terms of this section.
(N) Notice of possible liability. A permittee shall immediately advise the Village Attorney of any claim or litigation that may result in liability to the village.
(Ord. 236, passed 4-17-2000)