(A) As a condition of a permitee having its improvements or equipment located in town public right-of-way or attached to town-owned utility poles, equipment or structures placed within the public right-of-way, the permitee agrees to and shall, to the extent permitted by law, defend, indemnify and hold harmless the town, its employees, officers, agents and contractors against any claim of liability or loss of any kind, including administrative orders and regulations, and specifically including, without limitation, any claim of liability or loss from personal injury or property damage resulting from or arising out of the presence of the permitee's equipment in the town right-of-way or attached to town- owned utility poles, equipment or structures placed within the right-of-way and also as to any willful misconduct of the user, its employees, contractors or agents, except to the extent such claims or damages may be due to or caused by the willful misconduct of the town, or its employees, officers, contractors or agents.
(B) The permitee agrees as a condition of permit issuance to indemnify the town and pay the cost of the town's legal defenses, including fees of attorneys as may be selected by the town, for all claims described in the hold harmless clause above. Such payment on behalf of the town shall be in addition to any and all other legal remedies available to the town and shall not be considered to be the town's exclusive remedy.
(C) Any permitee placing or installing any structure or object on a town-owned utility pole, equipment or structure located within the public right-of-way shall ensure that, at least 30 days prior to the commencement of any work the permitee provides to the town a certificate or certificates issued by an insurer or insurers authorized to conduct business in Florida that is rated not less than category A-VII by A.M. Best, subject to approval by the town, verifying the following minimum policy coverage amounts:
General Liability Insurance policy with a $1,000,000 combined single limit for each occurrence to include the following coverage: Operations, Products and Completed Operations, Personal Injury, Contractual Liability covering the right-of-way/easement permit, "X-C-U" hazards, and Errors & Omissions.
Auto Liability Insurance which includes coverage for all owned, non-owned and rented vehicles with a $1,000,000 combined single limit for each occurrence.
Workers' Compensation and Employers Liability Insurance covering all employees of the permitee and subcontractors, as required by law.
In the event the permit activity involves professional or consulting services, in addition to the aforementioned insurance requirements, the permitee shall also procure and maintain a Professional Liability Insurance Policy in the amount of $1,000,000 per claim.
In the event the permit activity involves services related to building construction projects the permitee shall also procure and maintain a Builders Risk Insurance Policy with loss limits equal to the value of the construction project.
(D) In addition to the above, Specialty Insurance policies covering specific risks of loss (including but not limited to, for example: Longshore coverage, Crane and Rigging, Inland Marine, etc.) may be required by the town. Any additional specialty insurance coverage requirement will be dictated by the specific activity proposed under the right-of-way/easement permit and insurance underwriting standards, practices, procedures or products available in the commercial insurance market at the time of the contract inception. The permitee is required to procure and maintain all such specialty coverage in accordance with prudent business practices within the permitee's industry.
(E) The permitee shall provide certificates of insurance to the town demonstrating that the aforementioned insurance requirements have been met prior to the commencement of work under the right-of-way/easement permit. The certificates of insurance shall indicate that the policies have been endorsed to cover the town as an additional insured (a waiver of subrogation in lieu of additional insured status on the workers compensation policy is acceptable) and that these policies may not be canceled or modified without 30 days prior written notice to the town. The policies shall remain effective until all wireless facilities are removed from town-owned utility poles, infrastructure or other improvements.
(F) The insurance coverage enumerated above constitutes the minimum requirements and shall in no way lessen or limit the liability of the permitee unless against any and all claims for bodily injury, sickness, disease, death, personal injury, damage to property or loss of use of any property or assets is caused in whole or in part by any negligent act or omission of the town.
(G) The town shall not be liable to a permitee, or any of its respective agents, representatives, or employees for any lost revenue, lost profits, loss of technology, use of rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if the town has been advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise that is related to, arises out of, flows from or is, in some part, caused by permitee's attachment to or use of town-owned infrastructure.
(H) A permitee may not construe a permit, correspondence, or other communication as affecting a right, privilege or duty previously conferred or imposed by the town to or on another person. The town reserves the right to continue or extend a right, privilege, or duty or to contract with additional users of town-owned rights-of-way without regard to resulting economic competition.
(I) A permitee is solely responsible for the risk and expense of installation, operation, and maintenance of the permitee's attachments, structures or improvements. The town does not warrant or represent that town-owned utility poles, equipment or structures are suitable for placement of a permitee's attachments. A permitee must accept the town-owned infrastructure "as is" and "where is" and assumes all risks related to the use. The town is not liable for any damage to attachment(s) due to an event of damage to the pole or premises.
(J) A permitee may not transfer, assign, convey, or sublet a permit to collocate on town-owned utility poles, equipment or structures without the Town Council's prior written consent. A transfer, assignment, conveyance, or subletting of a collocation permit without the Town Council's prior written consent is not binding on the town. A written request to approve such a change shall be submitted to the town. A written response will be provided within 30 days of receipt of the request.
(Ord. 2018-06, passed 8-29-2018)