(a) Indemnification.
(1) Permittee shall construct, maintain and operate its facilities in a manner which provides protection against injury or damage to persons or property. The permittee for itself and its related entities, agents, employees, subcontractors and the agents and employees of said subcontractors shall save the Municipality harmless, defend, and indemnify the Municipality, its successors, assigns, officers, employees, agents and appointed and elected officials from and against all liability or damage and all claims or demands whatsoever in nature, and reimburse the Municipality for all its reasonable expenses, as incurred, arising out of the installation and operation of the permittee's system within the streets and rights-of-way, including but not limited to the actions of the permittee, its employees, agents, contractors, related entities, successors and assigns, or the securing of and the exercise by the permittee of the permit rights granted in this permit, including any third party claims, administrative hearings, actions for copyright infringement and litigation; whether or not any act or omission complained of is authorized, allowed, or prohibited by this permit. The terms of each contract awarded by the permittee for activities pursuant to this permit shall contain indemnity provisions whereby the contractor shall indemnify the Municipality to the same extent as described above.
(2) The permittee shall pay, and by its acceptance of this permit agrees to pay, all actual expenses incurred by the Municipality in defending itself with regard to all damages and penalties arising in any way out of the exercise of any rights granted hereunder. In the event the Municipality institutes litigation against the permittee for a breach of this permit or for an interpretation of the permit, and the Municipality is the prevailing party, the permittee shall reimburse the Municipality for all costs related thereto, including reasonable attorney fees. The permittee shall not be obligated to hold harmless or indemnify the Municipality for claims or demands to the extent that they are due solely to the gross negligence, or any intentional and/or willful acts of the Municipality or any of its officers, employees or agents.
(b) Notice. Within 30 days after receipt of the same by the Law Director, the Municipality will provide notice to the permittee of the assertion of any claim or action arising out of the exercise by the permittee of its permit rights. The permittee will be permitted, at its own expense, to appear and defend or assist in defense of such claims. The permittee shall have no recourse whatsoever against the Municipality for or on account of any loss, cost, expense or damage arising out of the provisions or requirements of this permit, or the grant of the permit.
(c) Certificate of Insurance.
(1) At the time of the execution of the permit, and annually thereafter, the permittee shall provide to the Municipality in accordance with the Provisions hereof, a certificate of insurance. The permittee shall maintain public liability and property damage insurance that protects the permittee and the Municipality, its officers, agents, employees and appointed and elected officials from any and all claims for damages or personal injury including death, demands, actions, and suits brought against any of them arising from operations under this permit or in connection therewith, in accordance with the divisions below. Coverage during construction shall include those hazards normally identified as X.C.U. This insurance coverage constitutes a minimum requirement and shall in no way be deemed to lessen or limit the liability of the permittee, related entities, its successors or assigns, under the terms of this revocable permit.
(2) The certificate of insurance shall be with a company licensed to do business in the State of Ohio with a rating by Best of not less than "A" . This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to property, resulting from permittee's automobiles, products and operations. The insurance shall provide coverage at all time for not less than five hundred thousand dollars ($500,000) for bodily injury to any one person and one million dollars ($1,000,000) bodily injury aggregate per single accident or occurrence and five hundred thousand dollars ($500,000) for damage to any single property, and one million dollars ($1,000,000) for property damage aggregate per single accident or occurrence, plus costs of defense; or in such other amounts as are acceptable to the Municipality and as provide substantially equivalent coverage. The following endorsements shall attach to the liability policy:
A. The policy shall cover personal injury as well as bodily injury.
B. The policy shall cover blanket contractual liability subject to the standard universal exclusions of contractual liability included in the carrier's standard endorsement as to bodily injuries, personal injuries and property damage.
C. Broad form property damage liability shall be afforded.
D. The Municipality and its elected officials, officers, agents, and employees shall be named as an additional insureds on the policy. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer's liability as set forth elsewhere in the policy beyond the amount of amounts for which the insurer would have been liable if only one person or interest had been named as insured. The coverage must apply as to claims between insureds on the policy.
E. Standard form of cross-liability shall be afforded.
F. An endorsement shall be provided which states that the policy shall not be canceled or materially altered so as to be out of compliance with the requirements of this Section, without 30 days written notice of such cancellation or alteration given to the Municipality.
(3) If the insurance is canceled or materially altered so as to be out of compliance with the requirements of this section, the permittee shall provide a replacement policy. Permittee agrees to maintain continuous uninterrupted insurance coverage, in the amounts required.
(4) The Municipality reserves the right to adjust the coverage limit requirement upward in the event the statutory maximums applicable to local governments are raised and that such increased coverage limit requirements are equally applied to all other permittees of the Municipality.
(5) Any deductible or self-insured retention must be declared to the Municipality.
(6) Permittee shall submit to and maintain on file with the Municipality documentation of the required insurance including a certificate of insurance signed by the insurance agent and companies named, as well as all properly executed endorsements. Said certificate shall be subject to the approval of the Municipality as to the adequacy of the certificate and of the insurance certified under the requirements of this Section.
(7) Failure of the permittee to maintain adequate insurance as required under this section shall be cause for immediate termination of the permit by the Municipality.
(8) Nothing herein shall be in any way construed as a waiver on behalf of the Municipality of any of the protections or provisions of the Ohio Governmental Immunity Act, and the permittee shall ensure that in naming the Municipality as an insured under this Section, all insurance policies or agreements shall specifically contain a non-waiver provision, and shall not impair said protection and provisions.
(d) Security.
(1) With respect to the initial construction of the telecommunications and/or other utility system, or any significant project to upgrade or rebuild more than 50% of the telecommunications and/or other utility system, permittee shall provide to the Municipality a construction performance and construction completion bond (hereinafter referred to as the "Construction Completion Bond") with a surety reasonably approved by the Municipality's Law Director, in an amount equal to 10% of the applicable estimated construction cost. Such amount shall not exceed two hundred thousand dollars ($200,000) With respect to initial construction of the telecommunications and/or other utility system or the upgrade or rebuild project, when regular subscriber service is available to 75% of occupied dwelling units, amount of the bond shall be reduced by 50% of the original amount. On the one year anniversary of the initial construction of the telecommunications and/or other utility system or the upgrade or rebuild project, as the case may be, the bond may be canceled.
(2) Permittee shall also deposit with the Municipality a surety bond or letter of credit in the amount of fifty thousand dollars ($50,000) in a form reasonably acceptable to the Law Director of the Municipality (hereinafter referred to as the "Performance Bond"). The performance bond shall be available to insure the faithful performance by permittee of provisions of the permit, other than with respect to construction, upgrading, of rebuilding projects covered herein, but including the obligation to remove the telecommunications and/or other utility system upon revocation of termination of the permit as set forth herein. The performance bond shall be maintained at $50,000 during the entire term of the permit, regardless of withdrawals which may be made under this section. In the event of a default by permittee in any of its obligations under this permit, other than completion of construction, which default is not cured within 30 days after notice by the Municipality to permittee of such default (or such longer time as is necessary to cure, so long as permittee commences to cure within 30 days and diligently pursues cure), the Municipality may levy on the Performance Bond upon notifying permittee of the amount of such charge. The rights reserved to the Municipality with respect to the performance bond are in addition to all other rights of the Municipality, at law or in equity.
(1982 Code, § 768.06) (Ord. 97-50. Passed 7-25-1997.)