(a) Each Permittee shall, as a condition of its Right-of-Way Permit, indemnify, protect and hold harmless the City from any and all lawsuits, claims (including without limitation Worker's Compensation claims against the City or others), causes of action, actions, liability, and judgments for injury or damages (including but not limited to expenses for reasonable legal fees and disbursements assumed by the City in conjunction therewith):
(1) To persons or property, in any way arising out of or through the acts or omissions of the Permittee, its subcontractors, agents, or employees attributable to the occupation by the Permittee of the Right-of-Way, to which the Permittee's negligence shall in any way contribute, and regardless of whether the negligence of any other party shall have contributed to such claim, cause of action, judgment, injury or damage excluding, however, claims arising from the City's negligence or willful misconduct.
(2) Arising out of any claim for invasion of the right of privacy, for the defamation of any person, firm or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or patent or any other right of any person, firm and corporation by the Permittee, excluding however, claims arising out of or related to City programming.
(3) Arising out of Permittee's failure to comply with the provisions of any federal, state, or local statute, ordinances or regulations applicable to Permittee in its business hereunder.
(b) The foregoing indemnification is conditioned upon the City:
(1) Giving the Permittee prompt notice of any claim or the commencement of any action, suit or proceeding for which indemnification is sought;
(2) Affording the Permittee the opportunity to participate in and fully control any compromise, settlement, or other resolution disposition of any claim or proceeding subject to indemnification.
(3) Fully cooperating in the defense of such claim and making available to the Permittee all pertinent information under the City's control.
(c) The City shall have the right to employ separate counsel in any such action or proceeding and to participate in the investigation and defense thereof, and the Permittee shall pay the reasonable fees and expenses of such separate counsel, if employed with the approval and consent of the Permittee, or if the representation of both Permittee and the City by the same attorney would be inconsistent with accepted canons of professional ethics.
(d) Insurance. Except as provided in subsection (f) hereof, each General Rightof-Way Permittee and Special Right-of-Way Permittees for Nonresidential Purposes shall be required to, at their own cost and expense, obtain, and maintain during the term of any permit, a liability insurance policy or policies naming the City as an additional insured. A Certificate of insurance regarding such policies shall be furnished to the Director at or before the granting of a Permit. The insurance company issuing said policies shall carry a financial rating of not less than "A" in the latest edition of "Best's Key Rating Guide" published by A. M. Best, and shall be duly licensed to do business in the State of Ohio. Said policies shall be maintained for such other period of time during which the operator operates or is engaged in the removal of the system. Each such 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 thirty (30) days after the receipt by the City, by registered mail, of a written notice of such intent to cancel or not renew."
(1) Within thirty (30) clays after receipt by the City of said notice, and in no event later than five (5) days prior to said cancellation, the Permittee shall obtain and furnish to the City a Certificate of Insurance evidencing replacement insurance policies conforming to the insurance requirements of this Chapter.
(2) Additional Insurance. The City reserves the right to require any additional insurance coverage it deems necessary after the review of the proposal submitted by the Permittee.
(e) Except as provided in subsection (f) hereof, each Permittee shall maintain insurance coverage (or self-insurance coverage by Permittees having capitalization in excess of ten million dollars ($10,000,000), as determined by the Director) in accordance with the following:
(1) General Liability Insurance. The Permittee shall maintain general liability coverage on a comprehensive coverage form, including the following: premises/operations explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury. The following limits of liability are a minimum:
A. $1,000,000 per occurrence;
B. $2,000,000 annual aggregate;
C. $1,000,000 excess general liability per occurrence and annual aggregate.
(2) Auto Liability Insurance. The Permittee shall maintain comprehensive auto liability insurance covering owned, hired, and nonowned vehicles in the minimum amounts of:
A. $1,000,000 per occurrence;
B. $2,000,000 annual aggregate;
C. $1,000,000 excess automobile liability per occurrence.
(3) Worker's Compensation and Employer's Liability Insurance. The Permittee shall maintain Worker's Compensation and employer's liability insurance, valid in the State of Ohio, in the minimum amount of:
A. Statutory limit for Worker's Compensation;
B. $1,000,000 for employer's liability per occurrence; and
C. $1,000,000 excess employer liability coverage.
(f) Self-Insurance. Those Applicants maintaining a net book value in excess of ten million dollars ($10,000,000) may self insure for any and all coverage's listed above in subsection (e) by submitting a statement requesting to do same. Said statement shall include:
(1) Audited financial statements for the previous year and
(2) A description of the Applicant's self insurance program.
(g) Except for Special Right-of-Way for Residential Purposes Permittees, all Permittees shall provide either a Performance Bond (or self bonding by Permittee having capitalization in excess of fifty million dollars), an Irrevocable Letter of Credit or a Certified Check in an amount agreed to by the City and the Applicant to pay the cost of restoration of the Right-of-Way should the Permittee fail to perform restoration required by this chapter or Permit and to pay the cost of removal or relocation of any facilities required by this chapter or Permit should the Permittee fail to perform said removal or re-location.
(Ord. 02-70(a). Passed 11-25-02.)