(A) The company, as a condition of the grant of this franchise, and in consideration thereof, shall protect, indemnify, and hold the city harmless against all claims for damages to persons or property by reason of the construction, maintenance and operation of its facilities, and conduct of business, or in any way arising out of performance under this franchise, directly, or indirectly, when or to the extent injury is caused, or alleged to have been caused, wholly or in part, by any act, omission, negligence, or misconduct of the company or any of its contractors, subcontractors, officers, agents, or employees, or by any person for whose act, omission, negligence, or misconduct, the company is by law responsible. This provision is not intended to create liability for the benefit of third parties but is solely for the benefit of the company and the city. In the event any claim is made against the city that falls under this indemnity provision and a court of competent jurisdiction should adjudge, by final decree, that the city is liable therefor, the company shall indemnify and hold the city harmless of and from any such liability, including any court costs, expenses, and reasonable attorney fees incurred by the city in defense thereof and incurred at any stage. Upon commencement of any suit, proceeding at law or in equity against the city relating to or covering any matter covered by this indemnity, wherein the company has agreed by accepting this franchise, to indemnify and hold the city harmless, or to pay said settlement, final judgment and costs, as the case may be, the city shall give the company immediate notice of such suit or proceeding. Whereupon the company shall provide a defense to any such suit or suits, including any appellate proceedings brought in connection therewith, and pay as aforesaid, any settlement, costs or judgments that may be rendered against the city by reason of such damage suit. Upon failure of the company to comply with the "defense of suit" provisions of the franchise, after reasonable notice to it by the city, the city shall have the right to defend the same and in addition to being reimbursed for any settlement or judgment that may be rendered against the city, together with all costs incurred therein, the company shall reimburse the city for reasonable attorney fees, including those employed by the city in such case or cases, as well as all expenses incurred by the city by reason of undertaking the defense of such suit or suits, whether such suit or suits are successfully defended, settled, compromised, or fully adjudicated against the city.
(B) In the event the city is compelled to undertake the defense of any such suit by reason of the company's failure to perform as hereinabove provided, the city shall have the full right and authority to make or enter into any settlement or compromise of such adjudication as the governing body shall deem in the best interest of the city, this without the prior approval or consent of the company with respect to the terms of such compromise or settlement.
(Ord. 45-1995)