(A) Permission to rent and use. There is hereby granted by the City to the Authority, subject to the terms, conditions and limitations contained in this franchise ordinance and the MOU (which document shall control in the event of a conflict with this franchise during the term of the MOU) nonexclusive permission to rent, use and occupy and the franchise right, privilege and authority to construct, purchase, acquire, locate, maintain, operate and extend into, within, and through the City, facilities for the purpose of distributing water and providing wastewater service, of any nature, with the right and privilege for the period and upon the terms and conditions hereinafter specified, to sell, furnish and distribute any or all of said products to the City and its inhabitants, by means of its facilities, on, over, under, along and across all rights-of-way. Provided, however, that the Authority's construction plans for line extensions within the limits of the City, prepared by either a developer or the Authority, shall be submitted to the City Development Review Committee for review of any impact the line extension may have on City facilities. Additionally, the Authority shall provide notice of any line extension policy change to the City pursuant to § 13-4-9-21 herein.
(B) Indemnification. Subject to the terms and conditions of the MOU, the Authority shall indemnify, defend and hold the City harmless from and against claims, demands, liens and all liability or damage of whatsoever kind on account of or arising from the grant of this franchise, the exercise by the Authority of the related rights, or from the operations of the Authority within the City, and shall pay the costs of defense plus reasonable attorneys' fees. The Authority shall be responsible for damages to any property in the rights- of-way as a result of Authority activities. The City shall give prompt written notice to the Authority of any claim, demand or lien with respect to which the City seeks indemnification hereunder and unless in the City's judgment a conflict of interest may exist between the City and the Authority with respect to such claim, demand or lien, permit the Authority to assume the defense of such claim, demand, or lien with counsel satisfactory to the City. If such defense is not assumed by the Authority, the Authority shall not be subject to any liability for any settlement made without its consent. Notwithstanding any provision hereof to the contrary, the Authority shall not be obligated to indemnify, defend or hold the City harmless to the extent any claim, demand or lien arises out of or in connection with any negligent act or failure to act of the City or any of its officers or employees acting on behalf of the Authority pursuant to the MOU unless such negligent act or failure to act is due to direction given by the Authority to a City employee.
(C) Remedies. In the event the Authority or the City fails to fulfill any of their respective obligations under this franchise, the City or the Authority, whichever the case may be, will have a breach of contract claim and remedy against the other in addition to any other remedy provided by law, provided that no remedy which would have the effect of amending the specific provisions of this franchise shall become effective without such action which would be necessary to formally amend the franchise
(Ord. 27-2006)