(a) Generally. A franchisee shall indemnify, defend, and hold the County harmless against all liability, loss, claims, suits, judgments, costs, attorney fees, and damages of any kind in any way arising out of or through, or alleged to arise out of or through:
(1) the acts or omissions of the franchisee and its employees, officers, or agents, arising out of the construction, installation, maintenance, operation, or removal of the cable system, including damage to persons, real property, or personal property caused by the construction, installation, operation, maintenance, or removal of any structure, equipment, wire, or cable;
(2) the acts or omissions of the franchisee, and its employees, officers, or agents, including any failure or refusal by the franchisee, and its employees, officers, or agents, to comply with any obligation or duty imposed on the franchisee by this article or the franchise agreement;
(3) copyright infringements;
(4) any failure by the franchisee to secure consents from the owners, authorized distributors, or licensees of programs to be delivered by the cable system, whether or not any act or omission complained of is authorized, allowed, or prohibited by this article or the franchise agreement.
(b) Tender of defense of a claim. If a claim arises, the County shall tender the defense of the claim to the franchisee. The County shall give the franchisee written notice of its obligation to indemnify the County as promptly as practicable after receipt of a claim or action pursuant to this subsection and sufficiently in advance of the time for the franchisee's response to a third-party claim that the franchisee will be able to timely respond and the defense against the claim will not be prejudiced. The franchisee shall provide the defense of any claims brought against the County by selecting counsel of the franchisee's choice to defend the claim, subject to the consent of the County, which shall not unreasonably be withheld. The franchisee shall keep the County and its counsel advised of the progress and the substance of the defense in a timely manner so that, if desired, the County can intervene to protect its rights and benefits. The County may participate in the defense of a claim at its expense. If a final judgment is obtained against the County or one or more of its officers, employees, or agents in a suit or action for which the County and its officers, employees, and agents are entitled to be indemnified and held harmless, the franchisee shall pay the judgment, including all costs and attorney fees. The franchisee shall be entitled to settle a claim brought in a suit or action for which the County or its officers, employees, or agents are entitled to be indemnified and held harmless hereunder, provided that, absent the release of the County and any other indemnified parties, the franchisee shall obtain the prior written approval of the County for any settlement of such claims, which approval shall not be unreasonably withheld or unreasonably delayed. In the event that the terms of any such settlement do not include the release of the County and the County does not consent to the terms of the settlement or compromise, the franchisee shall not settle the claim or action, but its obligation to indemnify the County shall not exceed the amount of the settlement.
(c) Limitations; County negligence or willful misconduct. A franchisee is not required to indemnify the County for the negligence or willful misconduct of the County.
(d) Limitations; programming for PEG access facilities and leased channels. A franchisee is not required to indemnify the County for any activity from which the franchisee is immune from liability pursuant to 47 U.S.C. § 558, pertaining to programming for PEG access facilities and leased channels.
(e) Effect of independent contractors. The fact that the franchisee carries out activities under the franchise through independent contractors does not constitute an avoidance of or defense to its duty of indemnification under this section.
(Bill No. 54-06)