(A) Indemnification of city officials. Licensee shall indemnify, defend and hold harmless the city, the members of the council, including the mayor, and all other officials, employees and agents, boards or commissions, when acting in their capacity as municipal officials, employees or agents, boards or commissions, from and against any and all claims, suits and actions, liability and judgment for damages or otherwise:
(1) Damage to person or property. For actual or alleged injury or death to individuals, or damage to property, in any way arising out of or through, or alleged to arise out of or through, any act or omission of licensee or its officers, agents, employees or contractors, or to which licensee or its officers, agents, employees or contractors acts or omissions in any way contribute;
(2) Violation of rights or interests. Arising out of or alleged to arise out of any claim for damages, with respect to licensee’s operation of a cable TV system, for invasion of the right of privacy, defamation of any person, or the violation or infringement of any copyright, trademark, trade name, service mark or patent or any other right of any person; or
(3) Statutory violations. Arising out of or alleged to arise out of licensee’s failure to comply with the provisions of any statute, regulation or ordinance of the United States, the State of Arizona or the city.
(B) Defense of actions.
(1) Nothing in this license agreement shall prevent a party indemnified and held harmless by another from participating in the defense of any litigation by its own counsel at its sole expense.
(2) That participation shall not under any circumstances relieve the indemnifying party from its duty defending against liability or paying any judgment entered against that party.
(C) City’s negligence or willful misconduct. Notwithstanding anything to the contrary contained in this section, the city shall not be indemnified or reimbursed in relation to any matter, in any action, suit or proceeding:
(1) Arising out of the operation, use or distribution of programming or services over the Government, Economic Development and PEG Channels facilities or access funding; or
(2) In which the city, its officials, employees or agents, is negligent in the performance of its obligations under this license agreement, or has engaged in willful misconduct or criminal acts; provided, however, that licensee shall provide a defense even though, in good faith, it believes at the commencement of any action, that the city may have engaged in that conduct. If the city, its officials, employees or agents, is found to have engaged in that conduct, licensee shall be reimbursed by the city for all amounts paid and expenses incurred by licensee in connection with that action, suit or proceeding, including reasonable attorney fees.
(D) Indemnity for construction, maintenance and operation.
(1) The licensee shall at its sole cost and expense, indemnify, hold harmless and defend the city, its officials, boards, commissions, agents and employees by providing immediate defense with counsel approved by the council, against any and all claims, suits, causes of action, proceedings and judgments for damages arising out of construction, maintenance or operation of the cable TV system.
(2) City shall provide 30 days’ notice of any claim or potential claim and shall provide copies of any summons and complaint.
(E) Required insurance. The licensee, upon acceptance of the license agreement, shall provide the city with and maintain in full force throughout the term of the license agreement, insurance issued by a company duly authorized to do business in the State of Arizona, insuring with respect to the installation, construction, operation and maintenance of the system as follows:
(1) Comprehensive general and automobile liability coverage including, but not limited to, blanket contractual liability, completed operations liability, broad form property damage including but not limited to coverage for explosion, collapse, underground hazard and automobile non-ownership liability. This insurance shall be written in the following minimum amounts:
(a) Comprehensive general liability: $2,000,000 combined single limit, bodily injury and property damage;
(b) Comprehensive automobile liability: $2,000,000 combined single limit, bodily injury and property damage; and
(c) Excess umbrella liability, covering all the above mentioned hazards, in the minimum amount of $5,000,000.
(2) Workers’ compensation coverage as required by the laws and regulations of the State of Arizona.
(3) All insurance policies required herein shall include the city as a named insured party.
(4) Licensee shall be solely responsible for all premiums due and payable for insurance required herein. Licensee shall provide to the city a certificate of insurance evidencing compliance with the coverage requirements listed above.
(5) All insurance policies required herein shall be in a form approved by the City Attorney and shall include a 60 day notice of cancellation or modifying endorsement.
(F) Self insurance. The provisions of this article, in the discretion of the city, may be satisfied by proof of self insurance.
(Ord. 1413, passed 2-3-2015)