(A) Limitation of liability. The city does not assume any liability for injuries to persons, damage to property or loss of service claims by parties other than the company or the city, or for claims or penalties of any sort resulting from the installation, presence, maintenance or operation of equipment or facilities by the company or its agents.
(B) Indemnification. The company shall indemnify and keep and hold the city, its officials, employees and agents, free and harmless from any and all costs, liabilities, and claims for damages of any kind arising out of the construction, presence, installation, maintenance, repair or operation of its equipment and facilities, or out of any activity undertaken in or near a public right-of-way, or out of any delay thereof, whether or not any act or omission complained of is authorized, allowed or prohibited by permit. The foregoing does not indemnify the city for its own negligence except for claims arising out of or alleging the city's negligence in issuing any permit or in failing to properly or adequately inspect or enforce compliance with a term, condition, or purpose of a permit.
(C) Defense of city. In the event a suit is brought against the city under circumstances where this agreement to indemnify applies, the company, at its sole cost and expense, shall defend the city in such suit if written notice thereof is promptly given to the company within a period wherein the company is not prejudiced by lack of such notice. If the company is required to indemnify and defend, it will thereafter have control of such litigation, but the company may not settle such litigation without the consent of the city, which consent shall not be unreasonably withheld. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the city. The company, in defending any action on behalf of the city, shall be entitled to assert in any action every defense or immunity that the city could assert in its own behalf. This franchise agreement shall not be interpreted to constitute a waiver by the city of any of its defenses of immunity or limitations on liability under M.S. Chapter 466.
(D) Delay damage fee. The city may establish and impose a damage fee for unreasonable delays in completion of any right-of-way excavation, obstruction, patching, restoration, removal, or relocation. The delay damage fee shall be established from time-to-time by a resolution of the City Council based upon its reasonable estimation of the actual costs that would be incurred due to any delay, the actual amount being undeterminable. The company shall be advised in writing by facsimile, with the original to follow by U.S. mail, of the perceived delay and of the period within which the work must be completed to avoid a delay damage fee. Disputes shall be handled in accordance with § 119.02(E), dispute resolution, hereof. A delay damage fee shall not be imposed if the delay in project completion is due to circumstances beyond the control of the company, including without limitation inclement weather, acts of God, or civil strife.
(Ord. 753, passed 6-24-04)