(A) City does not accept liability. By reason of the acceptance of an application, the grant of a permit or the issuance of a certificate of registration, the city does not assume any liability:
(1) For injuries to persons, damage to property or loss of service claims; or
(2) For claims or penalties of any sort resulting from the installation, presence, maintenance or operation of facilities.
(B) Indemnification.
(1) By applying for and being issued a certificate of registration with the city a provider is required, or by accepting a permit a permittee is required to defend, indemnify and hold harmless the city’s agents, elected officials, officers, employees, volunteers and subcontractors from all costs, liabilities, claims and suits for damages of any kind arising out of the construction, presence, installation, maintenance, repair or operation of its facilities, or out of any activity undertaken in or near a right-of-way, whether any act or omission complained of is authorized, allowed or prohibited by a permit, unless the act or omission is due to the city’s negligence or willful acts. A provider or permittee shall not bring, nor cause to be brought, any action, suit or other proceeding claiming damages, or seeking any other relief against the city’s agents, elected officials, officers, employees, volunteers and subcontractors for any claim nor for any award arising out of the presence, installation, maintenance or operation of its facilities, or any activity undertaken in or near a right-of-way, whether the act or omission complained of is authorized, allowed or prohibited by a permit. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the provider, the permittee or to the city; and the provider or permittee, 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. Any and all exercise of the above shall be consistent with, but not limited to, the following:
(a) To the fullest extent permitted by law, all providers and permittees shall, at their sole cost and expense, fully indemnify, defend and hold harmless the city, its elected officials, agents, officers, employees, volunteers and subcontractors from and against any and all lawsuits, claims (including, without limitation, workers’ compensation claims against the city or others), causes of actions, actions, liability and judgments for injury or damages (including, but not limited to, expenses for reasonable legal fees and disbursements assumed by the city in connection therewith), unless the act or omission is due to the city’s negligence or willful acts;
(b) Persons or property, in any way arising out of or through the acts or omissions of the provider or permittee, its subcontractors, agents or employees attributable to the occupation by the provider or permittee of the rights-of-way, to which the provider’s or permittee’s negligence shall in any way contribute, and regardless of whether the negligence of any other party shall have contributed to such claim, cause of action, judgment, injury or damage;
(c) Arising out of any claim for invasion of the right of privacy, for defamation of person, firm or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or patent or any other right of any person, firm and corporation by the provider, but excluding claims arising out of or related to the city’s actions; and
(d) Arising out of the provider or permittee’s failure to comply with the provisions of law applicable to provider or permittee in its business hereunder.
(2) The foregoing indemnification is conditioned upon the city:
(a) Giving the provider or permittee prompt notice of any claim or the commencement of any action, suit or proceeding for which indemnification is sought;
(b) Affording the provider or permittee the opportunity to participate in any compromise, settlement or other resolution or disposition of any claim or proceeding subject to indemnification; and
(c) Cooperate in the defense of such claim and making available to the provider or permittee all pertinent information under the city’s control.
(3) The city shall have the right to employ separate counsel in any such action or proceeding and to participate in the investigation and defense thereof, and the provider or permittee shall pay all reasonable fees and expenses of such separate counsel if employed.
(Prior Code, § 1074.22) (Ord. 76-2018, passed 9-24-2018)