(A) Except as to certificated telecommunication providers, or a public service provider whose current franchise contains an indemnity which provides that it is controlling over this provision, each person and public service provider installing, maintaining, removing or repairing facilities in the public right-of-way shall promptly defend, indemnify and hold the city harmless from and against all damages, costs, losses or expenses including any and all claims, lawsuit, judgments, costs, liens, losses expenses, fees (including reasonable attorney's fees and costs of defense) proceedings, actions demands, causes of action, liability, and suits of any kind and nature, including personal or bodily injury (including death), property damage, or other harm for which recovery of damages is sought, that is found by a court of competent jurisdiction to be caused solely by the negligent act, error, or omission of the public service provider or any agent, officer, director, representative, employee, affiliate, or subcontractor of the public service provider or their respective officers, agents, employees, directors, or representatives, or any other person while installing, repairing, maintaining, or removing facilities in a public right-of-way.
(B) The indemnity provided by this section does not apply to any liability resulting from the negligence of the city or its officers, employees contractors, or subcontractors. If the public service provider and the city are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of this state without, however, waiving any governmental immunity available to the city under state law and without waving any defenses of the parties under state law.
(C) The provisions of this indemnity are solely for the benefit of the city and are not intended to create any rights, contractual or otherwise, to any person or entity.
(D) A permittee who is a certificated telecommunication provider as defined in Tex. Local Gov't Code Chapter 283, as amended, shall give the city the indemnity provided in Tex. Local Gov't Code § 283.057, as amended.
(Ord. 06-2006-46, passed 6-13-06)