By applying for and being issued a Certificate of Registration with the city a provider agrees, or by accepting a permit a permittee is required and agrees, to protect, 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, replacement, restoration, or operation of its facilities, or out of any activity undertaken in or near a rights-of-way, whether any act or omission complained of is authorized, allowed, or prohibited by a permit. A provider or permittee further agrees that it will 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 rights-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, permittee, or to the city; and the provider or permittee, in defending any action on behalf of the city, if allowable by law, 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 agents, elected officials, officers, employees, volunteers and subcontractors from and against any and all lawsuits, claims (including without limitation worker's 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:
(1) To persons or property, to the extent arising out of or through the acts or omissions of provider, its subcontractors, agents or employees attributable to the occupation by the provider or permittee of the rights-of-way, to which permittee's or provider's negligence shall in any way contribute.
(2) 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 or corporation by the provider or permittee, but excluding claims arising out of or related to city programming.
(3) Arising out of provider's or permittee's failure to comply with the provisions of any law applicable to provider or permittee in its business hereunder.
(B) The foregoing indemnification is conditioned upon the city:
(1) Giving provider or permittee reasonable notice of any claim or the commencement of any action, suit or proceeding for which indemnification is sought;
(2) 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
(3) Cooperating in the defense of such claim and making available to the provider or Permittee all pertinent information under the city's control.
(C) 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 expense of such separate counsel if employed.
(Ord. 24-2004, passed 12-20-04; Am. Ord. 03-2019, passed 1-22-19)