(A) A franchisee shall, at its sole cost and expense, indemnify, hold harmless and defend the village, its officials, boards, board members, commissions, commissioners, agents and employees, against any and all claims, suits, causes of action, proceedings and judgments for damages or equitable relief arising out of the construction, maintenance or operation of its cable system; copyright infringements or a failure by the franchisee to secure consents from the owners, authorized distributors or licenses of programs to be delivered by the cable system; the conduct of the franchisee’s business in the village; or in any way arising out of the granting of a franchise or a franchisee’s enjoyment or exercise of a franchise granted hereunder, regardless of whether the act or omission complained of is authorized, allowed or prohibited by this code or a franchise agreement.
(B) (1) Specifically, but not by way of limitation on the scope of division (A) above, a franchisee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the village, and in their capacity as such, the officers, agents and employees thereof, from and against any and all claims, suits, actions, liability and judgments for damages or otherwise subject to § 638 of the Cable Act, 47 USC § 558, arising out of or alleged to arise out of the installation, construction, operation or maintenance of its system, including, but not limited to any claim against the franchisee for invasion of the right of privacy, defamation of any person or the violation or infringement of any copyright, trade mark, trade name, service mark or patent or of any other similar right of any person.
(2) This indemnify does not apply to programming carried on any channel set aside for public, educational or government use or channels leased pursuant to 47 USC § 532, unless the franchisee was, in any respect, engaged in determining the editorial content of the program or pre-screened the programming for the purported purpose of banning or regulating indecent or obscene programming.
(C) The indemnity provision includes, but is not limited to the village’s reasonable attorneys’ fees incurred in defending against any such claim, suit or proceeding prior to franchisee assuming such defense. The village shall notify a franchisee of claims and suits as soon as practicable, but failure to give the notice shall not relieve a franchisee of its obligations hereunder. Once a franchisee assumes the defense, the village may, at its option, continue to participate in the defense at its own expense.
(D) Notwithstanding anything to the contrary contained in this code, the village shall not be so indemnified or reimbursed in relation to any amounts attributable to the village’s own negligence, willful misconduct, intentional or criminal acts, including in the performance of its obligations under this code or a franchise agreement.
(`92 Code, § 8-1-105) (Ord. 96-19, passed 10-2-96)