(A) Any permit, license, or agreement accepting rights under this chapter automatically contains the indemnity contained in this section.
(B) These definitions apply to the indemnity provisions of this section:
INDEMNIFIED CLAIMS. All loss, cost, liability, or expense, directly or indirectly arising out of acts or omissions of any person other than an indemnitee that give rise to assertions of indemnitee liability under this section, whether or not the person is a party to this agreement. INDEMNIFIED CLAIMS include attorneys' fees and court costs and include claims arising from property damage and from personal or bodily injury, including death.
INDEMNITEES. The city and its elected officials, officers, employees, agents, and other representatives, collectively, against whom an indemnified claim has been asserted.
INDEMNITOR. Petitioner.
(C) Indemnitor must indemnify indemnitees, individually and collectively, from all indemnified claims.
(D) If indemnitor and one or more indemnitees are finally adjudged to be jointly liable for indemnified claim, indemnitor need not further indemnify the so-adjudged indemnitees from liability arising from the indemnitees' adjudicated share of liability. But despite allegations of indemnitee negligence, the indemnitor must nevertheless defend all indemnitees until final adjudication. Indemnitor may not recover sums previously spent defending or otherwise indemnifying the indemnitee who has been adjudged to be negligent and must continue to indemnify other indemnitees.
(E) There are no third-party beneficiaries of this indemnity other than the category of people and entities included within the definition of indemnitees.
(F) The indemnitor must promptly advise the city in writing of any indemnified claim and must, at its own cost, investigate and defend the indemnified claim. Whether or not the city is an indemnitee as to a particular indemnified claim, the city may require an indemnitor to replace the counsel indemnitor has hired to defend indemnitees. The city may also require an indemnitor to hire specific-named counsel for so long as the named counsel's hourly rates do not exceed the usual and customary charges for counsel handling sophisticated and complex litigation in the locale where the suit is pending. No such actions release or impair the indemnitor's obligations under this indemnity division, including its obligation to pay for the counsel selected by the city. Regardless of who selects the counsel, the counsel's clients are indemnitees, not indemnitor.
(G) In addition to the indemnity required under this section, each indemnitee may, at its own expense, participate in its defense by counsel of its choosing without relieving or impairing the indemnitor's obligations under this indemnity division.
(H) Indemnitor may not settle any indemnified claim without the consent of the city, whether or not the city is an indemnitee as to the particular indemnified claim, unless (A) the settlement will be fully funded by indemnitor and (B) the proposed settlement does not contain an admission of liability or wrongdoing by any indemnitee. The city's withholding its consent as allowed in the preceding sentence does not release or impair indemnitor's obligations of this indemnity division. Even if the city is not an indemnitee as to a particular indemnified claim, the indemnitor must give the city at least 20 days' advance written notice of the details of a proposed settlement before it becomes binding. Any settlement purporting to bind an indemnitee must first be approved by City Council.
(I) Nothing in this section waives governmental immunity or other defenses of indemnitees under applicable law.
(J) If, for whatever reason, a court refuses to enforce this indemnity as written, and only in that case, the parties must contribute to any indemnified claim 5% by the indemnitees and 95% by the indemnitor. Indemnitor need look only to the city for indemnitees' 5% if the city is an indemnified party as to a particular indemnified claim.
(K) This section controls whether or not petitioner's agreement with the city so provides. This section controls even if the agreement provides otherwise, unless an ordinance expressly states that City Council intends to override this section as to the particular use by the particular petitioner.
(L) Entities that may not lawfully grant indemnities or may not lawfully be required to do so by the city do not grant the indemnity provided for in this section by accepting rights under this chapter.
(Ord. 23-1314, passed 5-11-2023)