By applying for and being issued a Certificate of Registration with the City a provider agrees, or by accepting a permit a provider is required and agrees, 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, excepting only negligent acts or omissions that are willful and wanton or intentional torts and for which immunity is not provided by the Ohio Revised Code for such acts, omissions, or intentional torts. This exception shall not extend to acts, omissions, or intentional torts occurring as a result of or in response to an emergency. A provider 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 or 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 chapter is not, as to third parties, a waiver of any defense or immunity otherwise available to the provider or to the City, and the provider, 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 exercises of the above shall be consistent with, but not limited to, the following:
(a) To the fullest extent permitted by law, each provider shall, at its 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, workers' compensation claims against the City or others), causes of action, liability, and judgments for injury or damages, including, but not limited to, expenses for reasonable legal fees and disbursements assumed by the City related to the following:
(1) Injuries or damages to persons or property, in any way arising out of or through the acts or omissions of provider, its subcontractors, agents or employees attributable to the occupation by the provider of the rights of way, to which provider's negligence shall in any way contribute, and regardless of whether the City's negligence or the negligence of any other party shall have contributed to such claim, cause of action, judgment, injury or damage.
(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 and corporation by the provider, by excluding claims arising out of or related to City programming.
(3) Arising out of provider's failure to comply with the provisions of any law applicable to the provider.
(b) The foregoing indemnification is conditioned upon the City:
(1) Giving provider reasonable notice of any claim or the commencement of any action, suit or proceeding for which indemnification is sought;
(2) Affording the provider the opportunity to fully participate in any discussions concerning any compromise, settlement, or other resolution or disposition of any claim or proceeding subject to indemnification, as well as the sole right to approve any compromise or settlement or financial commitment, which approval shall not be unreasonably withheld;
(3) Cooperating in the defense of such claim and making available to the provider 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 shall pay all reasonable fees and expense of such separate counsel if employed.
(Ord. 00-07. Passed 8-21-00.)