By accepting a permit under this subchapter, a right-of-way user or permittee agrees as follows.
(A) By reason of the acceptance of a registration or the grant of a right-of-way permit, the city does not assume any liability:
(1) For injuries to persons, damage to property, or loss of service claims by parties other than the right-of-way user or the city; or
(2) For claims or penalties of any sort resulting from the installation, presence, maintenance or operation of facilities by a right-of-way user or activities of right-of-way users.
(B) As a condition for issuing a permit for work on a public right-of-way, the city requires the permittee to indemnify the city against liability claims. The city requires indemnification when a permit authorizes a permittee to obstruct or excavate on or within a public right-of-way to install, maintain or repair the permittee’s facilities.
(1) The city requires the permittee to defend, indemnify and hold harmless the city from all liability or claims of liability for bodily injury or death to persons, or for property damage, in which the claim:
(a) Alleges a negligent or otherwise wrongful act or omission of the permittee or its employee, agent or independent contractor in installing, maintaining or repairing the permittee’s facilities; and alleges that the city is liable, without alleging any independent negligent, or otherwise wrongful, act or omission on the part of the city; or
(b) Is based on the city’s negligent or otherwise wrongful, act or omission in issuing the permit or in failing to properly or adequately inspect or enforce compliance with a term, condition or purpose of the permit granted to the permittee.
(2) A permittee is not required to indemnify the city for losses or claims occasioned by the negligent or otherwise wrongful act or omission of the city, except:
(a) To the extent authorized in division (B)(1)(b) above regarding the issuance of a permit or the inspection or enforcement of compliance with the permit; or
(b) When otherwise provided in an applicable franchise agreement.
(3) A defense or indemnification of the city by a permittee is deemed not to be a waiver of any defense or immunity otherwise available to the city.
(4) A permittee, in defending any action on behalf of the city, is entitled to assert every defense or immunity that the city could assert in its own behalf.
(5) The city authorization to proceed with excavation or obstruction in the right-of-way pursuant to notice system is deemed a permit for the purpose of this part.
(Ord. 732, passed 4-5-99)