5.19.170 Indemnification.
a. Scope of Indemnity. Grantee shall, at its sole cost and expense, indemnify, hold harmless, and defend the city and its officers, boards, commissions, agents, and employees against any and all claims, including, but not limited to, third party claims, suits, causes of action, proceedings, and judgments for damages or equitable relief arising out of the construction, operation or repair of its cable system, regardless of whether the act or omission complained of is authorized, allowed, or prohibited by this ordinance or a franchise granted pursuant to this ordinance; provided, however, the grantee will not be obligated to indemnify the city should the city intervene in any proceeding regarding the grant of a franchise pursuant to this ordinance. Without limiting in any way a grantee’s obligation to indemnify the city and its officers, boards, commissions, agents, and employees, as set forth above, this indemnity provision also includes damages and liabilities such as:
1. To persons or property, in any way arising out of or through the acts or omissions of the grantee, its contractors, subcontractors and their officers, employees, or agents, or to which the grantee’s negligence shall in any way contribute;
2. Arising out of any claim for invasion of the right of privacy; for defamation of any person, firm or corporation; for the violation or infringement of any copyright, trademark, trade name, service mark, or patent; for a failure by the grantee to secure consents from the owners or authorized distributors of programs to be delivered by the cable system; or for violation of any other right of any person, provided however that a grantee will not be required to indemnify the city for any claims arising out of use of PEG access channels by the city and/or its designated access providers;
3. Arising out of a grantee’s failure to comply with the provisions of any federal, state or local statute, ordinance, rule or regulation applicable to the grantee with respect to any aspect of its business to which a franchise agreement applies; and
4. Arising from any third party suit, action or litigation, whether brought by a competitor to a grantee or by any other person or entity, whether such person or entity does or does not have standing to bring such suit, action or litigation if such action (1) challenges the authority of the city to issue a franchise agreement to a grantee; or (2) alleges that, in issuing a franchise agreement to a grantee, the city has acted in a disparate or discriminatory manner.
b. Duty to Give Notice and Tender Defense. The city shall give the grantee timely written notice of any claim or of the commencement of any action, suit or other proceeding covered by the indemnity in this section. In the event any such claim arises, the city or any other indemnified party shall tender the defense thereof to the grantee and the grantee shall have the obligation and duty to defend, settle or compromise any claims arising thereunder, and the city shall cooperate fully therein. Grantee shall accept or decline the tender within thirty (30) days. Grantee shall reimburse reasonable attorneys’ fees and costs incurred by the city during the thirty (30) day period in which the grantee accepts or declines tender. In the event that the grantee declines defense of the claim in violation of subsection (a) of this section, the city may defend such claim and seek recovery from the grantee its expenses for reasonable attorneys’ fees and disbursements, including expert witness fees, incurred by the city for defense and in seeking such recovery. (Ord. M-3371, 1998)