5.20.150 Indemnification.
A. Disclaimer of Liability. City shall not at any time be required to pay from its own funds for injury or damage occurring to any person or property from any cause whatsoever arising out of a video service provider’s construction, reconstruction, maintenance, repair, use, operation, condition or dismantling of its video service network or delivery of service.
B. Except where city and any of its associated, affiliated, allied and subsidiary entities, now existing or hereinafter created, and their respective officers, boards, commissions, employees, agents, attorneys, and contractors (hereinafter referred to as “indemnitees”) are solely and grossly negligent, a video service provider shall, at its sole cost and expense, indemnify, defend and hold harmless from and against:
1. Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the indemnitees by reason of: Any act or omission of the video service provider, its personnel, employees, agents, contractors or subcontractors, resulting in economic harm, personal injury, bodily injury, sickness, disease or death to any person or damage to, loss of or destruction of tangible or intangible property, libel, slander, invasion of privacy and unauthorized use of any trademark, trade name, copyright, patent, service mark or any other right of any person, firm or corporation, which may arise in whole or in part out of or be in any way connected with the video service provider’s construction, reconstruction, installation, operation, maintenance or condition of the video service network and any other facilities authorized by or permitted under a video service license (including those arising in whole or in part from any matter contained in or resulting from the transmission of programming over the video service network, but excluding any programming provided by indemnitees which is transmitted over the video service network); the provision of video services or other services authorized by or permitted due to the issuance of a video service license; the release of hazardous substances; or the failure to comply with any federal, state or local statute, ordinance or regulation.
2. Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and other consultants), which are imposed upon, incurred by or asserted against the indemnitees by reason of any claim or lien arising in whole or in part out of work, labor, materials or supplies provided or supplied to a video service provider, its contractors or subcontractors, for the installation, construction, reconstruction, operation or maintenance of a video services network (and any other facilities authorized by or permitted due to the issuance of a video services license) or the provision of video services (or other services authorized by or permitted due to the issuance of a video service license).
3. Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the indemnitees by reason of any financing or securities offering by a video service provider or its affiliates for violations of the common law or any laws, statutes, or regulations of the state of Arizona or the United States, including those of the Federal Securities and Exchange Commission.
C. Assumption of Risk. A video service provider shall undertake and assume for its officers, agents, contractors and subcontractors and employees, all risk of dangerous conditions, if any, on or about any city-owned or controlled property or the public highways, and a video service provider shall indemnify and hold harmless the indemnitees against and from any claim asserted or liability imposed upon the indemnitees for personal injury or property damage to any person (other than from indemnitees’ sole and gross negligence) arising in whole or in part out of a video service provider’s installation, operation, maintenance or condition of a video services network or other facilities or a video service provider’s failure to comply with any Federal, state or local statute, ordinance or regulation.
D. Defense of Indemnitees. In the event any action or proceeding shall be brought against the indemnitees by reason of any matter for which the a video service provider must indemnify the indemnitees pursuant to this Section, a video service provider shall, upon notice from any of the indemnitees, at the video service provider’s sole cost and expense, resist and defend the same with legal counsel selected by the video service provider and consented to by city, such consent not to be unreasonably withheld; provided, however, that a video service provider shall not admit liability in any such matter on behalf of the indemnitees without their written consent and provided further that indemnitees shall not admit liability for, nor enter into any compromise or settlement of, any claim for which they are indemnified hereunder, without the prior written consent of the video service provider.
E. Notice, Cooperation and Expenses. The indemnitees shall give a video service provider prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this section. Nothing herein shall be deemed to prevent the indemnitees at their own expense from cooperating with a video service provider and participating in the defense of any litigation by their own counsel. [Ord. 19-14 § 1; Res. 19-59; Code 2004 § 20-15.]