Section 5.33.150 Liability and indemnification

A. Indemnification of City in Franchise Operation. The operator shall fully indemnify, defend and hold harmless the City, its officers, boards, commissions, elected officials, agents, attorneys, representatives, servants and employees against any and all costs, damages, expenses, claims, suits, actions, liabilities and judgments for damages, including but net limited to, expenses for legal fees, whether suit be brought or not, and disbursements and liabilities incurred by the City and arising out of the operation of the operator's cable television system in connection with the following:

1. Damage to persons or property, in any way arising out of or through the acts or omissions of the operator, its servants, officials, agents, attorneys, representatives or employees or to which the operator's negligence or that of its servants, agents, officials, attorneys, representatives or employees shall in any way contribute;

2. Requests for relief in connection with any programming carried on the operator's cable system arising out of any claim for invasion of the right of privacy; for defamation of any person, firm or corporation; for the infringement or violation of any copyright, trademark, trade name, service mark or patent; or of any other right of any person, firm, or corporation, excluding claims arising out of or relating to the programming carried on the Public, Education, and Government Access channel unless such programming is provided by the operator according to section 7 (D) of this ordinance; and3. Any and all claims arising out of the operator's failure to comply with the provisions of this franchise ordinance or any federal, state or local law, ordinance or regulation applicable to the operator or the network.

B. Defense of the City. If suit for which the operator has agreed to indemnify the City as set forth in the preceding subsection is brought or threatened against the City, either independently or jointly with the operator, or with any other person or municipality; the operator, upon timely written notice given by the City, shall defend the City at the cost of the operator. No right of indemnification shall be effective until such notice and a copy of the suit or other action for which indemnification is sought is provided to the operator. if final judgment is obtained against the City, either independently or jointly with the operator or any of the defendants, the operator shall indemnify the City and pay such judgment with all costs and satisfy and discharge the same as against the City in accordance with this section.

C. Cooperation in Defense of City. In the event that the City elects to invoke its right of indemnification as set forth in this ordinance, the City will use its best efforts to cooperate fully with the operator in defending the City against any and all claims for which indemnification is sought. The operator shall be subrogated to all rights of the City and, in defending the City, shall be entitled to assert any defense to any third party claim which the Citywould be entitled to assert. A waiver of any rights or defenses by the City shall excuse the operator from all indemnification obligations under this ordinance. The City may, in its sole discretion, elect to conduct its own defense at its own expense by giving the operator written notice of the City's intent to provide its own defense and, upon such election, the operator shall have no further duty to indemnify the City for any costs or liabilities with respect to such claims.

E. Notification of Settlement. The operator shall make no settlement in any matter identified above without the City's written consent, which shall not be unreasonably withheld. Failure to inform the City of settlement shall constitute a breach of this franchise ordinance and the City may seek any redress available to it against the operator whether set forth in this franchise ordinance or under any other municipal, state or federal laws. In the event that the City fails to accept any bona fide settlement offer which the operator is willing to accept as full settlement of any claim or claims for which it is required to indemnify the City, the operator's indemnification liability to the City with respect to said claim or claims under this ordinance shall be limited to the terms of the settlement offer and the operator shell be excused from any further indemnification to, or incurring any additional costs on behalf of, the City with respect to said claim or claims.

F. A Franchise shall not in any manner prevent the City from entering into other similar agreements or granting other or further franchises in, under, on, across, over, through, along or below any of said public ways of the City. However, the City shall exercise reasonable care to avoid permitting any such future franchisee from physically or electronically interfering with the Franchisee s communication facilities. In the event that such physical interference or disruption occurs, the City Engineer may assist the Franchisee and such subsequent franchisee in resolving the dispute. In no event shall the City be financially liable for any interference resulting from the actions of another franchisee. This Franchise shall in no way prevent or prohibit the City from using any of its public ways or affect its jurisdiction over them or any part of them, and the City shall retain power to make all necessary changes, relocations, repairs, maintenance, establishment, improvement, dedication of the same as the City may deem fit, including the dedication, establishment, maintenance, and improvement of all new public ways all in compliance with this franchise.

G. Additional Rights. All rights of the City pursuant to indemnification, insurance, surety bond, letter of credit or performance bonds, as provided for by this franchise ordinance, are in addition to all other rights the City may have under this franchise ordinance or any other ordinance, rule, regulation or law.

H. Exercise of Rights. The City's or the operator's exercise of or failure to exercise any rights pursuant to any section of this franchise ordinance shall not affect in any way the right of the City or the operator subsequently to exercise any such rights or any other right of the City or the operator under this franchise ordinance or any other ordinance, rule, regulation or law.

I. Reasonable Indemnification. It is the purpose of this section to provide reasonable indemnification to the City under the terms and conditions expressed and, in the event of a dispute, this section shall be construed (to the greatest extent permitted by law) to provide for the indemnification of the City by the operator in accordance with its terms.

J. Validity of Section. The provisions of this section shall not be dependent or conditioned upon the validity of this franchise ordinance or the validity of any of the procedures or agreements involved in the renewal of the franchise, but shall be and remain a binding right and obligation of the City and the operator even if part or all of this franchise ordinance, or the grant or renewal of the franchise, is declared null and void in a legal or administrative proceeding. It is expressly the intent of the operator and the City that the provisions of this section survive any such declaration and shah be a binding obligation of and insure to the benefit of the operator and the City and their respective successors and assigns (if any) with respect to any claims arising out of the operation of the cable system covering the period of time during which the operator provided cable service within the City.

K. General Capability. Because technology is rapidly changing, it is difficult for the City to set a standard by which the operator will upgrade and maintain the system in the City. Therefore, insofar as it is technically and economically feasible, operators shall upgrade and maintain the system quality equal to or better than the best system that the grantee provides to any community in the Basin (Tri-County area) where it has a franchise.