§ 8. Liability And Indemnification  


Latest version.
  • A. It shall be the responsibility of Franchisee to take adequate measures to protect and defend its Facilities in the Right-of-Way from harm or damage. If Franchisee fails to accurately or timely locate Facilities when requested, it has no claim for cost or damages against the City and its authorized contractors unless such party is responsible for the harm or damage by its negligence or intentional conduct. Franchisee shall be responsible to the City and its agents, representatives and authorized contractors for all damages including, but not limited to, delay damages, repair costs, down time, construction delays, penalties or other expenses of any kind arising out of the failure of Franchisee to perform any of its obligations under this Franchise except to the extent the damaged party is responsible for the harm or damage by its negligence or intentional conduct. Provided, however, the City and its authorized contractors shall be responsible to take reasonable precautionary measures including calling for utility locations and observing marker posts when working near the Facilities.

    B. Franchisee shall hold and save and defend the City, its officers, employees, agents, and authorized contractors, harmless from and against all claims, damages, expense, liability, and costs including attorney fees, to the extent occasioned in any manner by the failure of Franchisee to perform any of its obligations under this Franchise, except to the extent the City, its officers, employees, agents, and authorized contractors are responsible for the harm or damage as a result of its negligence or intentional conduct. In the event a claim shall be made or an action shall be instituted against the City growing out of any such failure by Franchisee to perform its obligations under this Franchise then, upon notice by the City to Franchisee, Franchisee shall assume liability for the defense of such actions at the cost of Franchisee, subject to the option of the City to appear and defend, at its own cost, any such case.

    C. Franchisee agrees that it will conduct its activities in the Right of Way in compliance with all applicable environmental laws. Franchisee agrees to defend, indemnity, and hold the City harmless from and against any and all claims, causes of action, demands, and liability, including, but not limited to damages, costs, expenses, assessments, penalties, fines, losses, judgments, and attorney fees that the City may suffer due to the possible existence or the discovery of any hazardous substance in the Right of Way or the migration of any hazardous substance to other property or released into the environment to the extent such arises out of Franchisee's past, present, or future negligent or unlawful activities in the Right of Way. This Paragraph shall survive the termination of this Lease.