1. 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, representative, servants and employees against any and all costs, damages, expenses, claims, suits, actions, liabilities, and judgments for damages, including but not limited to, expenses for legal fees, whether suit be brought or not, whether meritorious or frivolous, and disbursements and liabilities incurred by the City and arising out of, directly or indirectly, or related to, the operation of the Operator’s cable television system including but not by way of limitation in connection with the following:

2. 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.

3. 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 cooperate with the reasonable requests of 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 City would be entitled to assert. 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.

4. Governmental immunity. The City is in no manner or means waiving any governmental immunity it may enjoy or any immunity for its agents, officials, servants, attorneys, representatives, and/or employees.

5. Notification of settlements. 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, or common law. In the event that the City fails to accept any bona fide settlement offer which the Operator is willing to accept and pay 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 shall be excused from any further indemnification to, or incurring any additional costs on behalf of, the City with respect to said claim or claims.

6. Additional rights. All rights of the City pursuant to indemnification, insurance, surety bond, 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.

7. 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.

8. 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.

9. 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 shall be a binding obligation of and inure 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 or related to, directly or indirectly, the operation of the cable system.

10. An Operator shall not be held in default under, or in noncompliance with, the provisions of the Ordinance and/or Franchise, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of Operator to anticipate and control. This provision includes work delays caused by waiting for utility providers to service or monitor their utility poles to which the Operator’s Cable System is attached, as well as unavailability of materials and/or qualified labor to perform the work necessary.

11. It is not the City’s intention to subject an Operator to penalties, fines, forfeitures or revocation of a Franchise for violations of the Franchise where the violation was a good faith error that resulted in no or minimal negative impact on the Subscribers within the Service Area, or where strict performance would result in practical difficulties and hardship to the Operator which outweigh the benefit to be derived by the City and/or Subscribers.

12. If any section, subsection, sentence, clause, phrase, or word of this ordinance is for any reason held invalid by the FCC or unconstitutional by any court or competent jurisdiction, such section, subsection, sentence, clause, phrase, or word shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof or of this Ordinance. The Operator shall not be bound by the provisions of any ordinances which are inconsistent with the terms of this Franchise Ordinance. (Ord. 2002-13, repealed and replaced, 2002; Ord. 14-94, amended, 1994)