|
Section 12. Claims for Damages. In the construction, installation, repair, operation, and maintenance of
<br />its structures and facilities, LEVEL 3 shall use reasonable and appropriate precautions to avoid damage
<br />to persons or property. LEVEL 3 shall indemnify and save harmless the COUNTY from all claims, actions
<br />or damages of every kind or description, including reasonable attorney's and expert witness fees, which
<br />may accrue to or be suffered by any person or persons, corporation or property to the extent caused in
<br />part or in whole by any negligent act or omission or willful misconduct of LEVEL 3, its officers, agents,
<br />servants or employees, carried on in the furtherance of the rights, benefits, and privileges granted to
<br />LEVEL 3 by this franchise. In the event any claim or demand is presented to or filed with the COUNTY
<br />which gives rise to LEVEL 3's obligation pursuant to this section, the COUNTY shall within a reasonable
<br />time notify LEVEL 3 thereof and LEVEL 3 shall have a right, at its election, to settle or compromise such
<br />claim or demand. In the event any claim or action is commenced in which the COUNTY is named a party,
<br />and which suit or action is based on a claim or demand which gives rise to LEVEL 3's obligation pursuant
<br />to this section, the COUNTY shall promptly notify LEVEL 3 thereof, and LEVEL 3 shall, at its sole cost
<br />and expense, defend such suit or action by attorneys of its own election. In defense of such suit or action,
<br />LEVEL 3 may, at its election and at its sole cost and expense, settle or compromise such suit or action.
<br />This section shall not be construed to require LEVEL 3 to: (i) protect and save the COUNTY harmless
<br />from any claims, actions or damages; (ii) settle or compromise any claim, demand, suit, or action; (iii)
<br />appear in or defend any suit or action; or, (iv) pay any judgment or reimburse the COUNTY's costs and
<br />expenses (including reasonable attorney's fees), to the extent such claim arises out of the sole
<br />negligence of the COUNTY. To the extent of any concurrent negligence between LEVEL 3 and the
<br />COUNTY, LEVEL 3's obligations under this paragraph shall only extend to its share of negligence or fault.
<br />The COUNTY shall have the right at all times to participate through its own attorney in any suit or action
<br />which arises out of any right, privilege, and authority granted by or exercised pursuant to this franchise
<br />when the COUNTY determines that such participation is required to protect the interest of the COUNTY
<br />or the public. Such participation by the COUNTY shall be at the COUNTY's sole cost and expense.
<br />Section 13. Severability. If any section, sentence, clause or phrase of this Franchise is held to be
<br />invalid or unconstitutional by a court of competent jurisdiction, the COUNTY may, at its sole option, deem
<br />the entire franchise to be affected and thereby nullified. However, in the event that a determination is
<br />made that a section, sentence, clause, or phrase in this Franchise is invalid or unconstitutional, the
<br />COUNTY may elect to treat the portion declared invalid or unconstitutional as severable and enforce the
<br />remaining provisions of this Franchise; provided that, if the COUNTY elects to enforce the remaining
<br />provisions of the Franchise, LEVEL 3 shall have the option to terminate the franchise.
<br />Section 14. Indemnification. LEVEL 3, its successors and assigns, agrees and covenants to indemnify
<br />and hold harmless the County of Kittitas from and against any and all third party liability, loss, cost,
<br />damages, whether to persons or property, or expense of any type or nature, including reasonable
<br />attorney's fees and expert witness fees, to the extent it arises from any negligent act or omission or willful
<br />misconduct of LEVEL 3, its successors and assigns arising from or connected to LEVEL 3, work under
<br />this Franchise Agreement, provided however, that in case any suit or action is instituted against the
<br />County by reason of any such damage or injury, the COUNTY shall: (i) cause written notice thereof to be
<br />given unto LEVEL 3; and (ii) provide all reasonably requested assistance in defense or settlement of such
<br />claim at LEVEL 3's expense; and (iii) retain the right to control the defense of settlement or such claims.
<br />Section 15. Effective Date. This Franchise shall take effect and be in full force and effect five (5) days
<br />after publication of the attached summary, which is hereby approved.
<br />This franchise is not valid until accepted and signed by Level 3 Communications, LLC.
<br />DATED this day of , at Ellensburg, Washington.
<br />ATTEST:
<br />BOARD OF COUNTY COMMISSIONERS
<br />KITTITAS COUNTY, WASHINGTON
<br />Laura Osiadacz, Chairman
<br />FRANCHISE PAGE 6 OF 6
<br />
|