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<br />SECTION 4. INDEMNITY. <br />A. In consideration of the granting of this Franchise, Company shall, at its sole cost <br />and expense, indemnify and hold the City, and its past and present officers, agents and <br />employees (the "Indemnitees") harmless against any and all liability arising from suits, actions <br />or claims of injury to any person or persons, or damages to any property brought or made for or <br />on account of any death, injuries to, or damages received or sustained by any person or persons <br />or for damage to or loss of property arising out of, or occasioned by Company's intentional <br />and/or negligent acts or omissions in connection with Company's construction, maintenance and <br />operation of Company's System in the Public Right-of-Way, including any court costs, expenses <br />and defenses thereof, when such injury shall have been caused by the negligent act or omissions, <br />or misconduct, of Company or any of its officers, agents or employees. <br />B. This indemnity shall only apply to the extent that the loss, damage or injury is <br />attributable to the negligence or wrongful act or omission of the Company, its officers, agents or <br />employees, and does not apply to the extent such loss, damage or injury is attributable to the <br />negligence or wrongful act or omission of the City, or the City's agents, representatives or <br />employees or any other person or entity. This provision is not intended to create a cause of <br />action or liability for the benefit of third parties but is solely for the benefit of the Company and <br />the City. <br />C. In the event of joint and concurrent negligence or fault of both the Company and <br />the City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance <br />with the laws of the State of Texas without, however, waiving any governmental immunity <br />available to the City under Texas law and without waiving any of the defenses of the parties <br />under Texas law. Further, in the event of joint and concurrent negligence or fault of both the <br />Company and the City, responsibility for all costs of defense shall be apportioned between the <br />City and Company based upon the comparative fault of each. <br />D. In fulfilling its obligation to defend and indemnify City, Company shall have the <br />right to select defense counsel, subject to City's approval, which will not be unreasonably <br />withheld. Company shall retain defense counsel within seven (7) business days of City's <br />written notice that City is invoking its right to indemnification under this Contract. If Company <br />fails to retain Counsel within such time period, City shall have the right to retain defense counsel <br />on its own behalf, and Company shall be liable for all defense costs incurred by City. <br /> <br />4 <br />