Indemnification. Any person performing excavation or a ROW user as
a condition of use of the right-of-way shall at its sole cost and
expense fully indemnify, protect, defend (with counsel acceptable
to the City), and hold harmless the City, its municipal officials,
officers, employees, and agents, from and against any and all claims,
demands, suits, proceedings, and actions, liability, and judgment
by other persons for damages, losses, costs, and expenses, including
attorney fees, arising, directly or indirectly, in whole or in part,
from the action or inaction of the person performing excavation or
ROW user, its agents, representatives, employees, contractors, subcontractors,
or any other person for whose acts the person performing excavation
or ROW user may be liable, in constructing, operating, maintaining,
repairing, restoring, or removing facilities or other structures,
or use of the right-of-way or the activities performed, or failed
to be performed, by the person performing excavation or ROW user under
this Chapter or applicable law, or otherwise, except to the extent
arising from or caused by the sole or gross negligence or willful
misconduct of the City, its elected officials, officers, employees,
agents, or contractors. Nothing herein shall be deemed to prevent
the City or any agent from participating in the defense of any litigation
by their own counsel at their own expense. Such participation shall
not under any circumstances relieve the person from the duty to defend
against liability or its duty to pay any judgment entered against
the City or its agents. This indemnification shall survive the expiration
or termination of any ROW agreement, license, or ROW permit for a
period of five (5) years after the effective date of expiration or
termination. Provided, however, that in accordance with Section 67.5121(2),
RSMo., a ROW user which is a wireless provider, as defined by Section
67.5111, RSMo., for and in relation to that wireless providers operation
of "small wireless facility" as defined in the Uniform Small Wireless
Facility Deployment Act within the ROW shall only indemnify and hold
the City, its officers, and employees, harmless against any damage
or personal injury caused by the negligence of the ROW user, its employees,
agents, or contractors. This exception shall only apply to the ROW
user's "small wireless facilities" and shall not otherwise alter
the obligations of a ROW user to provide indemnification to the City
for any other activities or operations.