§ 79-36. Indemnification.

(a)

Disclaimer of liability. The village shall not at any time be liable for injury or damage occurring to any person or property from any cause whatsoever arising out of the construction, maintenance, repair, use, operation, condition or dismantling of the grantee's telecommunication system and due to the act or omission of any person or entity other than the village or those persons or entities for which the village is legally liable as a matter of law.

(b)

Indemnification. The grantee shall, at its sole cost and expense, indemnify and hold harmless the village, the commission, all associated, affiliated, allied and subsidiary entitles of the village, now existing or hereinafter created, and their respective officers, boards, commissions, employees, agents, attorneys, and contractors (hereinafter referred to as "indemnities"), from and against:

(1)

Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the indemnities by reason of any act or omission of the grantee, its personnel, employees, agents, contractors or subcontractors, resulting in personal injury, bodily injury, sickness, disease or death to any person or damage to, loss of or destruction of tangible or intangible property, libel, slander, invasion of privacy and unauthorized use of any trademark, tradename, copyright, patent, service mark or any other right of any person, firm or corporation, which may arise out of or be in any way connected with the construction, installation, operation, maintenance or condition of the telecommunications system caused by grantee, its subcontractors or agents or the grantee's failure to comply with any federal, state or local statute, ordinance or regulation.

(2)

Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and other consultants), which is imposed upon, incurred by or asserted against the Indemnities by reason of any claim or lien arising out of work, labor, materials or supplies provided or supplied to the grantee, its contractors or subcontractors, for the installation, construction, operation or maintenance of the telecommunications system caused by grantee, its subcontractors or agents and, upon the written request of the commission shall cause such claim or lien to be discharged or bonded within 15 days following such request.

(3)

Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the indemnities by reason of any financing or securities offering by grantee or its affiliates for violations of the common law or any laws, statutes, or regulations of the State of Wisconsin or United States, including those of the Federal Securities and Exchange Commission, whether by the grantee or otherwise; excluding therefrom, however, claims which are solely based upon and shall arise solely out of information supplied by the village to the grantee in writing and included in the offering materials with the express written approval of the village prior to the offering.

(c)

Assumption of risk. The grantee undertakes and assumes for its officers, agents, contractors and subcontractors and employees, all risk of dangerous conditions, if any, on or about any city owned or controlled property, including public rights-of-way, and the grantee hereby agrees to indemnify and hold harmless the indemnities against and from any claim asserted or liability imposed upon the indemnities for personal injury or property damage to any person arising out of the installation, operation, maintenance or condition of the telecommunications system or the grantee's failure to comply with any federal, state or local statute, ordinance or regulation.

(d)

Defense of indemnities. In the event any action or proceeding shall be brought against the indemnities by reason of any matter for which the indemnities are indemnified hereunder, the grantee shall, upon notice from any of the indemnities, at the grantee's sole cost and expense, resist and defend the same with legal counsel mutually acceptable to the village attorney of the Village of Mukwonago and grantee provided further, however, that the grantee shall not admit liability in any such matter on behalf of the indemnities without the written consent of the village attorney of the Village of Mukwonago or village attorney's designee.

(e)

Notice cooperation and expenses. The village shall give the grantee prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this section. Nothing herein shall be deemed to prevent the village from cooperating with grantee and participating in the defense of any litigation by the village's own counsel. The grantee shall pay all reasonable expenses incurred by the village in defending itself with regard to any such actions, suits or proceedings. These expenses shall include all out-of-pocket expenses such as attorney fees and shall also include the reasonable value of any services rendered by or on behalf of the village attorney if such service is determined necessary and appropriate by the village attorney and the actual expenses of the village's agents, employees or expert witnesses, and disbursements and liabilities assumed by the village in connection with such suits, actions or proceedings. No recovery by the village of any sum under the letter of credit shall be any limitation upon the liability of the grantee to the village under the terms of this section, except that any sum so received by the village shall be deducted from any recovery which the village might have against the grantee under the terms of this section.

(f)

Nonwaiver of statutory limits. Nothing in this agreement is intended to express or imply a waiver of the statutory provisions, of any kind or nature, as set forth in W.S.A. § 893.80 et seq., including the limits of liability of the village as exists presently or may be increased from time to time by the legislature.

(Ord. No. 682, § 16, 12-4-01)