§ 66.0121 — Indemnification

§66.0121 Indemnification

(a) Franchisee agrees to defend, with counsel to be agreed upon by both parties, indemnify, and hold harmless, City and its agents, officers, servants, and employees from and against any and all claims asserted or liability established for damages or injuries to any person or property, including injury to City’s employees, agents, or officers which arise from, or are connected with, or are caused or claimed to be caused by acts or omissions of franchisee, or their agents, officers or employees, in the performance of the nonexclusive franchise agreement, or in performing the work or services therein, and all costs and expenses of investigating and defending against same; provided, however, that franchisee’s duty to indemnify and hold harmless shall not include any claims or liability arising from the established active negligence, sole negligence, or sole willful misconduct of the City, its agents, officers, or employees. (b) Except for any Disposal Site owned or operated by the City, including without limitation the Miramar Landfill located adjacent to Highway 52 between Interstate 805 and Interstate 15 (“Miramar Landfill”), Franchisee shall indemnify, defend, with counsel to be agreed upon by both parties, protect and hold harmless the City, its officers, employees, agents, assigns, and any successor or successors to the City’s interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorneys’ and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, the City or its officers, employees or agents arising from or attributable to any repair, cleanup, or detoxification, or preparation and implementation of any removal, remedial, response, closure, or other plan (regardless of whether undertaken due to government action) concerning any hazardous substance or hazardous wastes at any disposal or processing facility where solid waste is or has been transported, transferred, processed, stored, disposed of, or has otherwise come to be located by franchisee or its activities pursuant to an agreement resulting in a release of any hazardous substance into the environment. (b) Without limiting the substance of this indemnification, the foregoing indemnity is intended to operate as an agreement pursuant to 107(e) of (CERCLA), 42 U.S.C. 9607(e), and California Health and Safety Code § 25364, to defend, protect, hold harmless) and indemnify the City from all forms of liability under CERCLA, other applicable statutes or common law for any and all matters addressed in this provision. d) Notwithstanding anything to the contrary in this agreement, upon the effective date of the agreement, the City shall indemnify, defend with counsel to be agreed upon by both parties, protect and hold harmless Franchisee, its officers, directors, employees, agents, assigns and any successors to Franchisee’s interest, from and against all claims, actual damages (including, but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorneys and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by or asserted against, Franchisee or its officers, employees or agents arising from or attributable to any repair, cleanup or detoxification or preparation and implementation of any removal, remedial, response, closure or other plan (regardless of whether undertaken due to government action) concerning, any hazardous substance or hazardous waste arising from any Disposal Site owned or operated by the City, including without limitation the Miramar Landfill. (e) Without limiting the substance of this indemnification, the foregoing indemnity is intended to operate as an agreement pursuant to 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also know as “Superfund,” 42 USC § 9607(e), and California Health and Safety Code § 25374, to defend, protect, hold harmless and indemnify Franchisee from all forms of liability under CERCLA, other applicable statutes or common law for any and all matters addressed in this provision. This provision shall survive the expiration of the term of this agreement.

(“Indemnification” added 10–21–1996 by O–18353 N.S.)