§ 1004-2.418. Indemnity; liability.

(a)

Indemnity. To the fullest extent permitted by law, a grantee shall indemnify, defend and hold harmless the county, and the county's boards, commissions, officers, agents and employees, contractors, agents, attorneys and representatives from and against any and all:

(1)

Claims, losses, damages (including injury or death), liabilities, suits, costs, and expenses, including reasonable attorneys' fees, in any way connected to or arising from any operations under the franchise granted or the existence, reconstruction, design, construction, use, operation, or maintenance of the grantee's franchise property;

(2)

Environmental damage claims;

(3)

Claims arising from any damage or injury suffered by any person by reason of any excavation or obstruction being improperly guarded or secured during any work authorized pursuant to the franchise or the failure or neglect of the grantee to properly perform, maintain, or protect any phase of the work;

(4)

Claims, actions, or proceedings against the county or the county's agents, officers, or employees to attack, set aside, void, or annul any approval of a pipeline franchise or other discretionary actions in furtherance of the goals of this chapter, or to impose personal liability against the county's agents, officers, or employees, on the ground that the county failed to comply with California Environmental Quality Act (Public Resources Code §§ 21000, et seq.);

(5)

Any claims arising from the acts or omissions of subcontractors of the grantee without regard to the subcontractor's insurance or lack thereof; and

(6)

All other claims, losses, liabilities, causes of action, demands, damages, suits, judgments, debts, costs, claims for payment, contribution or indemnity and expenses (including but not limited to attorney's fees and costs) and liens of every kind and nature, resulting from or attributable to (A) grantee's use or occupation of any facility, or (B) any failure to comply with any applicable law or governmental regulation, directive or order; or (C) arising from the release of any contaminant on or from any facility, whether the release is caused by grantee or any third party; or (D) grantee's failure to fully remediate or respond to any environmental condition on, under or emanating from any facility in accordance with applicable law or as directed by the county; or (e) the performance of any remedial work, including all remediation costs.

Notwithstanding the foregoing, the county is not entitled to indemnity under this Section 1004-2.418(a) to the extent any losses, claims, damages, or liabilities are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of the county. Nothing in this section shall be construed as waiving a grantee's right to seek recovery from a third party other than the county or an agency of the county for indemnified claims.

(b)

Liability. A grantee shall be fully and strictly liable to the county for any damage or injury incurred by the county in connection with the use of the franchise property. Any damage to any public street, road, or other public improvement in a county highway that is directly or indirectly caused by a grantee's acts or omissions shall be promptly repaired by the grantee, at its sole cost and expense, to the complete satisfaction of the county. If a grantee fails to comply with any repairs ordered by the county within the time specified, then the road commissioner may undertake and complete all repairs at the grantee's sole cost and expense. Nothing in this section shall be construed as waiving a grantee's right to seek recovery from a third party other than the county or an agency of the county for these liabilities.

(c)

Counsel. The county and the other parties entitled to be indemnified by a grantee hereunder shall have the right to select attorneys of its own choice to represent it at the grantee's expense.

(d)

Documents. In satisfying the obligations under this section, a grantee shall provide the county with copies of all communications, filings, writings, photographs and materials given to or received from any person, entity or agency (to the extent not protected by attorney-client privilege), in connection with any claim, order, request or demand described in this section, or of any cleanup or remedial work conducted on any facility, on or in the vicinity of any facility, and shall notify the county of and permit a county representative to attend any meetings or oral communications relating to any claim, order, request or demand, or of any cleanup or remedial work.

(e)

County Costs. Without limiting the generality of any of the foregoing, a grantee's indemnification obligations include all costs incurred by the county, including all remediation costs and all other costs for any investigation and remedial work required by applicable law or otherwise necessary to responding to any claims, as well as all attorney's fees and consultant fees incurred by the county in responding to any claims and the county's consequential damages. If the county seeks to enforce its rights to be indemnified by a grantee as provided in this ordinance, the grantee shall pay for all costs and expenses, including without limitation attorneys' fees, incurred by the county in enforcing, protecting, maintaining, and preserving its rights to be indemnified under this ordinance.

(f)

Performance of Remedial Work. Without waiving any rights, at its option, the county may, upon failure of the grantee to promptly perform all necessary remedial work, commence the work itself and require the grantee to pay, pursuant to the foregoing indemnity, all remediation costs and other costs incurred by the county.

(g)

No County Obligation. The grant of rights to the county in subsection (f) of this section: (1) is not intended to and shall not be construed to impose any obligation on the county to exercise the rights granted to a grantee or otherwise investigate, monitor or clean up any environmental condition at any facility; and (2) does not authorize the county to operate grantee's facilities.

(h)

Reimbursement. If any emergency response costs are incurred by the county in connection with any damages caused in whole or in part by a grantee or its franchise property, the grantee shall reimburse those costs within thirty days after being invoiced.

(Ord. No. 2013-19, § II, 8-13-13)