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A. The franchisee shall indemnify to the fullest extent permitted by law, and defend and hold the city, and its Council members, employees, remediation consultants, environmental consultants, contractors, agents and attorneys free and harmless from and against all claims arising from or in any way related to the franchise or activities conducted by or on behalf of franchisee. This indemnification obligation shall include payment by franchisee of any and all attorneys’ fees and experts’ costs incurred by any of the foregoing indemnitees.
B. The city and the other parties indemnified herein shall have the right to approve the attorneys selected by franchisee to represent them. In the event franchisee does not provide attorneys acceptable to the indemnified parties, the indemnified parties may select attorneys of their choice, so long as the attorney’s rates do not exceed the greater of the rates the indemnified parties pay for other legal services, or the amounts the franchisee pays for its legal services in the matter.
C. The indemnity provided herein shall survive the expiration or other termination of the franchise.
(Ord. 1152, passed 5-17-11)
Franchisee shall indemnify any affected property owner for any reduction or diminution in value in real property occasioned by an environmental condition or release found to be the result of franchisee's use and operations of its facilities and the exercising of the rights granted under this franchise. Diminution in property value shall be determined by an independent appraiser. The selected appraiser shall not be a party to a contract between the franchisee or property owner. The selected appraiser shall be licensed with the California Office of Real Estate Appraisers.
(Ord. 1152, passed 5-17-11; Am. Ord. 1159, passed 5- 1-12; Am. Ord. 1160, passed 5-1-12)
On or before commencement of any franchise operations, the franchisee shall obtain or provide satisfactory evidence of having policies of comprehensive general liability, automobile liability, general contractor’s pollution legal liability and worker’s compensation insurance from companies admitted to transact business in the State of California by the Insurance Commission of California, and with a Best’s rating of A:VIII or better.
A. The policy of commercial general and automobile liability insurance shall:
1. Be issued to franchisee and name the city, and its officers, agents, and employees, as additional insureds;
2. Defend and indemnify the insureds against all liability for personal injury, bodily injury, wrongful death and property damage arising from activities conducted pursuant to the franchise by providing coverage therefor, including but not limited to, coverage for acts or omissions of franchisee and the agents, servants and employees thereof, committed in the conduct of franchise operations;
3. Provide combined single limit liability insurance in the amount of six million dollars ($6,000,000);
4. Be noncancelable without thirty (30) days’ prior written notice thereof provided to the City Clerk.
B. The franchisee’s pollution legal liability policy shall:
1. Be issued to the franchisee and name the city, and its officers, agents, and employees, as additional insureds;
2. Defend and indemnify the insureds against all liability for personal injury, bodily injury, wrongful death and property damage (including but not limited to damages and costs relating to site remediation) caused by pollution conditions, including, but not limited to, any release or environmental condition, arising from operations performed by or on behalf of the franchisee;
3. Provide a combined single limit in the amount of ten million dollars ($10,000,000);
4. Provide coverage on an occurrence basis, and not on a claims made basis;
5. Provide coverage for damage to the owned premises of any insured;
6. Be noncancelable without thirty (30) days’ prior written notice thereof provided to the City Clerk.
C. The policy of workers compensation insurance shall:
1. Have been previously approved as to substance and form by the California Insurance Commissioner;
2. Cover all employees of franchisee who in the course and scope of their employment are to conduct or do work pursuant to the franchise operations;
3. Provide for every benefit and payment presently or hereinafter conferred by Division 4 of the Cal. Labor Code upon an injured employee, including the vocational rehabilitation and death benefits;
4. Be noncancelable without thirty (30) days’ prior written notice thereof provided directed to the City Clerk.
D. The franchisee shall file with the City Clerk certified copies of such policies of insurance for each of the required policies with required endorsements executed by the company issuing the policy, certifying that the policy is in force and providing the following information with respect to the policy:
1. The policy number;
2. The date upon which the policy will become effective and the date upon which it will expire;
3. The names of the named insured and any additional insured;
4. The subject of the insurance;
5. The type of coverage provided by the insurance;
6. The amount of limit of coverage provided by the insurance;
7. A description of all endorsements that form a part of the policy.
E. As an alternative to commercial insurance from franchisee, the City Council may approve, in its sole discretion, and based upon satisfactory evidence of sufficient financial responsibility being provided by franchisee, a program of self-insurance or self-insured retention, meeting the following requirements:
1. The city shall be provided at least the same defense of suits and payments of claims as would be provided by the first dollar of commercial insurance.
2. A formal declaration to be self-insured for the type and amount of coverage indicated in this chapter. This can be in the form of a corporate resolution or a certified statement from an authorized representative of the franchisee.
3. The exact wording of the program of self-insurance shall be approved by the City Attorney. The City Council may, in its sole discretion and upon sixty (60) days’ written notice to the franchisee, rescind its approval of the program of self-insurance. In such case, the franchisee shall provide the insurance otherwise required by this section before expiration of the sixty (60) day notice period.
F. The franchisee shall not commence operations until franchisee has complied with the aforementioned provisions of this chapter. The franchisee shall immediately cease operations if the franchisee fails to maintain the policies in full force and effect.
(Ord. 1152, passed 5-17-11)
On or before the effective date of the ordinance, the franchisee shall file and thereafter at all times during the life of the franchise keep on file with the City Clerk a corporate surety bond approved by the City Attorney running to the city in the penal sum of one hundred thousand dollars ($100,000), with a surety licensed to do business in California and approved by the City Engineer. The bond shall provide that franchisee shall well and truly observe, fulfill and perform each condition of the franchise and that in case of any breach of condition of the bond the whole amount of the penal sum shall be deemed to be liquidated damages and shall be recoverable from the principal and sureties of the bond. If the bond is not filed prior to the effective date of the ordinance, the award of the franchise may be set aside and the ordinance may be repealed at any time prior to the filing of the bond and any money paid in consideration for the award of franchise shall be deemed forfeited. In the event that the bond, after it has been so filed, shall at any time during the life of the franchise become insufficient, in the sole opinion of the City Council, the franchisee shall renew said bond within twenty (20) days after written notice to do so is provided by the City Engineer. At such time, the bond shall be increased by a rate equal to adjustments to the Consumer Price Index for the Orange-Anaheim-Riverside Area, or successor index thereto, since the effective date of the franchise or the most recent increase to the bond.
(Ord. 1152, passed 5-17-11)
The franchisee shall be liable to the city for damage to city property, including but not limited to, any street, and any other cost incurred by the city caused by franchisee, any of franchisee’s facilities or by any person acting on franchisee’s behalf. The franchisee shall be strictly liable to city for any activity conducted pursuant to or in connection with the franchise. The franchisee’s strict liability shall extend to any consequential damages incurred by the city, and to any costs, including remediation costs, incurred by the city for control or abatement of any environmental condition, release of contaminants, remedial work or any fire or explosion resulting from any activity conducted by or on behalf of franchisee pursuant to the franchise.
(Ord. 1152, passed 5-17-11)
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