4.20.107.2.1. Franchisee shall, upon demand of the city, or any other such indemnitee, appear in and defend the city, its officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees against and from any and all alleged claims, demands, actions, suits, or other legal proceedings, whether judicial, quasi-judicial, administrative or otherwise, of every kind and nature and regardless of the merit of the same (collectively, "Liabilities"), arising out of or
related to and to the extent proximately caused by the acts or omissions of the franchisee, its employees, contractors, volunteers or agents, regardless of any claimed or actual negligence or conduct of the city or any such indemnitee. The foregoing duty does not extend to liabilities based on the city's sole negligence, as finally adjudicated.
4.20.107.2.2. Where franchisee has assumed the defense in any such proceeding, it may control the proceedings at issue, and the city may participate in such proceedings with counsel of its own choosing. The city will be responsible for all costs and expenses of such counsel, as well as for the city's accounting fees, expert witness or consultant fees, court costs, per diem expenses, and travel and living expenses.
4.20.107.2.3. Should the franchisee fail to undertake the defense of such claim following demand of the city or any other such indemnitee, the city may undertake the defense of such claim, in which case the franchisee shall reimburse the city and any other indemnitee for any costs and expenses incurred in defending against such claim or demand or action, including any attorneys' fees, accountant fees, expert witness or consultant fees, court costs, per diem expenses, and travel and living expenses. The foregoing obligations shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other security required hereunder.
4.20.107.2.4. The franchisee may settle, compromise, adjust or otherwise dispose of any such claim, provided that the franchisee shall not settle, compromise, adjust or dispose of any such claim which would impose any obligation upon the city, its officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees without the city's prior written consent, which consent shall not be unreasonably withheld.
4.20.107.2.5. Should the franchisee fail to defend any such claim, the city may settle, compromise, adjust or otherwise dispose of such claim on such terms as it may deem appropriate. The franchisee shall promptly reimburse the city for the amount of all settlement payments and expenses, legal and otherwise, incurred by the city in connection with the defense or settlement of such claim. If no settlement of such claim is made, then the franchisee shall satisfy any judgment rendered with respect to such claim before the city is required to do so, and pay all expense, legal or otherwise, incurred by the city in the defense of such claim.
4.20.107.2.6. Except as specifically set forth above, the city shall not have the right to settle, compromise, adjust or dispose of any claim without the approval of the franchisee, provided that if the franchisee disapproves of such settlement, then it must assume the defense of such claim and reimburse the city for all expenses of the city to the date of assumption.
4.20.107.2.7. If the city enters into any settlement, compromise, adjustment or other disposition of a claim for which indemnification is sought under the provisions of this section and the franchisee has not provided its approval of such settlement, the franchisee will be discharged from its obligations of indemnification under this section.
4.20.107.2.8. The party proposing a settlement, compromise, adjustment or other disposition of a claim shall give the other party ten days prior written notice of the proposed settlement, compromise, adjustment or other disposition for which indemnification is sought by the city under the provisions of this section. The party to whom such notice is given shall be required to accept, reject or modify the proposed settlement within such ten day period.
4.20.107.2.9. If the city has assumed its own defense in any action in which the city and the franchisee are co-defendants, then the franchisee shall reimburse the city, from the proceeds of any damage award received by the franchisee and after franchisee's deduction therefrom of franchisee's legal costs and expenses with respect to such action, for the attorneys' fees, costs and other litigation expenses incurred by the city in its self-defense. (Ord. 205 § 3, 2001)