Poway Municipal Code Art. VIII Administrative Requirements

A. Indemnification Generally. Separate and distinct from any insurance or liquidated damages provisions found in the franchise agreement, franchisee shall defend, with counsel to be agreed upon by both parties, indemnify, and hold harmless the City and its agents, officers, servants, and employees from and against any and all claims, demands, damages, liabilities, costs or expenses for any damages or injuries to any person or property, including but not limited to, injury to franchisee’s or 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 City, franchisee, or their agents, officers or employees, in the preparation, bidding, execution, administration, or performance of the 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 negligence or intentional tort of the City, its agents, officers or employees, determined by a court of competent jurisdiction.

B. Hazardous Materials Indemnification. Franchisee shall indemnify, defend, with counsel to be agreed upon by both parties, protect and hold harmless City, its officers, employees, agents, assigns and any successor or successors to 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, City or its officers, employees, or agents arising from or attributable to any repair, clean-up 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 the franchise agreement resulting in a release of any hazardous substance into the environment. The foregoing indemnity is intended to operate pursuant to Section 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act, “CERCLA,” also known as “Superfund” 42, U.S.C. Section 9607(e), and California Health and Safety Code Section 25364, to defend, protect, hold harmless and indemnify City from all forms of liability under CERCLA, other statutes, or common law for any and all matters addressed in this provision.

(Ord. 448 § 2, 1995)

The provisions of this chapter shall not require the collection or transportation by the franchisee of solid waste, recyclables, yard waste, or other compostables generated within the City by any school district, special district, or agency of County, State, or Federal government, provided that any person collecting or transporting such waste or material shall obtain a special permit therefor pursuant to the terms of this chapter. It shall be unlawful for any person to collect or transport such waste or material in the City without first obtaining a special permit.

(Ord. 448 § 2, 1995)

A. Franchisee shall maintain limits of insurance no less than:

1. Comprehensive general liability: $5,000,000 combined single limit per occurrence for bodily injury and property damage;

2. Automobile liability: $5,000,000 combined single limit per accident for bodily injury and property damage;

3. Worker’s compensation and employers liability: worker’s compensation limits as required by the Labor Code of the State of California.

B. Any significant deductibles or self-insured retention must be declared to and approved by the City’s Risk Manager. At the option of the City’s Risk Manager, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officials, employees, agents or volunteers; or the franchisee shall procure an additional letter of credit or bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.

C. Franchisee shall comply with all other insurance requirements delineated in the franchise agreement.

(Ord. 448 § 2, 1995)

Upon execution of a franchise agreement, franchisee shall file with the City Clerk an Irrevocable Letter of Credit payable solely to the City of Poway, in the amount of at least $100,000 and a surety bond for the balance to a total of $500,000, both of which shall be immediately available to the City in the event of any failure of the franchisee to well and faithfully perform all of its duties and obligations under the franchise agreement or to provide full service in accordance with the terms of the franchise agreement. Such funds shall be available to City upon the City’s unilateral determination of default, and prior to a judicial determination of default. The bond shall be issued by a surety admitted to do business in the State of California. The letter of credit shall be issued by a local bank.

(Ord. 448 § 2, 1995)

Violation of any of the provisions of this chapter shall be punishable by imprisonment in accordance with the provisions of Chapter 1.08 PMC.

(Ord. 448 § 2, 1995)

If any section, subsection, sentence, clause, or phrase of this chapter is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions, which shall be severed and continue in full force and effect. The City Council declares that it would have passed this chapter and each section, subsection, clause, and phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional, and would have passed and adopted the same even though any parts, sections, subsections, sentences, clauses, or phrases that may be held invalid had been omitted therefrom.

(Ord. 448 § 2, 1995)