Chapter 9 — GRANTEE INDEMNIFICATION, INSURANCE AND BONDING

Section

• 46.0901 Indemnification of County.
• 46.0902 Hazardous Waste Indemnification.
• 46.0903 Insurance Requirements.
• 46.0904 Performance Bonds or Other Security.
• 46.0905 Liquidated Damages Deposit.
• 46.0906 Modification.

Separate and distinct from the insurance provisions required by this Division 6, each franchise agreement shall require each grantee to appear and defend (with counsel approved by County) all actions against the Division and the County, and the grantee agrees to defend (with counsel approved by County), indemnify, and hold the County and/or its officers, agents, volunteers and employees harmless from and against, any and all claims and demands, causes of action of every kind and description, damages, liabilities, costs or expenses for any damages or injuries to any person or property, including, but not limited to, injury to grantee's officers, agents, or employees which arise directly or indirectly from or are connected with or are caused or claimed to be caused by acts, errors or omissions of grantee, or its officers, agents, or employees, in exercising its rights or in performing its duties under its franchise agreement or under this Division 6, and all costs and expenses of investigating and defending against same, except to the extent such indemnification is prohibited by law. (Ord. 4385, passed - -2020; Am. Ord. 4434, passed - -2022)

Without limiting the generality of the foregoing, if grantee has negligently or willfully acted or failed to act with respect to the collection, handling or transportation of hazardous waste, grantee shall indemnify, defend (with counsel approved by County), protect and hold harmless the County and its respective officers, employees, agents, volunteers, assigns, and any successor or successors harmless from and against all claims, actual damages (including, but not limited to, special and consequential damages), natural resources damage, 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, County or its respective officers, employees, agents, or grantees 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 governmental action) concerning any hazardous waste which grantee has negligently or willfully acted or failed to act with respect to its collection, handling or transportation at any place where grantee stores, handles, transports or disposes of solid waste pursuant to its franchise agreement. The foregoing indemnity is intended to operate and shall operate as an agreement pursuant to § 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act, "CERCLA" 42 U.S.C. § 9607(e) and Health and Safety Code § 25364, to insure, protect, indemnify, and hold the County harmless from liability. (Ord. 4385, passed - -2020; Am. Ord. 4434, passed - -2022)

(a) In order to accomplish the indemnifications provided above, but without limiting the duty, each grantee shall secure and maintain at its sole cost throughout the term of its respective franchise agreement, insurance issued by companies acceptable to the County's Risk Manager with limits as may be reasonably prescribed by the County's Risk Manager as a reflection of the County's risk in respect to operations under a particular franchise agreement, and with such terms and provisions as may be required from time to time by the County's Risk Manager. At a minimum such insurance policies include, but are not limited to: (1) Workers compensation. (2) Comprehensive general and automobile liability insurance. (3) Environmental liability. (b) Prior to commencing operations under a franchise agreement, grantee shall furnish to the Division certificates of insurance evidencing the required insurance coverage. Each such certificate shall provide that the insurance coverage evidenced thereby shall not be expired, canceled, terminated or reduced in amount without at least 30 days advance written notice to the Division. Within 60 days after the effective date of a franchise agreement, the grantee shall furnish to the Division certified copies of all of the policies and endorsements required by this Section. Proofs of renewal or of substitution of carriers shall be provided to the Division promptly as such events occur. (c) All insurance requirements are subject to annual review by the County, with the results of such review to be provided to a grantee on or before the anniversary of the effective date of its

franchise agreement. If the County's Risk Manager determines at any annual review that heretofore unreasonably priced or unavailable types of insurance coverage or coverage limits become reasonably priced or available, the County's Risk Manager is authorized, but not required, to change the above insurance requirements to require additional types of insurance coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the County, inflation, or any other item reasonably related to the County's risk. Any such change shall be treated as a change in law adjustment, under the provisions of Division 6. (d) Grantee shall not be required to maintain separate policies of insurance for any type of insurance required under both this section and Chapter 8 of Division 3 of Title 3 of this Code. However, grantee must maintain the level of insurance which is the higher of that required in this Section and Chapter 8 of Division 3 of Title 3 of this Code, and must obtain and maintain insurance coverage which satisfies all of the provisions of this Section and Chapter 8 of Division 3 of Title 3 of this Code, including without limit, providing certificates of insurance to all specified departments of the County and requiring notification of the cancellation or termination of any insurance policy be given by the insurance company to all specified departments of the County. (Ord. 4385, passed - -2020; Am. Ord. 4434, passed - -2022)

Grantee shall furnish to the County, without additional charge, a corporate surety bond, a letter of credit or other Security device acceptable to the Division, as security for performance under its franchise agreement (collectively "security"). The amount of the security shall be the average of one month's expected gross receipts less disposal charge. Adequate proof of the existence of the security shall be provided (e.g., a certificate from the surety showing that the bond premiums have been paid in full shall accompany the bond and each renewal thereof). The surety on the bond, the bank on which the letter of credit is drawn and the surety for any other security device shall be a company or financial institution acceptable to the County and shall be authorized to do business in the State of California. A surety company shall be as defined in Code of Civil Procedure § 995.120 or any successor section. The surety must be acceptable to the County and may be subject to objection to sufficiency pursuant to Code of Civil Procedure §§ 995.660 et seq., or any successor sections. (Ord. 4385, passed - -2020; Am. Ord. 4434, passed - -2022)

Each grantee shall be required to maintain a bank account from which the Division will have the ability to remove, on the sole signature of the Director, sums of money equal to any liquidated damages assessed against grantee under the provisions of § 46.1002 of this code. (Ord. 4385, passed - -2020; Am. Ord. 4434, passed - -2022)

The requirements of this Chapter may be modified or waived in writing by the Board upon the request of grantee, provided the Board reasonably determines such modification or waiver is in the best interest of County and of the public welfare, considering all relevant factors, including acceptable financial guarantees provided by Grantee or by a parent company of grantee. (Ord. 4385, passed - -2020; Am. Ord. 4434, passed - -2022)