|
3.5.4 Attorney's Fees. If either party commences an action against the other party, either
<br />legal, administrative or otherwise, arising out of or in connection with this Agreement, the
<br />prevailing party in such litigation shall be entitled to have and recover from the losing party
<br />reasonable attorney's fees and all other costs of such action.
<br />3.5.5 Subcontractors. For the avoidance of doubt, the term "subcontractor" as used in
<br />this Agreement shall not include (i) third party operators or owners of waste disposal or
<br />processing facilities or (ii) subhaulers of waste.
<br />3.5.6 Indemnification. Contractor shall defend, indemnify and hold the City, its officials,
<br />officers, employees, volunteers and agents free and harmless from any and all claims,
<br />demands, causes of action, costs, expenses, liability, loss, attorney fees and related costs and
<br />expenses, damage or injury, in law or equity, to property or persons, including wrongful death,
<br />in any manner (i) to the extent arising out of or incident to any alleged acts, omissions,
<br />negligence or willful misconduct of Contractor, its officials, officers, employees, agents,
<br />consultants and contractors (ii) to the extent arising out of or in connection with the performance
<br />of the Services, the Project or this Agreement. Contractor shall defend, at Contractor's own
<br />cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of
<br />every kind that may be brought or instituted against City, its directors, officials, officers,
<br />employees, agents or volunteers. Contractor shall pay and satisfy any judgment, award or
<br />decree that may be rendered against City or its officials, officers, employees, agents or
<br />volunteers, in any such suit, action or other legal proceeding. Contractor shall reimburse City
<br />and its officials, officers, employees, agents and/or volunteers, for any and all legal expenses
<br />and costs incurred by each of them in connection therewith or in enforcing the indemnity herein
<br />provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if
<br />any, received by the City, its officials, officers, employees, agents or volunteers.
<br />3.5.6.1 Exception. Notwithstanding any provision in this Agreement to the contrary,
<br />Contractor shall not be required to defend, indemnify and hold the City, its officials, officers,
<br />employees, volunteers, and agents free and harmless from any and all claims, demands,
<br />causes of action, costs, expenses, liability, loss, damage, or injury in law or equity to property
<br />or persons, including wrongful death, whatsoever, to the extent arising from or in connection to
<br />(i) any acts or omissions of third parties or (ii) the negligence, willful misconduct, violation of
<br />law, or breach of this Agreement by the City, its officials, officers, employees, volunteers and
<br />agents.
<br />3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties
<br />with respect to the subject matter hereof, and supersedes all prior negotiations, understandings
<br />or agreements. In the event of a conflict between the terms of this Agreement and any
<br />attachments hereto, the terms of this Agreement shall prevail. The parties agree that any terms
<br />or conditions of any purchase order or other instrument that are inconsistent with, or in addition
<br />to, the terms and conditions of this Agreement, shall not bind or obligate the City or the
<br />Contractor. This Agreement may only be modified by a writing signed by both parties.
<br />3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of
<br />California. Venue shall be in Orange County.
<br />3.5.9 Time of Essence. Time is of the essence for each and every provision of this
<br />Agreement.
<br />Page 10 of 13
<br />
|