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4. Relationship of Parties <br />It is expressly understood that this is an agreement between two independent entities, the County <br />and the City, and that no individual agency, employee, partnership, joint venture, or other <br />relationship is established by this MOU. The intent by both the County and the City is to create an <br />independent collaborative relationship. <br />5. Hold Harmless <br />The County shall indemnify, defend, and hold harmless the City and its officers, agents, <br />employees, and servants against all damages, claims, liabilities, losses, and other expenses, <br />including without limitation attorneys’ fees and related costs, whether or not a lawsuit or other <br />proceeding is filed, to the extent that they arise out of (1) the negligence or willful misconduct of <br />County staff in performing the enforcement services described in this memorandum of <br />understanding; or (2) any allegation that the promotional or educational materials produced or used <br />by County staff pursuant to this memorandum of understanding infringe any third-party right of <br />any kind, including without limitation, any intellectual property right. <br />The City shall indemnify, defend, and hold harmless the County and its officers, agents, <br />employees, and servants against all damages, claims, liabilities, losses, and other expenses, <br />including without limitation attorneys’ fees and related costs, whether or not a lawsuit or other <br />proceeding is filed, to the extent they arise out of (1) the act of adopting ordinance No. <br />2514 establishing food service ware regulations; or (2) any acts or omissions by City <br />staff in implementing ordinance No. 2514 that arise out of City staff's negligence or willful <br />misconduct; or (3) any allegation that the promotional or educational materials produced by City <br />staff pursuant to this memorandum of understanding infringe any third-party right of any kind, <br />including without limitation, any intellectual property right. <br />A party seeking indemnity and defense under this section shall provide the indemnifying and <br />defending party with prompt notice of any claim and give control of its defense and settlement to <br />the indemnifying and defending party. The party seeking indemnity and defense shall also <br />cooperate in all reasonable respects with the indemnifying and defending party, its insurance <br />company, and its legal counsel in its defense of such claim. The obligation to defend and indemnify <br />pursuant to this section shall not cover any claim in which there is a failure to give the indemnifying <br />and defending party prompt notice, but only to the extent that such lack of notice prejudices the <br />defense of the claim. The indemnifying and defending party may not settle any potential suit <br />hereunder without the other party’s prior written approval, which will not to be unreasonably <br />withheld, conditioned, or delayed. If a party who owes indemnity and defense under this section <br />fails to promptly indemnify and defend a covered claim, the other party shall have the right to <br />defend itself, and in such case, the party owning indemnity and defense shall promptly reimburse <br />the other party for all of its associated costs and expenses. <br />The obligations imposed by this section shall survive termination or expiration of the MOU. <br />REV: 09-13-2022 MI <br />ATTY/AGR.2022.334/County of San Mateo (Page 3 of 7)