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costs and fees incurred in recovering under this indemnification provision. If separate <br />representation to fully protect the interests of both parties is necessary, such as a conflict <br />of interest between the City and the counsel selected by Franchisee to represent the City, <br />then upon the prior written approval and consent of Franchisee, which shall not be <br />unreasonably withheld, the City shall have the right to employ separate counsel in any <br />action or proceeding and to participate in the investigation and defense thereof, and <br />Franchisee shall pay the reasonable fees and expenses of such separate counsel, except <br />that Franchisee shall not be required to pay the fees and expenses of separate counsel <br />on behalf of the City for the City to bring or pursue any counterclaims or interpleader <br />action, equitable relief, restraining order or injunction. The City's fees and expenses shall <br />include all out-of-pocket expenses, such as consultants and expert witness fees, and shall <br />also include the reasonable value of any services rendered by the counsel retained by <br />the City but shall not include outside attorneys' fees for services that are unnecessarily <br />duplicative of services provided the City by Franchisee. Each party agrees to cooperate <br />and to cause its employees and agents to cooperate with the other party in the defense <br />of any such claim and the relevant records of each party shall be available to the other <br />party with respect to any such defense. <br />Section 19.4. The parties acknowledge that this Franchise may be subject to <br />RCW 4.24.115. Accordingly, in the event of liability for damages arising out of bodily <br />injury to persons or damages to property caused by or resulting from the concurrent <br />negligence of Franchisee and the City, its officers, officials, employees, and volunteers, <br />Franchisee's liability shall be only to the extent of Franchisee's negligence. It is further <br />specifically and expressly understood that the indemnification provided constitutes <br />Franchisee's waiver of immunity under Title 51 RCW, solely for the purposes of this <br />indemnification. This waiver has been mutually negotiated by the parties. <br />Section 19.5. Notwithstanding any other provisions of this Section 19, Franchisee <br />assumes the risk of damage to its Facilities located in the Rights -of -Way and upon City - <br />owned property from activities conducted by the City, its officers, agents, employees, <br />volunteers, elected and appointed officials, and contractors, except to the extent any such <br />damage or destruction is caused by or arises from any sole negligence, intentional <br />misconduct or criminal actions on the part of the City, its officers, agents, employees, <br />Page 25 of 45 <br />{E F M 4895-9658-9257;1/13175.000042/} <br />29 <br />