Hold Harmless and Indemnification Clauses
Negotiating New Language
County Directors, Center Directors, or Statewide Program Directors may negotiate a substitute Hold Harmless agreement. The preferred clauses to use are contained in Attachment A: Preferred Hold Harmless and Indemnification Clause (pdf). The University and the other party agree to take responsibility for their own negligence. These are referred to as reciprocal clauses. Each party also supplies an insurance certificate to back up the language in the agreement. The insurance certificate is only evidence of financial ability to support the indemnification language of an agreement.
The Director may negotiate a substitute Hold Harmless agreement using the alternate clause or Attachment B: Alternate Hold Harmless and Indemnification Clause (pdf). This clause is acceptable to the University. We agree to be responsible for only our own negligent acts or omissions. The University would supply an insurance certificate backing up the language in the clause. The other party would not be supplying a certificate.
Remember, proportionality is the key to UC's responsibility.
If the Director is unsuccessful in negotiating Attachment B and the other party will only sign their hold harmless/indemnification clause, contact ANR Risk Services for analysis of the activity to determine if the excessive liability exposure can be allowed. Send the agreement to Risk Services, along with the following detailed descriptions justifying why the exception to University policy should be invoked:
- A description of the programmatic activity
- A description of the condition/characteristics of the facility
- How many people are expected to participate
- What alternative options/facilities to delivering the program have been sought before asking for this facility
The above information may be submitted in a letter or e-mail to Risk Services for review and approval by the Director of Risk & Safety Services and/or the Controller.
Negotiating with Public School Districts
If negotiating with public school districts, check to see if they are part of the Negotiated Indemnification Agreements that include districts or other agencies. If not use the following Education Code to show that school districts are required by law to insure their property for ownership and maintenance.
The text found in California Education Code, Section 38134 (a), (i) requires districts to be held liable for the care and maintenance of their property. This may affect the wording in the hold harmless clause that they have in their contracts.
If a facility use agreement contains a clause that compromises The Regents' assets by leaving open the potential for lawsuits from any and all parties, the Director should work with ANR Risk Services to review the language and negotiate changes to the contract language.