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apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly
<br />from the negligence or willful misconduct of the City or its officers, employees, agents, or
<br />volunteers and (2) the actions of Siemens or its employees, subcontractors, or agents have
<br />contributed in no part to the injury, loss of life, damage to property, or violation of law. It is
<br />understood that the duty of Siemens to indemnify and hold harmless includes the duty to
<br />defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of
<br />insurance certificates and endorsements required under this Agreement does not relieve
<br />Siemens from liability under this indemnification and hold harmless clause. This
<br />indemnification and hold harmless clause shall apply to any damages or claims for damages
<br />whether or not such insurance policies shall have been determined to apply. By execution of
<br />this Agreement, Siemens acknowledges and agrees to the provisions of this Section and that
<br />it is a material element of consideration.
<br />11.3 In the event that Siemens or any employee, agent, or subcontractor of
<br />Siemens providing services under this Agreement is determined by a court of competent
<br />jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for
<br />enrollment in PERS as an employee of City, Siemens shall indemnify, defend, and hold
<br />harmless City for the payment of any employee and/or employer contributions for PERS
<br />benefits on behalf of Siemens or its employees, agents, or subcontractors, as well as for the
<br />payment of any penalties and interest on such contributions, which would otherwise be the
<br />responsibility of City.
<br />11.4 UNLESS CONTRARY TO APPLICABLE LAW, SIEMENS'
<br />AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, LOSSES OR EXPENSES
<br />ARISING OUT OF THIS AGREEMENT, OR OUT OF ANY GOODS OR SERVICES
<br />FURNISHED UNDER THIS AGREEMENT, WHETHER BASED IN CONTRACT,
<br />NEGLIGENCE, STRICT LIABILITY, AGENCY, WARRANTY, TRESPASS,
<br />INDEMNITY OR ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO
<br />$22,400,000, PROVIDED HOWEVER THAT THIS LIMIT SHALL NOT APPLY TO THE
<br />CITY'S REMEDY UNDER THE PERFORMANCE GUARANTEE IN EXHIBIT C.
<br />Section 12. LOSS, DAMAGE OR DESTRUCTION TO THE CITY WATER
<br />POLLUTION CONTROL PLANT.
<br />12.1 Prevention and Repair. Siemens shall use care and diligence, and
<br />shall take all reasonable precautions, to protect the WPCP from loss, damage or destruction
<br />caused by Siemens' performance. Siemens shall report to the City and the insurers,
<br />immediately upon obtaining knowledge thereof, any damage or destruction to the WPCP and
<br />as soon as practicable thereafter shall submit a full report to the City. Siemens shall also
<br />submit to the City, within twenty-four (24) hours of receipt, copies of all accident and other
<br />reports filed with, or given to Siemens by, any insurance company, adjuster or Governmental
<br />Body. The Parties shall cooperate so as to promptly agree upon the scope and commence
<br />and proceed with due diligence to complete the repair, replacement and restoration of the
<br />WPCP to at least the character or condition thereof existing immediately prior to the loss,
<br />damage or destruction. The City shall have the right to monitor, review and inspect the
<br />performance of any repair, replacement and restoration work by Siemens as if such work
<br />constituted Work hereunder.
<br />WPCP Cogeneration 090808 -Page 21 of 60
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