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<br />Consulting Services Agreement between City of San Leandro and Last revised 8/1/2022
<br />EcoEngineers for RNG Feasibility Study Exhibit C – Page 1 of 2
<br />EXHIBIT C
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<br />INDEMNIFICATION
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<br />Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers,
<br />elected officials, employees, agents and volunteers from and against any and all liability, loss, damage,
<br />claims, expenses, and costs (including without limitation, reasonable attorney’s fees and costs and fees of
<br />litigation) (collectively, “Liability”) of every nature arising out of, or in connection with, or caused by
<br />Consultant’s negligence or willful misconduct in performance of the services called for or its failure to
<br />comply with any of its obligations contained in this Agreement, except such Liability caused by the sole
<br />negligence or willful misconduct of City.
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<br />Notwithstanding the forgoing, to the extent this Agreement is a “construction contract” as defined by
<br />California Civil Code Section 2782, as may be amended from time to time, such duties of Consultant to
<br />indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.
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<br />The Consultant’s obligation to defend and indemnify shall not be excused because of the Consultant’s
<br />inability to evaluate Liability or because the Consultant evaluates Liability and determines that the
<br />Consultant is not liable to the claimant. The Consultant must respond within 30 days to the tender of any
<br />claim for defense and indemnity by the City. If the Consultant fails to accept or reject a tender of defense
<br />and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due
<br />the Consultant under and by virtue of this Agreement as shall reasonably be considered necessary by the
<br />City, may be retained by the City until disposition has been made of the claim or suit for damages, or until
<br />the Consultant accepts or rejects the tender of defense, whichever occurs first.
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<br />Consultant shall also indemnify, defend and hold harmless the City from all suits or claims for infringement
<br />of any patent rights, copyrights, trade secrets, trade names, trademarks, service marks, or any other
<br />proprietary rights of any person or persons because of the City or any of its officers, employees, volunteers,
<br />or agents use of articles, products things, or services supplied in the performance of Consultant’s services
<br />under this Agreement, however, the cost to defend charged to Consultant shall not exceed Consultant’s
<br />proportionate percentage fault.
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<br />NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL CONSULTANT BE LIABLE TO THE CITY
<br />OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR
<br />DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL,
<br />EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT
<br />(INCLUDING NEGLIGENCE) OR ANY LEGAL CLAIM, REGARDLESS OF WHETHER SUCH DAMAGES
<br />WERE FORESEEABLE AND WHETHER OR NOT CONSULTANT HAS BEEN ADVISED OF THE
<br />POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR
<br />OTHER REMEDY OF ITS ESSENTIAL PURPOSE; IN NO EVENT SHALL CONSULTANT’S AGGREGATE
<br />LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR
<br />RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, OR
<br />OTHERWISE, EXCEED THE TOTAL OF THE FEES PAID TO ECOENGINEERS FOR THE
<br />DELIVERABLES AND OTHER SERVICES SOLD HEREUNDER OR, IN THE CASE OF A COVERED
<br />CLAIM, AVAILABLE INSURANCE PROCEEDS. THE LIMITATION OF LIABILITY SET FORTH HEREIN
<br />SHALL NOT APPLY TO LIABILITY RESULTING FROM CONSULTANT’S GROSS NEGLIGENCE,
<br />DocuSign Envelope ID: 71B010A6-9E62-4B75-94F3-BA284D9E0A26
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