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<br />Consulting Services Agreement between City of San Leandro and Whitewater West Industries, Ltd for <br />Washington Manor Pool Renovation – Play Structure Exhibit C – Page 1 of 1 <br />EXHIBIT C <br /> <br />INDEMNIFICATION <br /> <br />Consultant shall indemnify, defend with counsel of its choice and hold harmless the City and its officers, <br />elected officials, employees, agents and volunteers, with the exclusion of any service providers such as <br />architects or consultant project engineers, from and against claims, damages, losses, and expenses, <br />including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work, <br />provided that such claim, damage, loss, or expense is attributable to bodily injury, sickness, disease or <br />death, or to injury to or destruction of tangible property (other than the Work itself),excepting claims due <br />solely to maintenance or operations related incidents, regardless of whether or not such claim, damage, <br />loss, or expense is caused in part by a party indemnified hereunder, and except such Liability caused by <br />the sole negligence or willful misconduct of the party indemnified hereunder. <br /> <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. <br /> <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 acknowledge within 30 days to the tender of <br />any claim for defense and indemnity by the City. <br /> <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. <br />DocuSign Envelope ID: DC67CF15-DE43-49BE-AE02-90EF4C9C2A1FDocuSign Envelope ID: DD9847C6-E6E4-4038-AEB7-56EC21787179