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<br />Non-Professional Services Agreement between August 15, 2023
<br />City of San Leandro and Cummins Inc., dba Cummins Sale and
<br />Service Page 9 of 17
<br />alternatives to other remedies City may have and are not the exclusive remedy for
<br />Contractor’s breach:
<br /> Order Contractor to stop work under this Agreement or withhold any payment that
<br />becomes due to Contractor hereunder, or both stop work and withhold any payment,
<br />until Contractor demonstrates compliance with the requirements hereof; and/or
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<br /> Terminate this Agreement.
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<br />Section 5. INDEMNIFICATION AND CONTRACTOR’S RESPONSIBILITIES. Contractor shall
<br />indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials,
<br />employees, agents and volunteers from and against any and all third -party liability, loss, damage, claims,
<br />expenses, and costs (including without limitation, attorney’s fees and costs and fees of litigation)
<br />(collectively, “Liability”) arising out of or in connection with the Contractor’s obligations under this
<br />Agreement, except such Liability caused by the sole negligence or willful misconduct of the City. Except for
<br />acts amounting to gross negligence, willful misconduct or intentional wrongs, Contractor shall not be liable
<br />to the City in excess of the applicable insurance coverage policy limit required under Section 4 of this
<br />Agreement.
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<br />Contractor 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 othe r
<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 Contractor’s services
<br />under this Agreement, however, the cost to defend charged to Contractor shall not exceed Contractor’s
<br />proportionate percentage fault.
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<br />The Contractor’s obligation to defend and indemnify shall not be excused because of the Contractor’s
<br />inability to evaluate Liability or because the Contractor evaluates Liability and determines that the
<br />Contractor is not liable to the claimant. The Contractor must respond within 30 days, to the tender of any
<br />claim for defense and indemnity by the City, unless this time has been extended by the City. If the
<br />Contractor fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any
<br />other remedy authorized by law, so much of the money due the Contractor under and by virtue of this
<br />Agreement as shall reasonably be considered necessary by the City, may be retained by the City until
<br />disposition has been made of the claim or suit for damages, or until the Contractor accepts or rejects the
<br />tender of defense, whichever occurs first.
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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 Contractor to
<br />indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.
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<br />If this Agreement involved construction or maintenance then all provisions of this Agreement pursuant to
<br />which Contractor agrees to indemnify the City against liability for damages arising out of bodily injury to
<br />persons or damage to property relative to the construction, alteration, repair, addition to, subtraction from,
<br />improvement to, or maintenance of, any building, road, or other structure, project, development, or
<br />improvement attached to real estate, shall not apply to damages caused by or resulting from t he active or
<br />sole negligence or willful misconduct of the City. The indemnifications provided herein shall not be limited to
<br />DocuSign Envelope ID: 8D360211-6736-45CF-8935-3AF61A795DE1
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