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<br />Non-Professional Services Agreement between June 7, 2024
<br />City of San Leandro and ACCO Engineered Systems Page 9 of 16
<br /> Obtain such insurance and deduct and retain the amount of the premiums for such
<br />insurance from any sums due under the Agreement;
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<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.
<br /> Section 5. INDEMNIFICATION AND CONTRACTOR’S RESPONSIBILITIES. To the fullest extent
<br />permitted by law, Contractor shall indemnify, defend with counsel acceptable to City, and hold harmless
<br />City and its officers, officials, employees, agents and volunteers from and against any and all liability, loss,
<br />damage, claims, expenses, and costs (including without limitation, attorney’s fees and costs and fees of
<br />litigation) (collectively, “Liability”) of every nature arising out of or in connection with Contractor’s
<br />performance of the Services or its failure to comply with any of its obligations contained in this Agreement,
<br />except such Liability caused by the sole negligence or willful misconduct of City.
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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 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 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 the active or
<br />sole negligence or willful misconduct of the City. The indemnifications provided herein shall not be limited to
<br />damages, compensation or benefits payable under insurance policies, workers’ compensation acts,
<br />disability benefit acts, or other employees’ benefit acts.
<br />DocuSign Envelope ID: 0CAE5929-34D7-4C3E-B7BB-9AA887716EB5
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