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<br />Non-Professional Services Agreement between May 15, 2024
<br />City of San Leandro and Kirby Tree Service Page 9 of 16
<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 liability, loss, damage, claims, expenses,
<br />and costs (including without limitation, attorney’s fees and costs and fees of litigation) (collectively,
<br />“Liability”) of every nature arising out of or in connection with Contractor’s performance of the Services or
<br />its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by
<br />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 b y 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, subtractio n 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 f rom 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.
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<br />In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services
<br />under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
<br />Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Contractor shall
<br />indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions
<br />for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the
<br />DocuSign Envelope ID: 95835A20-C239-4C9F-B6AE-03B342861A37
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