|
Consulting Services Agreement between City of San Leandro and
<br />ESA for Marshlands Hydrology Study
<br />October 1, 2025
<br />Exhibit B – Page 1 of 1
<br />
<br />EXHIBIT B
<br />INDEMNIFICATION
<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, attorney’s fees and costs and fees of litigation)
<br />(collectively, “Liability”) of every nature arising out of or in connection with Consultant’s performance of the
<br />services called for, but only to the extent caused by the negligence, recklessness or willful misconduct of
<br />Consultant, its employees or subconsultants.
<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 2782.8.
<br />
<br />The Consultant’s obligation to defend and indemnify shall not be excused because of the Consultant’s inability to
<br />evaluate Liability or because the Consultant evaluates Liability and determines that the Consultant is not liable to
<br />the claimant. The Consultant must respond within 30 days to the tender of any claim for defense and indemnity by
<br />the City. If the Consultant fails to accept or reject a tender of defense and indemnity within 30 days, in addition to
<br />any other remedy authorized by law, so much of the money due the Consultant under and by virtue of this
<br />Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition
<br />has been made of the claim or suit for damages, or until the Consultant accepts or rejects the tender of defense,
<br />whichever occurs first.
<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 />With respect to third party claims against Consultant, Consultant waives any and all rights to any type of
<br />express or implied indemnity against the Indemnitees.
<br />Consultant’s obligation under this Agreement shall survive the termination of this Agreement for at least five
<br />(5) years after full or partial completion of performance by Consultant, or termination by either party.
<br />
<br />Acceptance by City of insurance certificates and endorsements required under this Agreement does not
<br />relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification
<br />and hold harmless clause shall apply to any damage or claim for damages whether or not such insurance
<br />policies have been determined to apply.
<br />
<br />In the event that Consultant or any employee, agent, or subcontractor of Consultant 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, Consultant 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 Consultant or its employees, agents, or subcontractors, as well as for the
<br />payment of any penalties and interest on such contributions, which would otherwise be the responsibility of
<br />City.
<br />Docusign Envelope ID: 9DB32912-19D0-41E8-ACE8-82408BB907DB
|