Agmt21 Environmental Science Associates Transit District

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REV: 06-22-21 MI 11. Indemnification. 11.1 To the fullest extent permitted by law, Consultant will defend, indemnify and hold harmless (collectively “Indemnify”) City and its officers, boards and commissions, agents, employees and volunteers (collectively “Indemnitees”) from and against all claims, damages, losses and expenses including attorney fees (collectively “Losses”) arising out of the performance of the Services, caused or claimed to be caused by the acts, errors and/or omissions of Consultant, or any Consultant Personnel or anyone for whose acts any of them may be liable (collectively, “Responsible Parties”). Consultant’s responsibilities under this Section 11 include liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of City, which may be in combination with the acts or omissions of any Responsible Party, provided that Consultant’s duty to Indemnify will not include any Losses arising from the sole negligence or willful misconduct of City. 11.2 Notwithstanding Consultant’s obligation to defend City hereunder, City has the right to conduct its own defense and seek reimbursement for reasonable costs of defense from Consultant, if City chooses to do so. 11.3 Consultant agrees to pay any and all costs City incurs enforcing the provisions set forth in this Section 11. 11.4 Subsection 11.1 notwithstanding, in accordance with California Civil Code Section 1668, as amended, nothing in this Agreement will be construed to exempt the City from its own fraud, willful injury to the person or property of another, or violation of law. 11.5 Nothing contained in this Agreement will be construed to require Consultant to Indemnify Indemnitees against any responsibility or liability in contravention of California Civil Code Section 2782.8, as amended. To the extent this Agreement is a “construction contract” as defined by California Civil Code section 2783, as amended, such duties of Consultant to indemnify will not apply when to do so would be prohibited by California Civil Code Section 2782 as amended. 11.6 The Parties expressly agree that any reasonable payment, attorney's fee, cost or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation plan is included as a loss, expense or cost for the purposes of this Section 11. 11.7 Acceptance by City of Consultant’s services and duties will not operate as a waiver of City’s rights under this Section 11. 11.8 The parties expressly agree that this Section 11 will survive the expiration or early termination of the Agreement. ATTY/AGR.2021.149/ESA (Transit District CEQA) (Page 4 of 26)