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REV: 03-06-24 MI
<br />11. Indemnification.
<br />11.1. To the fullest extent permitted by applicable law, Consultant agrees to
<br />defend, at Consultant’s expense and with counsel acceptable to City, indemnify, and
<br />save and hold harmless City, funding agencies, and all of their officers, directors,
<br />employees and agents, from and against any and all claims, suits, losses, causes of
<br />action, damages, liabilities, and expenses arising out of the Consultant’s negligence,
<br />recklessness, or willful misconduct under this Agreement, including all expenses of
<br />litigation and/or arbitration, court costs, and attorney’s fees, arising on account of or
<br />in connection with injuries to or the death of any person whomsoever, in any and all
<br />damages to property, regardless of possession or ownership, which injuries, death or
<br />damages arose out of or incident to any acts, omissions, negligence, recklessness,
<br />or willful misconduct of Consultant, its officials, officers, employees, agents,
<br />subcontractors and subconsultants related to the work being directly performed by
<br />or for the Consultant under the scope of this Agreement, or are caused in whole or
<br />part by reason of the acts or omissions or presence of the person or property of the
<br />Consultant or any of its employees, agents, or representatives and or suppliers,
<br />except such loss or damage which was caused by the active negligence, sole
<br />negligence or sole willful misconduct of the City. In the event of concurrent active
<br />negligence of City and its officers and employees, on the one hand, and Consultant
<br />and its officers, employees, agents, and servants, on the other hand, then the liability
<br />for any and all claims for injuries or damage to persons and/or property which arise
<br />out of terms and conditions of this Agreement shall be apportioned according to the
<br />California theory of comparative fault.
<br />11.2. Subsection 11.1 notwithstanding, in accordance with California Civil Code
<br />Section 1668, as amended, nothing in this Agreement will be construed to exempt
<br />the City from its own fraud, willful injury to the person or property of another, or
<br />violation of law.
<br />11.3. Nothing contained in this Agreement will be construed to require Consultant
<br />to Indemnify Indemnitees against any responsibility or liability in contravention of
<br />California Civil Code Section 2782.8, as amended. To the extent this Agreement is
<br />a “construction contract” as defined by California Civil Code section 2783, as
<br />amended, such duties of Consultant to indemnify will not apply when to do so would
<br />be prohibited by California Civil Code Section 2782 as amended.
<br />11.4. Acceptance by City of Consultant’s services and duties will not operate as a
<br />waiver of City’s rights under this Section 11.
<br />11.5. The parties expressly agree that this Section 11 will survive the expiration or
<br />early termination of the Agreement.
<br />12. Insurance. Consultant will obtain and maintain for the duration of the Agreement
<br />and any and all amendments, insurance against claims for injuries to persons or damage to
<br />property which may arise out of or in connection with performance of the Services by
<br />Consultant or Consultant’s agents, representatives, employees or subcontractors. The
<br />insurance carrier is required to maintain an A.M. Best rating of not less than “A-:VII”.
<br />ATTY/AGR.2024.014/Resource Conservation District (Compost Broker Program) (Page 4 of 13)
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