Agmt10 City and County of San Francisco SFPUC

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Claims arising under clause (b) of the preceding sentence and this indemnity shall not encompass Claims to the extent caused or resulting from Contractor's negligence or willful misconduct in the construction, placement, or installation of CCSF's MOA Work. 5.2. Indemnification Procedures On request, City shall defend any action, claim, or suit asserting a Claim covered by its indemnification obligations pursuant to this MOA. In any action or proceeding brought against any Indemnitee by reason of any Claim indemnified by City hereunder, City shall have the right to control the defense and to determine the settlement or compromise of any action or proceeding, provided that CCSF shall have the right, but not the obligation, to participate in the defense of any such Claim. City shall pay all costs that may be incurred by any Indemnitee, including reasonable attorneys' fees, court costs, and all other litigation expenses related to or arising from any Claim; provided that if City assumes the defense of a Claim and provides a reasonably competent attorney to represent CCSF, CCSF will not be entitled to reimbursement of its separate attorneys' fees and court costs incurred if CCSF elects to participate in the defense by retaining separate counsel to participate in the defense of such Claim.. For purposes of this MOA, reasonable attorneys' fees of CCSF shall be based on the fees regularly charged by private attorneys in San Francisco with comparable experience notwithstanding CCSF's use of its own attorneys. 5.3. Assumption of Risk; Waiver of Claims City shall assume all risk of (a) damage to any and all real or personal property owned or under the control or custody of City and (b) any bodily injury or death to and of City's officers, agents, employees, contractors or subcontractors, or their employees resulting from or incident to the performance of CCSF's MOA Work. This assumption of risk and waiver shall not be valid in the instance where a loss is caused by the active or sole negligence or intentional tort of an Indemnitee or with respect to CCSF's obligation pursuant to Section 3.2(a) above to repair, or cause its Contractor to repair, damages to City's infrastructure other than the street segments, park areas, and appurtenances identified on Exhibit B. Notwithstanding the foregoing waivers and releases, (i) with respect to any Claim arising from Contractor's acts or omissions, City, as an additional insured, shall be entitled to the benefits of any insurance coverage arising under Contractor's insurance as provided in Section 3.2(a), and (ii) with respect to any Claim arising from or related to any of CCSF's MOA Work, City shall be entitled to the benefit of any express or implied warranties from CCSF's contractors relating to CCSF's MOA Work, as set forth in subsection 3.2(e) [Transfer of Ownership and Warranties]. In connection with the foregoing releases, City acknowledges that it is familiar with Section 1542 of the California Civil Code, which reads: A general release does not extend to claims that the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. City acknowledges that the releases contained herein include all known and unknown, disclosed and undisclosed, and anticipated and unanticipated claims. City realizes and acknowledges that it has entered into this MOA in light of this realization and, being fully aware of this situation, it nevertheless intends to waive the benefit of Civil Code Section 1542, or any statute or other similar law now or later in effect. The releases contained herein shall survive any termination of this MOA. City of Redwood City MOA ver 030910