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<br /> I. To accomplish the objective of this Agreement, the Ciry and Surety agree as follows in order to
<br /> enable the City to release said funds to Surety without risk of incurring the costs of defense and
<br /> indemnity should Contractor and/or subcontractor and/or suppliers assert claims and/or
<br /> commence litigation against the City for funds that have been paid to Surety.
<br /> NOW THEREFORE, for valuable wnsideration, including, without limitation, [he mutual covenants
<br /> and conditions set forth in this Agreement, the parties agree as follows:
<br /> AGREEMENT
<br /> L The above recitals are not mere :ecitals but are terms of this Agreement.
<br /> 2. Within thirty (30) calendar days following the date of this Agreement, the City shall release to
<br /> Surety the Retained Funds. The City shall not be obligated to release funds to Surety in amounts
<br /> in excess of the Retained Funds.
<br /> 3. [n consideration for Ciry's release of the Retained Funds, Surety agrees to defend, indemnify,
<br /> and hold the City and its Affiliated Parties harmless from and against any and all pending and/or
<br /> future claims, demands, disputes, controversies, liabilities, damages, defaults, and/or legal
<br /> actions, whether in Iaw or in equity or in tort or contract, asserted against the City and/or its
<br /> Affiliated Parties by Contractor, the Operating Engineers' Health and Trust Fund, or any and all
<br /> Project subcontractors and/or suppliers including, without limitation, stop notice enforcement
<br /> actions, that in any way relate to or arise from the City's release of said Retained Funds to Surety
<br /> up to the amount of the Retained Funds released by the City. As used in this Agreement, the
<br /> term "Affiliated Parties" means the City, and its respective divisions, subsidiaries, affiliates,
<br /> administrators, attorneys, consultants, engineers, board members, officials, trustees, and directors
<br /> of each of them.
<br /> 4. In the event that Surety initiates a claim or lawsuit against some third party not a signatory to this
<br /> Agreement, which has as its subject matter the work on the Project, and that third party or some
<br /> other party to said action makes a claim against the City arising out of the release of the Retained
<br /> Funds, Surety shall defend, indemnify and hold harmless the City and its Affiliated Parties from
<br /> said claim up to the amount of the Retained Funds released by the City.
<br /> 5. This Agreement does not alter, modify, release, waive, or change any of Surety's obligations
<br /> owed to City pursuant to the Project Payment Bond and Faithful Performance Bond.
<br /> 6. Nothing in this Agreement shall modify, limit or waive any of the Parties' rights or obligation
<br /> under the Project Payment Bond and/or Faithful Performance Bond. In the event of any conflict
<br /> between a provision of the Project Payment Bond and/or Faithful Performance Bond and this
<br /> Agreement, the provision providing the greatest protection to City shall control.
<br /> 7. Should any Party commence litigation to enforce the terms of [his Agreement, the prevailing
<br /> party shall be entitled to its reasonable attorneys' fees and costs.
<br /> 8. This Agreement shall be govemed by California law.
<br /> ATTY/AGR/2011.001 S.CALI 2 Of 3
<br /> 080317
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