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<br />Energy Services Agreement 8 04/21/2026
<br />and limits of insurance coverage ESCO must maintain, and any approval of such insurance by
<br />CITY, are not intended to and shall not in any manner limit or qualify the liabilities and
<br />obligations otherwise assumed by ESCO pursuant to this Agreement, including but not limited
<br />to any provisions in this Agreement concerning indemnification.
<br />e. Failure to comply with any of the insurance requirements in this Agreement, including, but not
<br />limited to, a lapse in any required insurance coverage during the term of this Agreement, shall
<br />be a material breach of this Agreement. In the event that ESCO fails to comply with any such
<br />insurance requirements in this Agreement, in addition to any other remedies CITY may have,
<br />CITY may, at its sole option, (i) immediately terminate this Agreement; or (ii) order ESCO to stop
<br />work under this Agreement and/or withhold any payment that becomes due to ESCO until
<br />ESCO demonstrates compliance with the insurance requirements in this Agreement.
<br />23. INDEMNIFICATION, DUTY TO DEFEND, AND HOLD HARMLESS.
<br />a. Except for consequential, special, or indirect damages or claims, ESCO (including ESCO’s
<br />agents, employees, and subcontractors, if any) shall indemnify, defend, and hold harmless
<br />CITY, its officials, officers, agents, employees, and volunteers from and against any and all
<br />claims, demands, actions, causes of action, proceedings (including but not limited to legal and
<br />administrative proceedings of any kind), suits, fines, penalties, judgments, orders, levies, costs,
<br />expenses, liabilities, losses, damages, or injuries, in law or equity, including reasonable
<br />attorney’s fees and other related litigation costs and expenses (collectively, “Claims”), of every
<br />nature caused by, arising out of, or in connection with ESCO’s performance of the Services or
<br />its failure to comply with any of its obligations contained in this Agreement, except where
<br />caused by the active negligence, sole negligence, or willful misconduct of CITY, and only to the
<br />extent such Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful
<br />misconduct of ESCO. Further, in no event shall the cost to defend charged to the ESCO
<br />exceed the ESCO’s proportionate percentage of fault.
<br />b. ESCO (including ESCO’s agents, employees, and subcontractors, if any) shall indemnify,
<br />defend, and hold harmless CITY, its officials, officers, agents, employees, and volunteers from
<br />and against any and all Claims (except for consequential, special, or indirect damages or
<br />claims) caused by, arising under, or resulting from any violation, or claim of violation, that CITY
<br />might suffer, incur, or become subject to by reason of, or oc curring as a result of, or allegedly
<br />caused by, any work performed pursuant to this Agreement.
<br />c. All terms and provisions within this Section 8 shall survive the termination of this Agreement.
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<br />24. ANTI-ASSIGNMENT CLAUSE. Because the CITY has relied on the particular skills of ESCO in
<br />entering into this Agreement, ESCO shall not assign, delegate, or otherwise transfer any duty or
<br />right under this Agreement, including as to any portion of the Services, without the CITY’s prior
<br />written consent. Any purported assignment, delegation, subcontract, or other transfer made
<br />without the CITY ’s consent shall be void and ineffective. Unless ESCO assigns this entire
<br />Agreement, including all rights and duties herein, to a third party with the CITY’s prior written
<br />consent, ESCO shall be the sole payee under this Agreement. Any and all payments made
<br />pursuant to the terms of this Agreement are otherwise not assignable.
<br />
<br />25. ATTORNEY'S FEES AND COSTS. In any action to enforce the terms and conditions of this
<br />Agreement, the prevailing Party shall be entitled to reasonable attorney’s fees and costs.
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<br />Docusign Envelope ID: 2FACAA06-C000-8E3B-8363-DD2D556A0D51Docusign Envelope ID: 8C132635-A597-8F5D-8082-3EB7B8AE19BF
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