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4.4.5 Waiver of Subrogation. Consultant hereby agrees to waive subrogation which <br />any insurer or contractor may require from vendor by virtue of the payment of any <br />loss. Consultant agrees to obtain any endorsements that may be necessary to <br />affect this waiver of subrogation. <br />The Workers' Compensation policy shall be endorsed with a waiver of subrogation <br />in favor of the entity for all work performed by the consultant, its employees, <br />agents, and subcontractors. <br />4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its <br />policies or shall furnish separate certificates and certified endorsements for each <br />subcontractor. All coverages for subcontractors shall be subject to all of the <br />requirements stated herein. <br />4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide <br />or maintain any insurance policies or policy endorsements to the extent and within the time <br />herein required, City may, at its sole option exercise any of the following remedies, which <br />are alternatives to other remedies City may have and are not the exclusive remedy for <br />Consultant's breach: <br />^ Obtain such insurance and deduct and retain the amount of the premiums for such <br />insurance from any sums due under the Agreement; <br />^ Order Consultant to stop work under this Agreement or withhold any payment that <br />becomes due to Consultant hereunder, or both stop work and withhold any payment, <br />until Consultant demonstrates compliance with the requirements hereof; and/or <br />^ Terminate this Agreement. <br />Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall, to the <br />fullest extent allowed bylaw, with respect to all Services performed in connection with this Agreement, <br />defend with counsel acceptable to City (City's approval of counsel shall not be unreasonably withheld), <br />indemnify and hold City, its officers, employees, agents, and volunteers, harmless from and against any <br />and all claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of <br />the Consultant, ("Claims"). Consultant will bear all losses, costs, damages, expense and liability of every <br />kind, nature and description that arise out of, pertain to, or relate to such Claims, ("Liability'). Such <br />obligations to defend, hold harmless and indemnify the City shall not apply to the extent that such Liabilities <br />are caused by the negligence, active negligence, or willful misconduct of the City or any third party. <br />Notwithstanding the forgoing, to the extent this Agreement is a "construction contract" as defined by <br />California Civil Code section 2783, as may be amended from time to time, such duties of Consultant to <br />indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782. <br />Consulting Services Agreement between Project No. 961-83-054 <br />City of San Leandro and Winzler & Kelly Consulting Engineers Page 7 <br />