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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 by law, with respect to all Services performed in connection with this Agreement,
<br />defend with counsel acceptable to City, indemnify and hold City, its officers, employees, agents, and
<br />authorized volunteers, harmless from and against any and all claims to the extent arising out of, pertaining
<br />to, or relating to the negligence, recklessness, or willful misconduct of the Consultant, ("Claims").
<br />Consultant will bear all losses, costs, damages, expense and liability of every kind, nature and description
<br />that arise out of, pertain to, or relate to such Claims, whether directly or indirectly ("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 sole negligence, active negligence, or willful misconduct of the City.
<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 />Section 6. STATUS OF CONSULTANT.
<br />6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall
<br />be an independent contractor and shall not be an employee of City. City shall have the
<br />right to control Consultant only insofar as the results of Consultant's services rendered
<br />pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3;
<br />however, otherwise City shall not have the right to control the means by which Consultant
<br />accomplishes services rendered pursuant to this Agreement. Notwithstanding any other
<br />City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant
<br />and any of its employees, agents, and subcontractors providing services under this
<br />Agreement shall not qualify for or become entitled to, and hereby agree to waive any and
<br />all claims to, any compensation, benefit, or any incident of employment by City, including
<br />but not limited to eligibility to enroll in the California Public Employees Retirement System
<br />(PERS) as an employee of City and entitlement to any contribution to be paid by City for
<br />employer contributions and/or employee contributions for PERS benefits.
<br />Consulting Services Agreement between 08-593-52-230
<br />City of San Leandro and Brown and Caldwell Page 8
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