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within the time herein required, City may, at its sole option exercise any of the
<br />following remedies, which are alternatives to other remedies City may have and are not
<br />the exclusive remedy for 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
<br />shall indemnify, defend with counsel reasonably acceptable to the City, and hold harmless the City and
<br />its officials, officers, employees, agents, and volunteers from and against any and all losses, liability,
<br />claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury,
<br />loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance,
<br />to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of
<br />Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly
<br />liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not
<br />apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the
<br />negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2)
<br />the actions of Consultant or its employees, subcontractor, or agents have contributed in no part to the
<br />injury, loss of life, damage to property, or violation of law. It is understood that the duty of Consultant
<br />to indemnify and hold harmless includes the duty to defend as set forth in Section 277$ of the
<br />California Civil Code. Acceptance by City of insurance certificates and endorsements required under
<br />this Agreement does not relieve Consultant from liability under this indemnification and hold harmless
<br />clause. This indemnification and hold harmless clause shall apply to any damages or claims for
<br />damages whether or not such insurance policies shall have been determined to apply. By execution of
<br />this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a
<br />material element of consideration.
<br />In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services
<br />under this Agreement is determined by a court of competent jurisdiction or the California Public
<br />Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City,
<br />Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or
<br />employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or
<br />subcontractors, as well as for the payment of any penalties and interest on such contributions, which
<br />would otherwise be the responsibility of City.
<br />Section 6. STATUS OF CONSULTANT.
<br />61 Independent Contractor. At all times during the term of this Agreement, Consultant
<br />shall be an independent contractor and shall not be an employee of City. City shall
<br />have the right to control Consultant only insofar as the results of Consultant's services
<br />rendered pursuant to this Agreement and assignment of personnel pursuant to
<br />Washington Manor Park Aquatics Center September 26, 2005
<br />Pro}ect No. 210-62-002 Page 7 of 16
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