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or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to
<br />property, or violation of law. It is understood that the duty of Consultant to indemnify and hold harmless
<br />includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City
<br />of insurance certificates and endorsements required under this Agreement does not relieve Consultant
<br />from liability under this indemnification and hold harmless clause. This indemnification and hold
<br />harmless clause shall apply to any damages or claims for damages whether or not such insurance policies
<br />shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and
<br />agrees to the provisions of this Section and that it is a 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 would
<br />otherwise be the responsibility of City.
<br />8. GENERAL. PROVISIONS
<br />8.1 Personnel. At any time, CITY may request removal or replacement of personnel assigned by MMC and
<br />MMC shall promptly replace such personnel. The time for any deliverables required or any increase in
<br />costs shall be adjusted to reflect any adverse impact resulting from the change in personnel.
<br />8.2 Gratuities Gifts, Conflict of Interest. MMC shall, at all times, comply with any CITY policies regarding
<br />gifts, gratuities, or conflicts of interest. At no time shall MMC, an employee, agent, director, or contractor
<br />offer or accept any gift or gratuity from a third party who may be subject to findings resulting from
<br />Services, to or from any CITY official, employee, contractor, or agent, or from any other party where such
<br />gift or gratuity could be construed as a conflict of interest. MMC, its officers, directors, employees,
<br />agents, and contractors shall avoid all conflicts of interest, financial or otherwise, or the appearance
<br />thereof, in the performance of this Agreement or the applicable Services.
<br />8.3 Dilute Resolution. Any dispute relating to this Agreement shall be submitted for binding arbitration
<br />under the Commercial Arbitration Rules of the American Arbitration Association and judgment on any
<br />award entered therein may be entered in any court of competent jurisdiction. The arbitrator's decision
<br />shall be final and binding on the parties. Such arbitration shall be held in the State of California. In all
<br />cases, the prevailing party to such dispute shall be entitled to recover costs and expenses, including
<br />reasonable attorney's fees, as the arbitrator deems appropriate.
<br />8.4 Ownership of Work Product. MMC shall retain all right, title, and interest in and to the processes,
<br />procedures, models, inventions, software, ideas, know-how, and any and all other patentable or
<br />copyrightable material used, developed, or reduced to practice in the performance of this Agreement.
<br />Upon payment therefore, CITY shall be granted all right, title, and interest in and to the reports, charts,
<br />graphs, and other deliverables produced by MMC in the performance of this Agreement.
<br />8.5 Assi ent. Neither Party may assign this Agreement or any of its rights or obligations hereunder
<br />without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
<br />Any assignment without such prior written consent shall be void. Notwithstanding the foregoing, the
<br />Parties hereto may assign all or part of this Agreement immediately, without the prior written consent of
<br />the non-assigning Party (a) to any successor in interest to the assigning Party who expressly assumes
<br />responsibility for the assigning Party's obligations hereunder; or (b) if necessary to satisfy the rules,
<br />regulations and/or orders of any federal or state governmental agency or body. Any violation of the
<br />provisions of this Section shall render this Agreement voidable at the option of the non-assigning Party.
<br />8.6 Insurance. MMC shall maintain in full force and effect insurance as specified in Exhibit A, attached
<br />hereto and incorporated by reference herein.
<br />8.7 Severability. In the event that any portion of this Agreement is held to be unenforceable, the
<br />unenforceable portion shall be construed as nearly as possible to reflect the original intent of the parties
<br />and the remainder of the provisions shall remain in full force and effect.
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