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4.5.7 Variation. The City may approve a variation in the foregoing insurance
<br />requirements, upon a determination that the coverage, scope, limits, and forms of
<br />such insurance are either not commercially available, or that the Cites interests
<br />are otherwise fully protected.
<br />4.6 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 />Consultants breach,
<br />^ Obtain such insurance and deduct and retain the amount of the premiums for such
<br />insurance from any sums due under the Agreemeniy
<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
<br />indemnify, defend with counsel reasonably acceptable to the City, and hold harmless the City and its
<br />officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims,
<br />suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or
<br />damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent
<br />caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its
<br />employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality
<br />or character of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of
<br />life, damage to property, or violation of law arises wholly from the negligence or willful misconduct of the
<br />City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees,
<br />subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
<br />violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the
<br />duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance
<br />certificates and endorsements required under this Agreement does not relieve Consultant from liability
<br />under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall
<br />apply to any damages or claims for damages whether or not such insurance policies shall have been
<br />determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the
<br />provisions of this Section and that it is a material element of consideration.
<br />I n 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 Employees
<br />Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall
<br />indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions
<br />for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the
<br />Consulting Services Agreement between April 5, 2004
<br />City of San Leandro and Chandler Asset Management, I nc. Pag~
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