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endorsements for each subcontractor. All coverages for subcontractors
<br />shall be subject to all of the requirements stated herein.
<br />4.4.7 Variation. The City may approve a variation in the foregoing insurance
<br />requirements, upon a determination that the coverage, scope, limits, and
<br />forms of such insurance are either not commercially available, or that the
<br />City's interests are otherwise fully protected.
<br />4.5 Remedies. In addition to any other remedies City may have if Consultant fails to
<br />provide or maintain any insurance policies or policy endorsements to the extent
<br />and within the time herein required, City may, at its sole option exercise any of
<br />the following remedies, which are alternatives to other remedies City may have
<br />and are not the exclusive remedy for Consultant's breach:
<br />^ Obtain such insurance and deduct and retain the amount of the premiums for
<br />such insurance from any sums due under the Agreement;
<br />^ Order Consultant to stop work under this Agreement or withhold any payment
<br />that becomes due to Consultant hereunder, or both stop work and withhold
<br />any payment, until Consultant demonstrates compliance with the requirements
<br />hereof; and/or
<br />^ Terminate this Agreement,
<br />Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES.
<br />Consultant shall indemnify, defend with counsel reasonably acceptable to the City, and hold
<br />harmless the City and its officials, officers, employees, agents, and volunteers from and against
<br />any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of
<br />any personal injury, bodily injury, loss of life, or damage to properly, or any violation of any
<br />federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the
<br />willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors,
<br />or agents, by acts for which they could be held strictly liable, or by the quality or character of
<br />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
<br />misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of
<br />Consultant or its employees, subcontractor, or agents have contributed in no part to the injury,
<br />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 2778 of the
<br />California Civil Code. Acceptance by City of insurance certificates and endorsements required
<br />under this Agreement does not relieve Consultant from liability under this indemnification and
<br />hold harmless clause. This indemnification and hold harmless clause shall apply to any damages
<br />or claims for damages whether or not such insurance policies shall have been determined to
<br />apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of
<br />this Section and that it is a material element of consideration.
<br />Consulting Services Agreement between May 3, 2004
<br />City of San Leandro and ECS Imaging, Inc. Page 7 of 19
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