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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 forms of
<br />such insurance are either not commercially available, or that the City's interests
<br />are otherwise fully protected.
<br />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
<br />indemnify, defend with counsel selected by Consultant's Insurance Carrier and reasonably acceptable to
<br />the City, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and
<br />against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any
<br />personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or
<br />municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent
<br />acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be
<br />held strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall
<br />not 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) the
<br />actions of 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 to indemnify
<br />and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code.
<br />Acceptance by City of insurance certificates and endorsements required under this Agreement does not
<br />relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification
<br />and hold harmless clause shall apply to any such damages or claims for damages whether or not such
<br />insurance policies shall have been determined to apply. By execution of this Agreement, Consultant
<br />acknowledges and 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 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 August 13, 2004
<br />City of San Leandro and Winzler and Kelly Consulting Engineers Page 7 of 20
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