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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 altematives 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, to the <br /> fullest extent allowed by law, with respect to all Services performed in connection with this Agreement, <br /> defend with counsel acceptable to City, indemnify and hold City, its officers, employees, agents, and <br /> volunteers, harmless from and against any and all claims that arise out of, pertain to, or relate to the <br /> negligence, recklessness, or willful misconduct of the Consultant, ( "Claims "). Consultant will bear all <br /> losses, costs, damages, expense and liability of every kind, nature and description that arise out of, pertain <br /> to, or relate to such Claims, whether directly or indirectly ( "Liability "). Such obligations to defend, hold <br /> harmless and indemnify the City shall not apply to the extent that such Liabilities are caused by the sole <br /> negligence, active negligence, or willful misconduct of the City. <br /> With respect to third party claims against the Consultant, the Consultant waives any and all rights of any <br /> type of expressed or implied indemnity against the Indemnitees. <br /> Notwithstanding the forgoing, to the extent this Agreement is a "construction contract" as defined by <br /> Califomia Civil Code section 2783, as may be amended from time to time, such duties of Consultant to <br /> indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782. <br /> Section 6. STATUS OF CONSULTANT. <br /> 6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall <br /> be an independent contractor and shall not be an employee of City. City shall have the <br /> right to control Consultant only insofar as the results of Consultant's services rendered <br /> pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; <br /> however, otherwise City shall not have the right to control the means by which Consultant <br /> accomplishes services rendered pursuant to this Agreement. Notwithstanding any other <br /> City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant <br /> and any of its employees, agents, and subcontractors providing services under this <br /> Agreement shall not qualify for or become entitled to, and hereby agree to waive any and <br /> all claims to, any compensation, benefit, or any incident of employment by City, including <br /> Consulting Services Agreement between Project No. 08- 593 -52 -239 <br /> City of San Leandro and Carollo Engineers, Inc. Page 8 <br />