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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
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