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Agmt 2012 Bay Area Homebuyer Agency (2)
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Agmt 2012 Bay Area Homebuyer Agency (2)
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10/9/2012 9:18:53 AM
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10/9/2012 9:18:52 AM
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CM City Clerk-City Council
CM City Clerk-City Council - Document Type
Agreement
Document Date (6)
7/1/2012
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PERM
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Reso 2012-077
(Approved by)
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\City Clerk\City Council\Resolutions\2012
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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 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. <br /> Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, <br /> officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, <br /> expenses, and costs (including without limitation, attorney's fees and costs and fees of litigation) <br /> (collectively, "Liability ") of every nature arising out of or in connection with Consultant's performance of the <br /> Services or its failure to comply with any of its obligations contained in this Agreement, except such Liability <br /> caused by the sole negligence or willful misconduct of City. <br /> The Consultant's obligation to defend and indemnify shall not be excused because of the Consultant's <br /> inability to evaluate Liability or because the Consultant evaluates Liability and determines that the <br /> Consultant is not liable to the claimant. The Consultant must respond within 30 days, to the tender of any <br /> claim for defense and indemnity by the City, unless this time has been extended by the City. If the <br /> Consultant fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any <br /> other remedy authorized by law,.so much of the money due the Consultant under and by virtue of this <br /> Agreement as shall reasonably be considered necessary by the City, may be retained by the City until <br /> disposition has been made of the claim or suit for damages, or until the Consultant accepts or rejects the <br /> tender of defense, whichever occurs first. <br /> With respect to third party claims against the Consultant, the Consultant waives any and all rights of any <br /> type to express or implied indemnity against the Indemnitees. <br /> Notwithstanding the forgoing, to the extent this Agreement is a "construction contract" as defined by <br /> California Civil Code Section 2782, 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 /> 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 /> Consulting Services Agreement between July 1, 2012 <br /> City of San Leandro and BAHBA Page 7 of 13 <br /> 989837 -1 <br />
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