Agmt 2014 Aliquot Associates Inc

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• 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide (� or maintain any insurance policies or policy endorsements to the extent and within.the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for • Consultant's breach: • Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; • Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder,or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or • Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall indemnify,defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any and all liability, loss, damage,claims, • expenses, and costs (including without limitation, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature arising out of or in connection with Consultant's performance of the Services or its failure to comply with any of its obligations contained in this Agreement, to the extent that the above are actually caused by the negligent acts,error or omissions of consultant, except such Liability caused by the negligence or willful misconduct of City or of any third party. The Consultant's obligation to defend and indemnify shall not be excused because of the Consultant's inability to evaluate Liability or because the Consultant evaluates Liability and determines that the Consultant is not liable to the claimant. The Consultant must respond within 30 days, to the tender of any claim for defense and indemnity by the City, unless this time has been extended by the City. If the Consultant fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due the Consultant under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the claim or suit for damages,or until the Consultant accepts or rejects the tender of defense,whichever occurs first.. Indemnitor shall be responsible to pay an amount of such costs equal to the finally determined percentage of liability based upon the comparative fault of the Indemnitor. With respect to third party claims against the Consultant,the Consultant waives any and all rights of any type to express indemnity against the Indemnitees. Notwithstanding the forgoing, to the extent this Agreement is a°construction contract°as defined by California Civil Code Section 2782, as may be amended from time to time, such duties of consultant to indemnify shalfnot apply when to do so would be prohibited by California Civil Code Section 2782. C. ) Consulting Services Agreement between East San Leandro Bikeway Design.Project City of San Leandro and Aliquot Associates Page 7 of 14 Project No. 120-28-189 •