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4.4.5 Waiver of Subrogation. Contractor hereby agrees to waive subrogation which <br />any insurer or contractor may require from vendor by virtue of the payment of any <br />loss. Contractor agrees to obtain any endorsements that may be necessary to <br />affect this waiver of subrogation. <br />The Workers' Compensation policy shall be endorsed with a waiver of subrogation <br />in favor of the entity for all work performed by the Contractor, its employees, <br />agents, and subcontractors. <br />4.4.6 Subcontractors. Contractor shall include all subcontractors as insureds under its <br />policies or shall furnish separate certificates and endorsements for each <br />subcontractor. All coverages for subcontractors shall be subject to all of the <br />requirements stated herein. <br />4.5 Remedies. In addition to any other remedies City may have if Contractor 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 />Contractor'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 Contractor to stop work under this Agreement or withhold any payment that <br />becomes due to Contractor hereunder, or both stop work and withhold any payment, <br />until Contractor demonstrates compliance with the requirements hereof; and/or <br />■ Terminate this Agreement. <br />Section 5. INDEMNIFICATION AND CONTRACTOR'S RESPONSIBILITIES. <br />Contractor 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 Contractor'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 Contractor's obligation to defend and indemnify shall not be excused because of the Contractor's <br />inability to evaluate Liability or because the Contractor evaluates Liability and determines that the <br />Contractor is not liable to the claimant. The Contractor 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 />Contractor 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 Contractor 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 />Non -Professional Services Agreement between May 15, 2012 <br />City of San Leandro and George Salinas Tree Preservation Page 6 of 13 <br />