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4.4 Remedies. In addition to any other remedies City may have if Contractor fails to provide or <br />maintain any insurance policies or policy endorsements to the extent and within the time herein <br />required, City may, at its sole option exercise any of the following remedies, which are alternatives <br />to other remedies City may have and are not the exclusive remedy for Contractor's breach: <br />■ Obtain such insurance and deduct and retain the amount of the premiums for such insurance <br />from any sums due under the Agreement; <br />■ Order Contractor to stop work under this Agreement or withhold any payment that becomes <br />due to Contractor hereunder, or both stop work and withhold any payment, until Contractor <br />demonstrates compliance with the requirements hereof; and/or <br />■ Terminate this Agreement. <br />Section 5. INDEMNIFICATION AND CONTRACTOR'S RESPONSIBILITIES. Contractor shall indemnify, <br />defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and <br />volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without <br />limitation, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature arising out of or in <br />connection with Contractor's performance of the Services or its failure to comply with any of its obligations contained <br />in this Agreement, except such Liability 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 inability to <br />evaluate Liability or because the Contractor evaluates Liability and determines that the Contractor is not liable to the <br />claimant. The Contractor must respond within 30 days, to the tender of any claim for defense and indemnity by the <br />City, unless this time has been extended by the City. If the Contractor fails to accept or reject a tender of defense <br />and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due the <br />Contractor under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be <br />retained by the City until disposition has been made of the claim or suit for damages, or until the Contractor accepts <br />or rejects the tender of defense, whichever occurs first. <br />Notwithstanding the forgoing, to the extent this Agreement is a "construction contract" as defined by California Civil <br />Code Section 2782, as may be amended from time to time, such duties of Contractor to indemnify shall not apply <br />when to do so would be prohibited by California Civil Code Section 2782. <br />In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this <br />Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System <br />(PERS) to be eligible for enrollment in PERS as an employee of City, Contractor shall indemnify, defend, and hold <br />harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of <br />Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on <br />such contributions, which would otherwise be the responsibility of City. <br />Section 6. STATUS OF CONTRACTOR. <br />Non -Professional Services Agreement between City of San Leandro and [MM/DD/YYYY] <br />[NOTE TO STAFF: DATE IS OPTIONAL. IF USED, IT CAN BE THE EFFECTIVE DATE OR THE LAST REVISED <br />DATE TO KEEP TRACK OF VERSIONS THROUGH DEVELOPMENT.] <br />for Page 34 of 16 <br />