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fees) due to, or caused, or claimed to have been caused by in whole or in part, the acts (active or passive) or omissions by METRICOM, its officers, employees, sub-licensees, subcontractors or agents or the passive negligence of the City, it Council, officers or employees. METRICOM's obligations to indemnify and hold harmless exclude only such claim, loss or liability which is solely due to the active negligence or willful misconduct of CITY and/or its officers, employees, sub- permittees, subcontractors, or agents. All METRICOM's obligations under this SECTION are intended to apply to the fullest extent permitted by law and shall survive the expiration or sooner termination of this AGREEMENT. In any action or claim against CITY in which METRICOM is defending CITY, CITY shall have the right to approve legal counsel providing CITY's defense. The duty to indemnify and hold harmless as set forth above shall include the duty to defend as set forth in Section 2778 of the California Civil Code provided however that nothing shall be construed to require METRIC OM to indemnify CITY, its officers, agents and employees against any responsibility or liability in contravention of Section 2782 of the California Civil Code. PART V - INSURANCE & SECURITIES Section 1. INSURANCE REQUIREMENTS. METRIC OM agrees to have and maintain the insurance policies set forth in EXHIBIT "E," entitled "INSURANCE," which is attached hereto and incorporated fully herein. All policies, endorsements, certificates and/or binders shall be subject to approval by the City Attorney of the CITY as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Attorney. METRICOM agrees to provide CITY with a copy of said policies, certificates and endorsements or declaration pages before any work commences under this AGREEMENT. Section 2. SECURITY INSTRUMENTS. Prior to the commencement of any work under this AGREEMENT, METRICOM shall furnish or cause to be furnished to CITY a good and sufficient bond, substantially in the form attached hereto as EXHIBIT "F," entitled "BOND FORM," for the minimum amount of $5.000, or such other comparable security instrument that is approved by CITY's City Attorney, securing the faithful performance by METRIC OM of all the work, construction and installation required to be performed by METRIC OM under this AGREEMENT, within the time periods set forth in this AGREEMENT. PART VI· MISCELLANEOUS Section 1. INDEPENDENT CONTRACTOR. It is understood and agreed that METRICOM, in the performance of the work and SERVICES agreed to be performed by METRICOM under this AGREEMENT, shall act as and be an independent contractor and not an agent or employee of CITY; and as an independent contractor, METRIC OM shall obtain no rights to retirement benefits or other benefits which accrue redwood3.doc 10 9/21195 · 'r-'- I