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losses and expenses including attorney fees (collectively "Losses") arising out of the performance of the Services, caused or claimed to be caused by the acts, errors and/or omissions of Consultant, or any Consultant Personnel or anyone for whose acts any of them may be liable (collectively, "Responsible Parties"). Consultant's responsibilities under this Section 11 include liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of City, which may be in combination with the acts or omissions of any Responsible Party, provided that Consultant's duty to Indemnify will not include any Losses arising from the sole negligence or willful misconduct of City. 11.2 Without limiting the generality of the forgoing, Consultant shall Indemnify, City from and against any Losses that are based upon an allegation that any part of the Services infringes or otherwise violates the intellectual property rights of such third party (an "Infringement Claim"). Consultant shall also Indemnify City from and against any final award of damages or settlement amounts for release of liability from any such Infringement Claim. In addition, if an Infringement Claim is made, or if Consultant has reason to believe such a claim may be made, Consultant may replace or modify the Services to make them non -infringing, or procure a license for City under the rights allegedly infringed. 11.3 Notwithstanding Consultant's obligation to defend City hereunder, City has the right to conduct its own defense and seek reimbursement for reasonable costs of defense from Consultant, if City chooses to do so. 11.4 Consultant agrees to pay any and all costs City incurs enforcing the provisions set forth in this Section 11. 11.5 Subsection 11.1 notwithstanding, in accordance with California Civil Code Section 1668, as amended, nothing in this Agreement will be construed to exempt the City from its own fraud, willful injury to the person or property of another, or violation of law. 11.6 Nothing contained in this Agreement will be construed to require Consultant to Indemnify Indemnitees against any responsibility or liability in contravention of California Civil Code Section 2782.8, as amended. To the extent this Agreement is a "construction contract" as defined by California Civil Code section 2783, as amended; such duties of Consultant to indemnify will not apply when to do so would be prohibited by California Civil Code Section 2782 as amended. 11.7 The Parties expressly agree that any reasonable payment, attorney's fee, cost or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation plan is included as a loss, expense or cost for the purposes of this Section 11. REV: 01-13-2021 PR