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(ii) Terminate this Agreement.
<br /> Exercise of any of the above remedies, however, is an alternative to other
<br /> remedies the City may have and is not the exclusive remedy for Consultant's
<br /> failure to maintain insurance or secure appropriate endorsements.
<br /> (11) Indemnification - Consultant's Responsibility. It is understood and agreed that
<br /> Consultant has the technical skills necessary to perform the work agreed to be performed under
<br /> this Agreement, that City relies upon the skills of Consultant to do and perform Consultant's
<br /> work in a skillful and professional manner, and Consultant thus agrees to so perform the work.
<br /> Acceptance by City of the work performed under this Agreement does not operate as a
<br /> release of said Consultant from responsibility for the work performed. It is further understood
<br /> and agreed that Consultant is apprised of the scope of the work to be performed under this
<br /> Agreement and Consultant agrees that said work can and shall be performed in a fully competent
<br /> manner.
<br /> Consultant shall indemnify, defend, and hold City, its officers, employees, agents, and volunteers
<br /> harmless from and against any and all liability, claims, suits, actions, damages, and causes of
<br /> action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any
<br /> violation of any federal, state, or municipal law or ordinance, or other cause to the extent arising
<br /> from negligent or wrongful acts or omissions of Consultant, its employees, subcontractors, or
<br /> agents, except for any such claim arising out of the active negligence, sole negligence, or willful
<br /> misconduct of the City, its officers, employees, agents, or volunteers. It is understood that the
<br /> duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in
<br /> section 2778 of the California Civil Code. Acceptance of insurance certificates and
<br /> endorsements required under this Agreement does not relieve Consultant from liability under this
<br /> indemnification and hold harmless clause. This indemnification and hold harmless clause shall
<br /> apply whether or not such insurance policies shall have been determined to be applicable to any
<br /> of such damages or claims for damages.
<br /> In addition to the general indemnification provided above, Consultant, at its own
<br /> expense, will also specifically protect, defend and hold harmless City, its officers, employees,
<br /> agents, and volunteers against any action brought against them based on any claim that any
<br /> software of the Consultant infringed a United States patent, copyright, trademark or service mark
<br /> provided that (a) City promptly notify Consultant in writing of any notice of such claim; (b)
<br /> Consultant shall have the control of the defense of any action on such claim and all negotiations
<br /> for its settlement or compromise; provided, however, that Consultant shall not have any authority
<br /> to negotiate any judgments for liability against the City; and (c) the City shall permit Consultant,
<br /> at Consultant's option and expense, either to procure for the City the right to continue using the
<br /> software or modify the software so that it becomes non - infringing.
<br /> (12) Warranties. With respect to the software of Consultant, Consultant warrants that:
<br /> ATTY /AGR/2010.119
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