Notwithstanding the above, if City terminates the Agreement during year one, City shall provide the Consultant a cancellation fee in an amount equal to ten percent (10%) ofthe monthly management fee for the remainder ofthe first year. For this purpose, the monthly management fee shall be presumed to be the same as the average ofthe last four (4) months prior to service ofthe notice ofthe termination. Ifthe Agreement is terminated prior to four (4) months within the first year, the monthly management fee shall be based on the average ofthe preceding months to termination.
12. Termination in the Event ofDefault. Should Consultant fail to perform any of its. obligations hereunder, within the time and in the manner provided or otherwise violate any ofthe terms ofthis Agreement, the City may immediately terminate this Agreement by giving written notice of such termination, stating the reasons for such termination. Consultant shall be compensated as provided immediately above~ provided, however, there shall be deducted from such amount the amount of damages, if any, sustained by the City by virtue of Consultant's breach ofthis Agreement.
Consultant may terminate this Agreement upon default by the City which is not cured within 30 days following written notice to the City stating the basis of such default.
13. Conflict of Interest. Consultant acknowledges, represents and warrants that Consultant shall avoid all conflicts of interest (as defined under any federal, state or local statute, rule or regulation, or at common law) with respect to this Agreement. Consultant further acknowledges, represents and warrants that Consultant has no business relationship or arrangement of any kind with any City official or employee with respect to this Agreement. Consultant acknowledges that in the event that Consultant shall be found by any judicial or administrative body to have any conflict of interest (as defined above) with respect to this Agreement, all consideration received under this Agreement shall be forfeited and returned to City forthwith. This provision shall survive the termination of this Agreement for one (1) year.
14. Indemnity. To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City and its officers, employees, elected and appointed officials, and volunteers from and against any and all claims, demands, causes of action, lawsuits (whether at law, equity or both), proceedings, liabilities, losses, damages, expenses, costs (including without limitation attorneys' fees and costs and expert witness fees), judgments, penalties, and liens ofevery nature arising out ofor claimed to arise from, directly or indirectly, out of Consultant's negligence, recklessness, or willful misconduct in the performance ofwork hereunder or its failure to comply with any of its obligations contained in the Agreement, or its failure to comply with any current or prospective law, 5 - C1202-175
except to the extent such loss or damage was caused by the sole negligent acts including negligence and/or recklessness, or willful misconduct of the City. This indemnification obligation shall survive this Agreement and shall not be limited by any term of any insurance policy required underthis Agreement.
15. Insurance.
CITY's Insurance. CITY shall obtain and maintain throughout the duration ofthis agreement:
a. Commercial General Liability insurance, or equivalent, written on an occurrence form, with limits not less than $1,000,000 per occurrence.
Such insurance shall name the CONSULTANT an Additional Covered Party and such insurance shall be primary and not seek contribution from liability insurance maintained by the CONSULTANT.
b. All risk property insurance, on a replacement cost basis, including coverage for loss of rental income. Such insurance shall waive the insurer(s) right of subrogation against CONSULTANT.
c. All such policies shall provide not less than thirty (30) day's written notice of cancellation to CONSULTANT. Comm,ercial insurance shall be placed with insurer(s) maintaining an A.M. Best rating not less than A-VII.
CONSULTANT's Insurance. CONSULTANT shall maintain, at its own expense, throughout the duration ofthis agreement, the following insurance:
a. Commercial General Liability insurance written on an occurrence form, with limits not less than $1,000,000, including CITY, its officials, officers, employees and volunteers as additional insured to the extent of CONSULTANT's indemnity obligations excess ofthe coverage afforded by CITY.
b. Business Auto Liability insurance with not less than $1,000,000 per accident, covering owned, hired and non-owned automobiles. c. Professional Liability insurance with limits not less than $1,000,000 any one claim.
d. Workers' Compensation insurance in accordance with the statutory requirements ofthe State of California, and Employer's Liability insurance with limits of not less than $1,000,000 each accident for bodily injury or disease. The workers' compensation insurance shall 6- C1202-175