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· Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. With respect to Contractor's professional services, Contractor will indemnify and hold City, its officers, officials, directors and employees ("Indemnitees") harmless from and against loss, damage, liability, expense or cost to the extent caused by the negligent acts, errors or omissions of Contractor in the performance of its professional services set forth in this Agreement. Further, as respects Contractor's operations (as opposed to Contractor's professional services), Contractor shall provide Indemnitees with a defense from losses, damages, liabilities, expenses and costs arising out of bodily injury or property damage as an additional insured to Contractor's commercial general liability policy. Approval of the insurance contracts does not relieve the Contractor or subcontractors from liability under this paragraph. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for emollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Section 6. 6.1 STATUS OF CONSULTANT. Independent Contractor. At all times during the tenn of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shaU have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and aU claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to emoll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. 6.2 Consultant No Ae:ent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity Consulting Services Agreement between City of San Leandro and BMS Design Group Page 8 of32