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<br />hal1111ess the City and its officials, officers, employees, agents, and volunteers from and against
<br />any and all losses, liability, claims, suits, actions, damages, and eauses of action arising out of
<br />any personal injury, bodily injury, loss ofli fe, or damagc to property, or any violation of any
<br />federal, state, or municipal law or ordinancc, to the extent caused, in whole or in part, by the
<br />willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors,
<br />or agents, by acts fl.)r which they could be hcld strictly liable, or by the quality or character of
<br />their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of
<br />Ii/e, damage to propcrty, or violation of law arises wholly from the negligence or willful
<br />misconduct ofthe City or its ofTicers, employees, agents, or volunteers and (2) the actions of
<br />Consultant or its employees, subcontractor, or agcnts have contributed in no part to the injury,
<br />Joss of life, damage to property, or violation of law. It is understood that the duty of Consultant
<br />to indemnify and hold harmless includes the duty to defend as sct forth in Section 2778 of the
<br />Califolllia Civil Code. Acceptance by City of insurance certificates and endorsements required
<br />under this Agreement does not relieve Consultant from liability under this indemnification and
<br />hold harmless clause. This indemnification and hold hamlless clause shall apply to any damages
<br />or claims 1l.)r darnages whether or not such insurance policies shall have been detennined to
<br />apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of
<br />this Section and that it is a rnaterial clement of consideration.
<br />
<br />In the event that Consultant or any employee, agent, or subcontractor of Consultant providing
<br />services under thi s Agreement is detennined by a court of competent jurisdiction or the
<br />California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as
<br />an employee of City, Consultant shall indemnify, defend, and hold hannless City for the
<br />payment of any employee and/or employer contributions for PERS benefits on behalf of
<br />Consultant or its employees, agents, or subcontractors, as well as for the payment of any
<br />penalties and interest on such contributions, which would otherwise be the responsibility of City.
<br />
<br />Section 6.
<br />
<br />6.1
<br />
<br />STATUS OF CONSULTANT.
<br />
<br />Independent Contractor. At all times during the term of this Agreement,
<br />Consultant shall be an independent contractor and shall not be an employee of
<br />City. City shall have the right to control Consultant only insofar as the results of
<br />Consultant's services rendered pursuant to this Agreement and assignment of
<br />personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
<br />the right to control the means by which Consultant accomplishes services
<br />rendered pursuant to this Agreement. Notwithstanding any other City, state, or
<br />federal policy, rule, regulation, law, or ordinanee to the contrary, Consultant and
<br />any of its employecs, agents, and subcontractors providing services under this
<br />Agreement shall not qualify for or become entitled to, and hereby agree to waive
<br />any and all claims to. any compensation, benefit, or any incident of employment
<br />by City, including but not limited to eligibility to enroll in the Califomia Public
<br />Employees Retircmcnt System (PERS) as an employee of City and entitlement to
<br />any contribution to be paid by City for employer contributions and/or cmployee
<br />contributions for PERS benefits.
<br />
<br />H esperian Boulevard/Lewelling Intersectiun Traffic Assessrnenl
<br />
<br />Nuvt.;mber 13, 2006
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