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any payment, until Consultant demonstrates compliance with the requirements
<br />hereof; and/or
<br />^ Terminate this Agreement.
<br />Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES
<br />Consultant shall indemnify, defend with counsel reasonably acceptable to the Agency, and hold
<br />harmless the Agency and its officials, officers, employees, agents, and volunteers from and
<br />against any and all losses, liability, claims, suits, actions, damages, and causes of action arising
<br />out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of
<br />any federal, state, or municipal law or ordinance, 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 for which they could be held 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 />life, damage to property, or violation of law arises wholly from the negligence or willful
<br />misconduct of the Agency or its officers, employees, agents, or volunteers and (2) the actions of
<br />Consultant or its employees, subcontractor, or agents have contributed in no part to the injury,
<br />loss 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 set forth in Section 2778 of the
<br />California Civil Code. Acceptance by Agency of insurance certificates and endorsements
<br />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 to any damages or claims for damages whether or not such insurance policies shall have
<br />been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees
<br />to the provisions of this Section and that it is a material element of consideration.
<br />In the event that Consultant or any employee, agent, or subcontractor of Consultant providing
<br />services under this Agreement is determined 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 Agency, Consultant shall indemnify, defend, and hold harmless Agency 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
<br />Agency.
<br />Section 6. STATUS OF CONSULTANT.
<br />6.1 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 />Agency. Agency shall have the right to control Consultant only insofar as the
<br />results of Consultant's services rendered pursuant to this Agreement and
<br />assignment of personnel pursuant to Subparagraph 1.3; however, otherwise
<br />Agency shall not have the right to control the means by which Consultant
<br />accomplishes services rendered pursuant to this Agreement. Notwithstanding any
<br />other Agency, state, or federal policy, rule, regulation, law, or ordinance to the
<br />Consulting Services Agreement between April 12, 2004
<br />Redevelopment Agency of the City of San Leandro and Michael Manwaring History Walk Phase II
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