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5;2 PERS Indemnification. In the event that Consultant or any employee, agent, or
<br />subcontractor of Consultant providing services under this Agreement is
<br />determined by a court of competent jurisdiction or the California Public
<br />Employees Retirement System (PERS) to be eligible for enrollment in PERS as
<br />an employee of City, Consultant shall indemnify, defend, and hold harmless City
<br />for the payment of any employee and/or employer contributions for PERS
<br />benefits on behalf of Consultant or its employees, agents, or subcontractors, as
<br />well as for the payment of any penalties and interest on such contributions, which
<br />would otherwise be the responsibility of City.
<br />5_3 Design Professionals. Notwithstanding Sections 5.1 and 5.2, Consultant's duties
<br />to indemnify, defend and hold harmless the City shall be limited to the extent the
<br />services provided pursuant to this Agreement are "design professional services"
<br />subject to Section 2782.8 of the California Civil Code. In accordance with Civil
<br />Code Section 2782.8, Consultant shall, to the fullest extent allowed by law, with
<br />respect to all design professional services performed in connection with this
<br />Agreement, defend with counsel acceptable to City, indemnify, and hold City, its
<br />officers, employees, agents, and volunteers, harmless from and against any and all
<br />claims that arise out of, pertain to, or relate to the negligence, recklessness, or
<br />willful misconduct of the Consultant ("Claims"). Consultant will bear all losses,
<br />costs, damages, expense and liability of every kind, nature and description that
<br />arise out of, pertain to, or relate to such Claims ("Liability"). Such obligations to
<br />defend, hold harmless and indemnify the City shall not apply to the extent that
<br />such liability is caused by the negligence, active negligence, or willful misconduct
<br />of the City.
<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 />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 13; 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 ordinance to the contrary, Consultant and
<br />any of its employees, 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 California Public
<br />Employees Retirement System (PERS) as an employee of City and entitlement to
<br />any contribution to be paid by City for employer contributions and/or employee
<br />contributions for PERS benefits.
<br />San Leandro Blvd-BART Interface Plan June, 2009
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