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Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES.
<br />Consultant shall indemnify, defend with counsel reasonably acceptable to the City, and hold
<br />harmless the City and its officials, officers, employees, agents, and volunteers from and against
<br />any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of
<br />any personal injury, bodily injury, loss of life, or damage to property, or any violation of any
<br />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 that does not meet the Standard o Performance. The foregoing obligation of
<br />Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of
<br />law arises wholly from the negligence or willful misconduct of the City or its officers,
<br />employees, agents, or volunteers and (2) the actions of Consultant or its employees,
<br />subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property,
<br />or violation of law. It is understood that the duty of Consultant to indemnify and hold harmless
<br />includes the duty to defend as set forth in Section 277$ of the California Civil Code. Acceptance
<br />by City of insurance certificates and endorsements required under this Agreement does not
<br />relieve Consultant from liability under this indemnification and hold harmless clause. This
<br />indemnification and hold harmless clause shall apply to any damages or claims for damages
<br />whether or not such insurance policies shall have been determined to apply. By execution of this
<br />Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a
<br />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 City, Consultant shall indemnify, defend, and hold harmless 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 />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 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 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
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<br />WWTP Assessment and Improvement Plan 2/17/2005
<br />Project No. OS-S93-52-209 Page 8 of 23
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