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^ Order Consultant to stop work under this Agreement or withhold any payment that
<br />becomes due to Consultant hereunder, or both stop work and withhold any payment,
<br />until Consultant demonstrates compliance with the requirements hereof; and/or
<br />^ Terminate this Agreement.
<br />Section 4. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall
<br />indemnify, defend with counsel reasonably acceptable to the City, and hold harmless the City and its
<br />officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims,
<br />suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or
<br />damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent
<br />caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its
<br />employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality
<br />or character of 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 misconduct of the
<br />City or its officers, 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, or
<br />violation of law, It is understood that the duty of Consultant to indemnify and hold harmless includes the
<br />duty to defend as set forth in Section 277$ of the California Civil Code, Acceptance by City of insurance
<br />certificates and endorsements required under this Agreement does not relieve Consultant from liability
<br />under this 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 been
<br />determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the
<br />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 services
<br />under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
<br />Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall
<br />indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions
<br />for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the
<br />payment of any penalties and interest on such contributions, which would otherwise be the responsibility of
<br />City.
<br />Section 5. STATUS OF CONSULTANT.
<br />5.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall
<br />be an independent contractor and shall not be an employee of City. City shall have the
<br />right to control Consultant only insofar as the results of Consultant's services rendered
<br />pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3;
<br />however, otherwise City shall not have the right to control the means by which Consultant
<br />accomplishes services rendered pursuant to this Agreement, Notwithstanding any other
<br />City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant
<br />and 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 any and
<br />all claims to, any compensation, benefit, or any incident of employment by City, including
<br />Consulting Services Agreement between [September 15, 2004]
<br />City of San Leandro and HdL Software LLC Page 6 of 34
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