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Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES.
<br />Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers,
<br />officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims,
<br />expenses, and costs (including without limitation, attorney's fees and costs and fees of litigation)
<br />(collectively, "Liability ") of every nature arising out of or in connection with Consultant's performance of the
<br />Services or its failure to comply with any of its obligations contained in this Agreement, except such Liability
<br />caused by the sole negligence or willful misconduct of City.
<br />The Consultant's obligation to defend and indemnify shall not be excused because of the Consultant's
<br />inability to evaluate Liability or because the Consultant evaluates Liability and determines that the
<br />Consultant is not liable to the claimant. The Consultant must respond within 30 days, to the tender of any
<br />claim for defense and indemnity by the City, unless this time has been extended by the City. If the
<br />Consultant fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any
<br />other remedy authorized by law, so much of the money due the Consultant under and by virtue of this
<br />Agreement as shall reasonably be considered necessary by the City, may be retained by the City until
<br />disposition has been made of the claim or suit for damages, or until the Consultant accepts or rejects the
<br />tender of defense, whichever occurs first.
<br />With respect to third party claims against the Consultant, the Consultant waives any and all rights of any
<br />type to express or implied indemnity against the Indemnitees.
<br />Notwithstanding the forgoing, to the extent this Agreement is a "construction contract" as defined by
<br />California Civil Code Section 2782, as may be amended from time to time, such duties of consultant to
<br />indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.
<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 6. STATUS OF CONSULTANT.
<br />6.1 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
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