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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, attomey'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 /> Califomia 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 Califomia 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 Califomia 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
<br /> G90BDIDowntcwMDowntown PBIDWCA Agreements \CSA6- 19- 12.doc
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