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Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall
<br />indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers,
<br />employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions,
<br />damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to
<br />property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole
<br />or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees,
<br />subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character
<br />of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage
<br />to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its
<br />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 2778 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 6.
<br />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 />but not limited to eligibility to enroll in the California Public Employees Retirement System
<br />(PERS) as an employee of City and entitlement to any contribution to be paid by City for
<br />employer contributions and/or employee contributions for PERS benefits.
<br />Consulting Services Agreement between
<br />City of San Leandro and Architectural Resources Group Page 8 of 14
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