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5. Indemnification. Consultant shall, to the fullest extent allowed by law, with respect to
<br /> all services perFormed in connection with this Agreement, defend with counsel acceptable to
<br /> City, indemnify, and hold City, its officers, employees, agents, and volunteers, harmless from
<br /> and against any and all claims that arise out of, pertain to, or relate to the negligence,
<br /> recklessness, or willful misconduct of the Consultant, subcontractor, or anyone directly or
<br /> indirectly employed by any of them or anyone for whose acts any of them may be liable
<br /> ("Claims°). Consultant will bear all losses, costs, damages, expense and liability of every
<br /> kind, nature and description, including attomey's fees, experts fees, court costs and
<br /> disbursements, that arise out of, pertain to, or relate to such Claims, whether directly or
<br /> indirectly("Liability'). Such obligations to defend, hold harmless and indemnify the City shall
<br /> not apply to the extent that such Liability is caused by the sole negligence, or willful
<br /> misconduct of the City.
<br /> With respect to third party claims against the Consultant, the Consultant waives any
<br /> and all rights of any type of express or implied indemnity against the Indemnitees.
<br /> However, notwithstanding the foregoing, in accordance with Califomia Civil Code
<br /> Section 1668, nothing in this Agreement shall be construed to exempt the City from its own
<br /> fraud, willful injury to the person or property of another, or violation of law.
<br /> Furthermore, notwithstanding the forgoing, to the extent this Agreement is a
<br /> "construction contract"as defined by Califomia Civil Code section 2783, as may be amended
<br /> from time to time, such duties of Consultant to indemnify shall not apply when to do so would
<br /> be prohibited by California Civil Code Section 2782.
<br /> Nothing herein contained in this Agreement shall be construed to require Consultant
<br /> to indemnify Indemnitees against any responsibility or liability in contravention of Califomia
<br /> Civil Code Section 2782.8.
<br /> The parties expressly agree that any reasonable payment, attomey's fee, cost or
<br /> expense City incurs or makes to or on behalf of an injured employee under the City's self-
<br /> administered workers' compensation is included as a loss, expense or cost for the purposes
<br /> of this section.
<br /> The parties expressly agree that this section shall survive the expiration or early
<br /> termination of the Agreement.
<br /> 6. Insurance. Consultant will obtain and maintain policies of commercial general liability
<br /> insurance, automobile liability insurance, a combined policy of workers' compensation,
<br /> employers liability insurance, and professional liability insurance from an insurance company
<br /> authorized to transact the business of insurance in the State of Califomia which has a
<br /> current rating in the Best's Key Rating guide of at least A-:V in an amount of not less than
<br /> five hundred thousand dollars ($500,000) each, except for Workers Compensation and
<br /> unless othervvise authorized and approved by the Risk Manager or the City Manager in
<br /> consultation with the City Attorney. Workers Compensation limits, if applicable, will be set at
<br /> those limits required by the California Labor Code. Consultant will obtain occurrence
<br /> coverage, excluding Professional Liability, which will be written as claims-made coverage.
<br /> The insurance will be in force during the life of this Agreement and will not be
<br /> canceled without thirty (30) days prior written notice to the City by certified mail. City, its
<br /> o�cers, agents, volunteers and employees will be named as additional insureds on General
<br /> and Automobile liability. Consultant's insurance coverage will be primary insurance with
<br /> respect to City, its officers, agents, volunteers and employees. Any insurance or self-
<br /> REV: I1-26-13 VR
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<br /> ATTY/AGR.2013.236/NBBJ/Agreement for Design Services
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