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proceedings, judgments, penalties, liens, and losses of any nature whatsoever, including <br />fees of accountants, attorneys, or other professionals and all costs associated therewith, <br />and reimbursement of attorney's fees and costs of defense (collectively "Liabilities"), whether <br />actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or <br />relate to, in whole or in part, the negligence, recklessness or willful misconduct of <br />CONSULTANT, its officers, agents, servants, employees, subcontractors, material men, <br />contractors or their officers, agents, servants or employees (or any entity or individual that <br />CONSULTANT shall bear the legal liability thereof) in the performance of design <br />professional services under this Agreement by a "design professional," as the term is defined <br />under California Civil Code Section 2782.8(c)(2). <br />3.1.2 Other Indemnities. <br />(a) Other than in the performance of design professional services, and to <br />the fullest extent permitted by law, CONSULTANT shall, at its sole cost and expense, <br />defend, hold harmless and indemnify the Indemnitees from and against any and all <br />damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, <br />judgments, penalties, liens, and losses of any nature whatsoever, including fees of <br />accountants, attorneys, or other professionals and all costs associated therewith and the <br />payment of all consequential damages (collectively "Claims"), in law or equity, whether <br />actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or <br />relate to the acts or omissions of CONSULTANT, its officers, agents, servants, employees, <br />subcontractors, materialmen, contractors or their officers, agents, servants or employees (or <br />any entity or individual that CONSULTANT shall bear the legal liability thereof) in the <br />performance of this Agreement, including the Indemnitees' active or passive negligence, <br />except for Claims arising from the sole negligence or willful misconduct of the Indemnitees, <br />as determined by final arbitration or court decision or by the agreement of the Parties. <br />CONSULTANT shall defend the Indemnitees in any action or actions filed in connection with <br />any Claim with counsel of the Indemnitees' choice, and shall pay all costs and expenses, <br />including all attorneys' fees and experts' costs actually incurred in connection with such <br />defense. CONSULTANT shall reimburse the Indemnitees for any and all legal expenses <br />and costs incurred by the Indemnitees in connection therewith. <br />(b) CONSULTANT shall pay all required taxes on amounts paid to <br />CONSULTANT under this Agreement, and indemnify and hold CITY harmless from any and <br />all taxes, assessments, penalties, and interest asserted against CITY by reason of the <br />independent contractor relationship created by this Agreement. CONSULTANT shall fully <br />comply with the workers' compensation law regarding CONSULTANT and CONSULTANT's <br />employees. CONSULTANT shall indemnify and hold CITY harmless from any failure of <br />CONSULTANT to comply with applicable workers' compensation laws. CITY may offset <br />against the amount of any fees due to CONSULTANT under this Agreement any amount <br />due to CITY from CONSULTANT as a result of CONSULTANT's failure to promptly pay to <br />CITY any reimbursement or indemnification arising under this Subparagraph (b). <br />(c) CONSULTANT shall obtain executed indemnity agreements with <br />provisions identical to those in this Section 3.1 from each and every subcontractor or any <br />other person or entity involved by, for, with or on behalf of CONSULTANT in the performance <br />Page 3 of 12 <br />Agreement for On -Call Professional/Technical Services <br />R6876-0001 \1857600v3.doc <br />