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• Terminate this Agreement.
<br /> Section 5. INDEMNIFICATION AND CONTRACTOR'S RESPONSIBILITIES. Contractor shall
<br /> indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials,
<br /> employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses,
<br /> and costs(including without limitation, attorney's fees and costs and fees of litigation) (collectively,
<br /> "Liability")of every nature arising out of or in connection with Contractor's performance of the Services or
<br /> its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by
<br /> the sole negligence or willful misconduct of City.
<br /> The Contractor's obligation to defend and indemnify shall not be excused because of the Contractor's
<br /> inability to evaluate Liability or because the Contractor evaluates Liability and determines that the
<br /> Contractor is not liable to the claimant. The Contractor 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 /> Contractor 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 Contractor 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 Contractor accepts or rejects the
<br /> tender of defense, whichever occurs first.
<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 Contractor to
<br /> indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.
<br /> In the event that Contractor or any employee, agent, or subcontractor of Contractor 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, Contractor 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 Contractor 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 CONTRACTOR.
<br /> 6.1 Independent Contractor. At all times during the term of this Agreement, Contractor shall
<br /> be an independent contractor and shall not be an employee of City. City shall have the
<br /> right to control Contractor only insofar as the results of Contractor's services rendered
<br /> pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.3;
<br /> however, otherwise City shall not have the right to control the means by which Contractor
<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, Contractor
<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 /> Non-Professional Services Agreement between City of San Leandro and Pacheco Brothers Gardening, Inc.
<br /> for Citywide Median Maintenance Services.
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