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Contractor 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,attorney's fees and costs and fees of litigation)
<br /> (collectively,"Liability")of every nature arising out of or in connection with Contractor'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 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 /> (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 /> Non-Professional Services Agreement between City of San Leandro and Strategic Products and Services,
<br /> LLC for Network Upgrade
<br /> Page 9 of 15
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