|
Non-Professional Services Agreement between City of San Leandro and
<br />RTC Construction Management, Inc. for WPCP Pipe Removal & Relocation Project Page 8 of 20
<br />Order Contractor to stop work under this Agreement or withhold any payment that becomes
<br />due to Contractor hereunder, or both stop work and withhold any payment, until Contractor
<br />demonstrates compliance with the requirements hereof; and/or
<br />Terminate this Agreement.
<br />Section 5. INDEMNIFICATION AND CONTRACTOR’S RESPONSIBILITIES. Contractor shall indemnify,
<br />defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and
<br />volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without
<br />limitation, attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in
<br />connection with Contractor’s performance of the Services or its failure to comply with any of its obligations contained
<br />in this Agreement, except such Liability 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 inability to
<br />evaluate Liability or because the Contractor evaluates Liability and determines that the Contractor is not liable to the
<br />claimant. The Contractor must respond within 30 days, to the tender of any claim for defense and indemnity by the
<br />City, unless this time has been extended by the City. If the Contractor fails to accept or reject a tender of defense
<br />and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due the
<br />Contractor under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be
<br />retained by the City until disposition has been made of the claim or suit for damages, or until the Contractor accepts
<br />or rejects the tender of defense, whichever occurs first.
<br />Notwithstanding the forgoing, to the extent this Agreement is a “construction contract” as defined by California Civil
<br />Code Section 2782, as may be amended from time to time, such duties of Contractor to indemnify shall not apply
<br />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 under this
<br />Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System
<br />(PERS) to be eligible for enrollment in PERS as an employee of City, Contractor shall indemnify, defend, and hold
<br />harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of
<br />Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on
<br />such contributions, which would otherwise be the responsibility of City.
<br />Section 6. STATUS OF CONTRACTOR.
<br />6.1 Independent Contractor. At all times during the term of this Agreement, Contractor shall be an
<br />independent contractor and shall not be an employee of City. City shall have the right to control
<br />Contractor only insofar as the results of Contractor's services rendered pursuant to this Agreement
<br />and assignment of personnel pursuant to Subsection 1.3; however, otherwise City shall not have
<br />the right to control the means by which Contractor accomplishes services rendered pursuant to this
<br />Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or
<br />ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors
<br />providing services under this Agreement shall not qualify for or become entitled to, and hereby
<br />agree to waive any and all claims to, any compensation, benefit, or any incident of employment by
<br />City, including but not limited to eligibility to enroll in the California Public Employees Retirement
<br />System (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 />212
|