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Attachment A
<br />Attachment C: Non-Professional Services Agreement Page 17 of 36
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<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
<br />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.
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<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
<br />any 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.
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<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.
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<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
<br />Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City,
<br />Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or
<br />employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or
<br />subcontractors, as well as for the payment of any penalties and interest on such contributions, which
<br />would otherwise be the responsibility of City.
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<br />Section 6. STATUS OF CONTRACTOR.
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<br />6.1 Independent Contractor. At all times during the term of this Agreement, Contractor
<br />shall be an independent contractor and shall not be an employee of City. City shall have
<br />the right to control Contractor only insofar as the results of Contractor's services
<br />rendered pursuant to this Agreement and assignment of personnel pursuant to
<br />Subsection 1.3; however, otherwise City shall not have the right to control the means by
<br />which Contractor accomplishes services rendered pursuant to this Agreement.
<br />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
<br />subcontractors providing services under this Agreement shall not qualify for or become
<br />entitled to, and hereby agree to waive any and all claims to, any compensation, benefit,
<br />or any incident of employment by City, including but not limited to eligibility to enroll in
<br />the California Public Employees Retirement System (PERS) as an employee of City and
<br />entitlement to any contribution to be paid by City for employer contributions and/or
<br />employee contributions for PERS benefits.
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