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<br />Non-Professional Services Agreement between January 1, 2021
<br />City of San Leandro and BrightView Landscape Services, Inc. dba Emerald Landscape Page 10 of 17
<br />proprietary rights of any person or persons because of the City or any of its officers, employees, volunteers,
<br />or agents use of articles, products things, or services supplied in the performance of Contractor’s services
<br />under this Agreement, however, the cost to defend charged to Contractor shall not exceed Contractor’s
<br />proportionate percentage fault.
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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 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.
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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 />If this Agreement involved construction or maintenance then all provisions of this Agreement pursuant to
<br />which Contractor agrees to indemnify the City against liability for damages arising out of bodily injury to
<br />persons or damage to property relative to the construction, alteration, repair, addition to, subtraction from,
<br />improvement to, or maintenance of, any building, road, or other structure, project, development, or
<br />improvement attached to real estate, shall not apply to damages caused by or resulting from the active or
<br />sole negligence or willful misconduct of the City. The indemnifications provided herein shall not be limited to
<br />damages, compensation or benefits payable under insurance policies, workers’ compensation acts,
<br />disability benefit acts, or other employees’ benefit acts.
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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 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.
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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 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 />DocuSign Envelope ID: 7710F42F-3945-40C1-8E57-59ECEF3ECE61
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