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<br />Non-Professional Services Agreement between June 13, 2024
<br />City of San Leandro and Student Conservation Association Page 9 of 16
<br />The parties shall also indemnify, defend and hold harmless each other from all suits or claims for
<br />infringement of any patent rights, copyrights, trade secrets, trade names, trademarks, service marks, or any
<br />other proprietary rights of any person or persons because of the indemnified party or any of its officers,
<br />employees, volunteers, or agents use of articles, products things, or services supplied in relation to this
<br />Agreement, however, the cost to defend charged shall not exceed the party’s proportionate percentage
<br />fault.
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<br />The obligation to defend and indemnify shall not be excused because of the inability to evaluate Liability or
<br />because the party evaluates Liability and determines that the party is not liable to the claimant. The
<br />indemnifying party must respond within 30 days, to the tender of any claim for defense and indemnity by
<br />the other party, unless this time has been extended in writing.
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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.
<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 />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 />DocuSign Envelope ID: D20A2299-20BE-46CE-89B3-70A711C7E32D
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