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such other service as may be necessary to maintain said property in operational condition. <br />D. Not a Taking by the_CitSC. The City's exercise of its contractual rights under this Article 11: (i) <br />does not constitute a taking of private property for which compensation must be paid; (ii) shall not create <br />any liability on the part of the City to the Contractor; and (iii) does not exempt the Contractor from the <br />indemnity provisions of Article 10.1, which are meant to extend to circumstances arising under this Article, <br />provided that the Contractor is not required to indemnify the City against claims and damages that are <br />solely caused by the established active negligence or willful misconduct of City officers, employees, <br />agents, or volunteers acting under this Article. <br />E. Possession of Contractor' Proper .The City's right to retain temporary possession of the <br />Contractor's property, and to provide one or more Franchise Services shall continue until the Contractor <br />can demonstrate to the City's satisfaction that it is ready, willing and able to resume such services. The <br />City has no obligation to maintain possession of the Contractor's property or continue its use in performing <br />one or more Franchise Services for any period of time and may, at any time, in its sole discretion, <br />relinquish possession to the Contractor. <br />11.9 CONTRACTOR SHALL PROTECT FRANCHISE <br />The Contractor shall take all reasonably necessary actions to protect this Franchise and its exclusivity. <br />Such actions may include the initiation of legal action against any party exercising or attempting to exercise <br />rights inimitable to this Franchise. Such actions may, to the extent permitted bylaw, be instituted on the <br />recommendation of the City Attorney. At the Contractor's request City shall join in all such actions in <br />support of the Contractor's efforts, provided the Contractor shall reimburse City for all its attorneys fees and <br />costs in connection therewith. <br />ARTICLE 12. OTHER AGREEMENTS OF THE PARTIES <br />12.1 RELATIONSHIP OF PARTIES <br />The Parties intend that the Contractor shall perform the services required by this Agreement as an <br />independent contractor engaged by the City and not as an officer or employee of the City nor as a partner <br />of or joint venturer with the City. No employee or agent of the Contractor shall be or shall be deemed to be <br />an employee or agent of the City. Except as expressly provided herein, the Contractor shall have the <br />exclusive control over the manner and means of conducting the Franchise Services performed under this <br />Agreement, and all persons performing such services. The Contractor shall be solely responsible for the <br />acts and omissions of its officers, employees, subcontractors and agents. Neither the Contractor nor its <br />officers, employees, subcontractors and agents shall obtain any rights to retirement benefits, workers' <br />compensation benefits, or any other benefits which accrue to the City employees by virtue of their <br />employment with the City. The Contractor or its employees shall not provide, directly or indirectly, any gifts <br />or gratuities to any City employee or representative. <br />r:~~.Pd~a~„~r~n~~~vz.,.~,a ovovoo Page 51 Of 59 <br />