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<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.
<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.
<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.
<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.
<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 />(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 />6.2 Contractor Not an Agent. Except as City may specify in writing, Contractor shall have no
<br />authority, express or implied, to act on behalf of City in any capacity whatsoever as an
<br />agent. Contractor shall have no authority, express or implied, pursuant to this Agreement
<br />to bind City to any obligation whatsoever.
<br />Non -Professional Services Agreement between July 1, 2020
<br />City of San Leandro and Arborist Now, Inc. Page 9 of 15
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