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ATTACHMENT A
<br />DRAFT
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<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 inabili ty
<br />to evaluate Liability or because the Contractor evaluates Liability and determines that the Contractor is not
<br />liable to the claimant. The Contractor must respond within 30 days, to the tender of any claim for defense
<br />and indemnity by the City, unless this time has been extended by the City. If the Contractor fails to accept
<br />or reject a tender of defense and indemnity within 30 days, in addition to any other remedy authorized by law,
<br />so much of the money due the Contractor under and by virtue of this Ag reement as shall reasonably be
<br />considered necessary by the City, may be retained by the City until disposition has been made of the claim
<br />or suit for damages, or until the Contractor accepts or rejects the 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 California
<br />Civil Code Section 2782, as may be amended from time to time, such duties of Contractor to indemnify shall
<br />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’ compens ation 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 under
<br />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 right
<br />to control Contractor only insofar as the results of Contractor's services rendered pursuant
<br />to this Agreement and assignment of personnel pursuant to Subsection 1.3; however,
<br />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 all
<br />claims to, any compensation, benefit, or any incident of employment by City, including but
<br />not limited to eligibility to enroll in the California Public Employees Retirement System
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