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Non-Professional Services Agreement between April 30, 2021
<br />City of San Leandro and Denali Water Solutions Page 8 of 14
<br />Section 5. INDEMNIFICATION AND CONTRACTOR’S RESPONSIBILITIES. Contractor shall indemnify,
<br />defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and
<br />volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without
<br />limitation, attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in
<br />connection with Contractor’s performance of the Services or its failure to comply with any of its obligations contained
<br />in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City.
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<br />Contractor shall also indemnify, defend and hold harmless the City from all suits or claims for infringement of any
<br />patent rights, copyrights, trade secrets, trade names, trademarks, service marks, or any other proprietary rights of
<br />any person or persons because of the City or any of its officers, employees, volunteers, or agents use of articles,
<br />products things, or services supplied in the performance of Contractor’s services under this Agreement, however, the
<br />cost to defend charged to Contractor shall not exceed Contractor’s 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 inability to
<br />evaluate Liability or because the Contractor evaluates Liability and determines that the Contractor is not liable to the
<br />claimant. The Contractor must respond within 30 days, to the tender of any claim for defense and indemnity by the
<br />City, unless this time has been extended by the City. If the Contractor fails to accept or reject a tender of defense
<br />and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due the
<br />Contractor under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be
<br />retained by the City until disposition has been made of the claim or suit for damages, or until the Contractor accepts
<br />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 Civil
<br />Code Section 2782, as may be amended from time to time, such duties of Contractor to indemnify shall not apply
<br />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 which
<br />Contractor agrees to indemnify the City against liability for damages arising out of bodily injury to persons or damage
<br />to property relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or
<br />maintenance of, any building, road, or other structure, project, development, or improvement attached to real estate,
<br />shall not apply to damages caused by or resulting from the active or sole negligence or willful misconduct of the City.
<br />The indemnifications provided herein shall not be limited to damages, compensation or benefits payable under
<br />insurance policies, workers’ compensation acts, 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 this
<br />Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System
<br />(PERS) to be eligible for enrollment in PERS as an employee of City, Contractor shall indemnify, defend, and hold
<br />harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of
<br />Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on
<br />such contributions, which would otherwise be the responsibility of 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 be an
<br />independent contractor and shall not be an employee of City. City shall have the right to control
<br />Contractor only insofar as the results of Contractor's services rendered pursuant to this Agreement
<br />and assignment of personnel pursuant to Subsection 1.3; however, otherwise City shall not have
<br />the right to control the means by which Contractor accomplishes services rendered pursuant to this
<br />Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or
<br />ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors
<br />providing services under this Agreement shall not qualify for or become entitled to, and hereby
<br />DocuSign Envelope ID: ACFAA43E-5065-4C20-96F7-B9977B5F8BA6
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