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<br />Non-Professional Services Agreement between January 12, 2023 City of San Leandro and SWIMS Page 9 of 16
<br />arising out of or in connection with SWIMS’s performance of the Services or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City. SWIMS shall also indemnify, defend and hold harmless the City from all suits or claims for infringement of any patent rights, copyrights, trade secrets, trade names, trademarks, service marks, or any other proprietary rights of any person or persons because of the City or any of its officers, employees, volunteers, or agents use of articles, products things, or services supplied in the performance of SWIMS’s services under this Agreement, however, the cost to defend charged to SWIMS shall not exceed SWIMS’s proportionate percentage fault. The SWIMS’s obligation to defend and indemnify shall not be excused because of the SWIMS’s inability to evaluate Liability or because SWIMS evaluates Liability and determines that the SWIMS is not liable to the claimant. The SWIMS must respond within 30 days, to the tender of any claim for defense and indemnity by the City, unless this time has been extended by the City. If the SWIMS fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due the SWIMS under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the claim or suit for damages, or until the SWIMS accepts or rejects the tender of defense, whichever occurs first. Notwithstanding the forgoing, to the extent this Agreement is a “construction contract” as defined by California Civil Code Section 2782, as may be amended from time to time, such duties of SWIMS to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782. If this Agreement involved construction or maintenance then all provisions of this Agreement pursuant to which SWIMS agrees to indemnify the City against liability for damages arising out of bodily injury to persons or damage to property relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of, any building, road, or other structure, project, development, or improvement attached to real estate, shall not apply to damages caused by or resulting from the active or sole negligence or willful misconduct of the City. The indemnifications provided herein shall not be limited to damages, compensation or benefits payable under insurance policies, workers’ compensation acts, disability benefit acts, or other employees’ benefit acts. In the event that SWIMS or any employee, agent, or sub-Contractor of SWIMS providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, SWIMS shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of SWIMS or its employees, agents, or sub-Contractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Section 6. STATUS OF SWIMS. 6.1 Independent Contractor. At all times during the term of this Agreement, SWIMS shall be an independent Contractor and shall not be an employee of City. City shall have the right to control SWIMS only insofar as the results of SWIMS's services rendered pursuant to this
<br />DocuSign Envelope ID: 3CF5F1DA-0970-4726-A2E8-F5B25AD4C567
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