Agmt17 Clampett Industries LLC DBA EMG Corporation

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7. Status of Consultant. Consultant will perform the Services as an independent contractor and not as an employee of City. The persons used by Consultant to provide services under this Agreement shall not be considered employees of City for any purposes. 8. Subcontracting. Consultant will not subcontract any portion of the Services without prior written approval of City Manager or his/her designee. If Consultant subcontracts any of the Services, Consultant will be fully responsible to City for the acts and omissions of Consultant's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Consultant is for the acts and omissions of persons directly employed by Consultant. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Consultant and City. Consultant will be responsible for payment of subcontractors. Consultant will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Consultant's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 9. Other Consultants. City reserves the right to employ other consultants in connection with the Services. 10. Indemnification. Consultant will defend, indemnify and hold harmless City and its officers, agents, employees and volunteers from and against all claims, damages, losses and expenses including attorney fees arising out of the performance of the Services, caused in whole or in part by the willful misconduct or any negligent act or omission of the Consultant, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, except where caused by the sole negligence or willful misconduct of City. The Parties expressly agree that any reasonable payment, attorney's fee, cost or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section. The parties expressly agree that this section shall survive the expiration or early termination of the Agreement. Further, without restricting the generality of the foregoing, Consultant agrees to, at its expense, defend and/or settle any claim made by a third party against City alleging that the AssetCALCTm infringes such third party's United States patent, copyright, trademark or trade secret (an "IP Claim"), and pay those amounts finally awarded by a court of competent jurisdiction against City (including damages, interest, losses, costs and expenses including attorneys' fees) or payable pursuant to a settlement agreed to by Consultant with respect to such IP Claim. If Consultant, in its sole discretion, believes an IP Claim or an adverse judgment in connection with an IP Claim is likely, then Consultant may, at its expense, (a) obtain a license from such third party claimant that allows for continued operation of AssetCALCTm, (b) modify or replace AssetCALCM so REV: 01-17-17 MI Page 3 of 22 ATTY/AGR.2017.010/EMG Corp FCA