Agmt 2006 Bay Area Air Quality Management District BAAQMD

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BAAQMD FY2005 TFCA Funding Agreement 3) Early Termination: This Agreement maybe terminated prior to completion of the term period upon any of the following circumstances: A. The heavy.duty vehicles or associated capital equipment funded under this Agreement become inoperable through mechanical failure of components or systems directly related to the fuel technology being utilized, and such failure is not caused by Project Sponsor's negligence, misuse, or malfeasance. B. Project Sponsor shall submit written documentation supporting any basis for early termination for the approval of the Air District. Reimbursement for Early Termination: Project Sponsor is obligated through this Agreement to acquire and operate capital equipment funded under this Agreement as well as to provide periodic reports to the Air District. Should Project Sponsor desire to terminate this Agreement prior to the end date for reasons other than those stated in Item 3.A, Project Sponsor shall reimburse the Air District for a prorated share of the funds provided under this Agreement. The prorated share for which Project Sponsor shall be liable shall be 100% if the termination occurs within one (1) year of project implementation; 80% if termination occurs between years one (1) and two (2); 60% between years two (2) and three (3); 40% between years three (3) and four (4); 20% between years four (4) and five (5); and 0% after year five (5). The reimbursable amount shall be paid to the Air District within sixty (60) calendar days of the early termination date. Project Sponsor shall not be responsible for any reimbursement to the Air District if termination results from one or more of the reasons set forth in Item 2. Nothing in this Item entitles Project Sponsor to payment in the event of breach. 4) Indemnity: Project Sponsor will indemnify and hold harmless the Air District, its officers, employees, agents, representatives, and successors-in-interest against any and all claims, suits or actions arising out of an act or omission of the Project Sponsor or its employees, subcontractors or agents in the performance of this Agreement, except to the extent such claim, suit or action arises out of the sole negligence or willful misconduct of the Air District. Project Sponsor will cause any third party who owns, operates or controls the motor vehicle(s) purchased with TFCA funds under this Agreement to indemnify the Air District in accordance with this provision. This indemnification will survive expiration or termination of this Agreement. Air District shall indemnify and hold harmless Project Sponsor its officers, employees, agents, and successors~in-interest against any and all claims, suits or actions arising out of a negligent act or omission by Air District in the performance of its duties under this Agreement. 5) Notices: Any notice which may be required under this Agreement shall be in writing, shall be effective when received, and shall be given by personal delivery service or first class mail, to the addressees set forth on Attachment A, or to such addressees which may be specified in writing by the parties. Each party shall promptly inform the other of any change of address or addressee for notice. 6), Contacts: The persons listed as Contacts in Attachment A will be the first point of contact and act as the liaisons between the Air District and Project Sponsor with regards to the day-to-day activities of the Project. All reports and correspondence are to be addressed to the specified Contacts. Each party shall promptly inform the other of any change of address or addressee for notice. 7) Project Number: All correspondence shall reference the "Project Number" specified in Attachment A. 8) Integration: This Agreement represents the entire Agreement of the parties with respect to the subject matter described in this Agreement, and no representation, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein. 9) Amendment: This Agreement may not be changed, modified, or rescinded except in writing and signed by the parties hereto. Any attempt to modify this Agreement orally will be void and of no effect. The Air District and Project Sponsor Contacts as specified in Attachment A may jointly authorize, in TFCA Regional Fund Project 05R60 Page 4