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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 Climatec LLC to indemnify shall <br />not apply when to do so would be prohibited by California Civil Code Section 2782. <br />Climatec LLC must respond within 30 days to the tender of any claim for defense and indemnity by the City. If <br />the Climatec LLC fails to accept or rejects a tender of defense and indemnity for a covered claim within 30 days, <br />in addition to any other remedy authorized by law, so much of the money due the Climatec LLC under and by <br />virtue of this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until <br />disposition has been made of the claim or suit for damages, or until the Climatec LLC accepts or rejects the <br />tender of defense, whichever occurs first. <br />27. STATUS OF CLIMATEC L <br />27.1 Independent Contractor. At all times during the term of this Agreement, Climatec LLC shall be an <br />independent contractor and shall not be an employee of City. City shall have the right to control Climatec <br />LLC only insofar as the results of Climatec LLC's services rendered pursuant to this Agreement and <br />assignment of personnel pursuant to Subsection 1.3: however, otherwise City shall not have the right to <br />control the means by which Climatec LLC accomplishes services rendered pursuant to this Agreement. <br />Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, <br />Climatec LLC 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 claims to, any <br />compensation, benefit, or any incident of employment by City, including but not limited to eligibility to <br />enroll in the California Public Employees Retirement System (PERS) as an employee of City and <br />entitlement to any contribution to be paid by City for employer contributions and/or employee <br />contributions for PERS benefits. <br />27.2 Climatec LLC Not an Agent. Except as City may specify in writing, Climatec LLC shall have no <br />authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Climatec <br />LLC shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation <br />whatsoever. <br />28. OCCUPATIONAL SAFETY AND HEALTH. The Parties hereto agree to notify each other immediately <br />upon becoming aware of any alleged violation of, the Occupational Safety and Health Act (OSHA) relating in <br />any way to the project or project site. <br />29. ENTIRE AGREEMENT. This agreement, upon acceptance, shall constitute the entire agreement between <br />the parties and supersedes any prior representations or understandings. <br />30. CHANGES. No change or modification of any of the terms and conditions stated herein shall be binding upon <br />Climatec LLC unless accepted by Climatec LLC in writing, <br />31. TERMINATION FOR NON -APPROVALS. This Agreement is expressly conditioned on Purchaser's. <br />ability to obtain private placement municipal bond financing on such terms and conditions that are acceptable to <br />the Nevada County Board of Supervisors, in its sole discretion. This Agreement may be immediately terminated <br />by Customer without cause should Customer, on or before June 30, 2015, fail to obtain financing approvals. If <br />the Agreement is terminated pursuant to this Section 32, Purchaser and Climatec LLC shall have no obligation <br />whatsoever to fulfill the terms and conditions of this Agreement and no payments whatsoever shall be due or <br />payable to Climatec LLC under this Agreement or otherwise, and Purchaser shall not be entitled to damages of <br />any kind, or any other remedy arising out of, or otherwise related to, the termination of this Agreement. The <br />parties hereto may, by mutual agreement, extend the deadline to obtain financing as provided above by up to 30 <br />days with the written mutual consent of both parties. <br />32. RE -OPENING PROVISION. The parties acknowledge that Customer intends to solicit proposals for Direct <br />Purchase Bonds to finance the Project, that Customer has not yet selected a Purchase Bank for said financing, <br />and that this Agreement will be subject to final review and approval by the Purchase Bank selected to finance the <br />Project. If the Purchase Bank conditions the financing of the Project on modification, revision or deletion of <br />City of San Leandro <br />CLIMATEG Installation :agreement <br />"' F% Page 8 of 10 <br />