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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 Climatec LLC to indemnify shall not apply <br />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 the <br />Climatec LLC fails to accept or rejects a tender of defense and indemnity for a covered claim within 30 days, in <br />addition to any other remedy authorized by law, so much of the money due the Climatec LLC under and by virtue of <br />this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition <br />has been made of the claim or suit for damages, or until the Climatec LLC accepts or rejects the tender of defense, <br />whichever occurs first. <br />5. Occupational Safety and Health: The Parties hereto agree to notify each other immediately upon becoming <br />aware of any alleged violation of, the Occupational Safety and Health Act (OSHA) relating in any way to the project or <br />project site. <br />6. Entire Agreement: This Agreement, upon acceptance, shall constitute the entire agreement between the parties <br />and supersedes any prior representations or understandings. <br />7. Changes: No change or modification of any of the terms and conditions stated herein shall be binding upon <br />either Party unless accepted by both Parties in writing. <br />8. Severability: If one or more of the provisions of this Agreement are held to be unenforceable under laws, such <br />provision(s) shall be excluded from these terms and conditions and the remaining terms and conditions shall be <br />interpreted as if such provision were so excluded and shall be enforced in accordance to their terms and conditions. <br />9. Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an <br />original and all of which together shall constitute one and the same instrument. A signature on a copy of this <br />agreement received by either party by facsimile or portable document format (PDF) is binding upon the other parry as <br />an original. The parties shall treat a photocopy of such facsimile as a duplicate original. <br />10. Assignment: Climatec LLC retains the right to assign its rights and obligations of this Agreement with written <br />consent of Purchaser. <br />11. Acknowledgment: Both Climatec LLC and the Purchaser acknowledge having read this Agreement and all <br />contract documents incorporated herein and have executed this agreement on the date written above. <br />* CLIMATEC. <br />City of San Leandro <br />M&V Agreement <br />Page 5 of 6 <br />