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BAAQMD FYE 2017 TFCA Funding Agreement
<br />TFCA Project 17R21 Page 5
<br />the TFCA Funds Awarded may be subject to reimbursement to, or withholding by, the Air District. In
<br />no event shall the Agreement terminate prior to the Project Sponsor’s reimbursement of any funds
<br />owed to the Air District.
<br />8) Additional Provisions and Additional Acts and Documents: Each Party agrees to do all such things and
<br />take all such actions, and to make, execute and deliver such other documents that are reasonably required
<br />to carry out the provisions, intent and purpose of this Agreement. All attachments to this Agreement are
<br />expressly incorporated herein by this reference and made a part hereof as though fully set forth.
<br />9) Indemnification: The Project Sponsor shall indemnify and hold the Air District, its officers, employees,
<br />agents, and successors-in-interest harmless from and against any and all liability, loss, expense, including
<br />reasonable attorneys’ fees, or claims for injury or damages arising out of the performance of this
<br />Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys’ fees, or claims
<br />for injury or damages are caused by or result from the negligent or intentional acts or omissions of the
<br />Project Sponsor, its officers, agents, or employees. The Project Sponsor shall require any third party who
<br />owns, operates, controls, or implements any portion of the Project to indemnify and hold the Air District,
<br />its officers, employees, agents, and successors-in-interest harmless from and against any and all liability,
<br />loss, expense, including reasonable attorneys’ fees, or claims for injury or damages arising out of the
<br />performance of this Agreement but only in proportion to and to the extent such liability, loss, expense,
<br />attorneys’ fees, or claims for injury or damages are caused by or result from the negligent or intentional
<br />acts or omissions of the third party, its officers, agents, or employees.
<br />10) Independent Contractor: Neither the Project Sponsor nor its officers, employees, agents, or representatives
<br />shall be considered employees or agents of the Air District. This Section does not apply to elected officials
<br />serving concurrently on the governing boards of both the Project Sponsor and the Air District.
<br />11) Assignment: Neither Party shall assign, sell, license, or otherwise transfer any rights or obligations under
<br />this Agreement to a third party without the prior written consent of the other Party. All of the terms,
<br />provisions and conditions of this Agreement will be binding upon and inure to the benefit of the Parties
<br />and their respective successors, assigns and legal representatives.
<br />12) Waiver: No waiver of a breach, of failure of any condition, or of any right or remedy contained in or
<br />granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the Party
<br />waiving the breach, failure, right or remedy. No waiver of any breach, failure, right or remedy shall be
<br />deemed a waiver of any other breach, nor shall any waiver constitute a continuing waiver unless the writing
<br />so specifies. Further, the failure of a Party to enforce performance by the other Party of any term, covenant,
<br />or condition of this Agreement, and the failure of a Party to exercise any rights or remedies hereunder,
<br />shall not be deemed a waiver or relinquishment by that Party to enforce future performance of any such
<br />terms, covenants, or conditions, or to exercise any future rights or remedies.
<br />13) Severability: If a court of competent jurisdiction holds any provision of this Agreement to be illegal,
<br />unenforceable or invalid in whole or in part for any reason, the validity and enforceability of the remaining
<br />provisions, or portions of them, will not be affected.
<br />14) Force Majeure: Neither the Air District nor the Project Sponsor shall be liable for, or deemed to be in
<br />default for, any delay or failure in performance under this Agreement or interruption of services resulting,
<br />directly or indirectly, from acts of God, enemy or hostile governmental action, civil commotion, strikes,
<br />lockouts, labor disputes, fire or other casualty, judicial orders, governmental controls, regulations or
<br />restrictions, inability to obtain labor or materials or reasonable substitutes for labor or materials necessary
<br />for performance of the Project, or other causes, except financial, that are beyond the reasonable control of
<br />the Air District or the Project Sponsor, for a period of time equal to the period of such force majeure event,
<br />provided that the Party failing to perform notifies the other Party within fifteen (15) calendar days of
<br />discovery of the force majeure event, and provided further that that Party takes all reasonable action to
<br />mitigate the damages resulting from the failure to perform. Notwithstanding the above, if the cause of the
<br />force majeure event is due to a Party’s own action or inaction, then such cause shall not excuse that Party
<br />from performance under this Agreement.
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