|
City of San Leandro
<br />Installation Agreement
<br />Page 7 of 9
<br />
<br />during regular business hours, upon oral or written request of the City. Under California Government
<br />Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $10,000.00,
<br />the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or
<br />as part of any audit of the City, for a period of 3 years after final payment under the Agreement.
<br />
<br />24. DISPUTES. Written notice of any Dispute must be provided to the other party, describing specific details of
<br />the dispute relating to changes in Work or claim for additional compensation, within seven (7) days of the
<br />occurrence of the condition. This notice must be provided via certified mail. For a reasonable period commencing
<br />on the day written notice of Dispute was provided, but not to exceed thirty (30) days, the parties shall in good
<br />faith attempt to resolve the Dispute. If the parties are unable to resolve the Dispute during this period, the parties
<br />shall proceed to binding arbitration. The arbitrator shall be neutral and mutually acceptable. The arbitrator shall
<br />determine all rights and obligations under this Agreement and the award of the arbitrator shall be final, binding,
<br />and enforceable. Any award issued pursuant to this provision may be enforced in a court of competent
<br />jurisdiction, and each party hereby consents to that jurisdiction. All venues for arbitration shall be in the locality
<br />in which the project is located.
<br />
<br />25. CHANGE ORDER (Mid-Performance Amendments). Climatec LLC and the Purchaser recognize that:
<br />a. Purchaser may desire a mid-job change in the specifications or scope that would add time and cost to
<br />the specified work.
<br />b. Other provisions of the Agreement may be difficult to carry out because of unforeseen events, such as
<br />material shortage or labor strikes. If these or other events beyond the control of the parties reasonably
<br />require adjustments to this agreement, the parties shall make a good faith attempt to agree on all
<br />necessary particulars. Such agreements shall be put in writing, signed by the parties and added to this
<br />agreement. Failure to reach agreement shall be deemed a dispute to be resolved as agreed in section 14
<br />of this agreement.
<br />26. INDEMNITY. Climatec LLC shall indemnify, defend with counsel acceptable to City, and hold harmless City
<br />and its officers, elected officials, employees, agents and volunteers from and against any and all liability, loss,
<br />damage, claims, expenses, and costs (including without limitation, reasonable attorney’s fees and costs and fees
<br />of litigation) (collectively, “Liability”) of every nature (except 3rd party consequential claims) arising out of or in
<br />connection with Climatec LLC’s performance of the services called for or its failure to comply with any of its
<br />obligations contained in this Agreement, except such Liability caused by the negligence or misconduct of City.
<br />
<br />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 />
<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 tender
<br />of defense, whichever occurs first.
<br />
<br />27. STATUS OF CLIMATEC LLC.
<br />
<br />Independent Contractor. At all times during the term of this Agreement, Climatec LLC shall be an independent
<br />contractor and shall not be an employee of City. City shall have the right to control Climatec LLC only insofar as
<br />the results of Climatec LLC's services rendered pursuant to this Agreement and assignment of personnel pursuant
<br />to Subsection 1.3; however, otherwise City shall not have the right to control the means by which Climatec LLC
<br />accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy,
<br />rule, regulation, law, or ordinance to the contrary, Climatec LLC and any of its employees, agents, and subcontractors
<br />providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any
<br />and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to
<br />eligibility to 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 contributions for
<br />PERS benefits.
<br />
<br />
<br />DocuSign Envelope ID: 1DDC1773-ED91-404B-97DD-AC3EFDBAD0DD
|