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City of San Leandro
<br />Installation Agreement
<br />Page 8 of 10
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<br />• Order Climatec LLC to stop work under this Agreement or withhold any payment
<br />that becomes due to Climatec LLC hereunder, or both stop work and withhold any
<br />payment, until Climatec LLC demonstrates compliance with the requirements hereof;
<br />and/or
<br />• Terminate this Agreement.
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<br />If the Purchaser requires that Climatec LLC maintain any special insurance coverage, policy, amendment, or rider,
<br />the Purchaser shall pay the additional cost.
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<br />27. INDEMNITY. Climatec LLC shall indemnify, defend with counsel acceptable to Purchaser, and hold harmless
<br />Purchaser and its officers, elected officials, employees, agents and volunteers from and against any and all liability,
<br />loss, damage, claims, expenses, and costs (including without limitation, reasonable attorney’s fees and costs and
<br />fees of litigation) (collectively, “Liability”) of every nature (except 3rd party consequential claims) arising out of or
<br />in 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
<br />Purchaser.
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<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.
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<br />Climatec LLC must respond within 30 days to the tender of any claim for defense and indemnity by the Purchaser.
<br />If 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 Purchaser, may be retained by the
<br />Purchaser until disposition has been made of the claim or suit for damages, or until the Climatec LLC accepts or
<br />rejects the tender of defense, whichever occurs first.
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<br />28. STATUS OF CLIMATEC LLC.
<br /> 28.1 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 Purchaser. Purchaser shall have the right to control
<br />Climatec LLC only insofar as the results of Climatec LLC's services rendered pursuant to this Agreement
<br />and assignment of personnel pursuant to Subsection 2.3; however, otherwise Purchaser shall not have the
<br />right to control the means by which Climatec LLC accomplishes services rendered pursuant to this
<br />Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to
<br />the contrary, Climatec LLC and any of its employees, agents, and subcontractors providing services under
<br />this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to,
<br />any compensation, benefit, or any incident of employment by Purchaser, including but not limited to
<br />eligibility to enroll in the California Public Employees Retirement System (PERS) which would be available
<br />as an employee of Purchaser and entitlement to any contribution to be paid by Purchaser for employer
<br />contributions and/or employee contributions for PERS benefits.
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<br />28.2 Climatec LLC Not an Agent. Except as Purchaser may specify in writing, Climatec LLC shall have no
<br />authority, express or implied, to act on behalf of Purchaser in any capacity whatsoever as an agent.
<br />Climatec LLC shall have no authority, express or implied, pursuant to this Agreement to bind Purchaser to
<br />any obligation whatsoever.
<br />29. 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.
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<br />30. ENTIRE AGREEMENT. This Agreement, including attachments A through F, upon acceptance, shall
<br />constitute the entire Agreement between the parties and supersedes any prior representations or understandings.
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<br />31. 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.
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<br />DocuSign Envelope ID: 64BB0189-33AC-48E9-B1D7-D912FB4998D8
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