|
BAAQMD FY2009/2010 TFCA Funding Agreement
<br /> against any and all liability, loss, expense, including reasonable attorneys' fees, or claims for
<br /> injury or damages arising out of their performance of the Project or operation or use of any
<br /> portion of the Project. The Project Sponsor's indemnification and its obligation to have
<br /> applicable third parties indemnify the Air District shall survive expiration or termination of this
<br /> Agreement.
<br /> 10) Independent Contractor: Neither the Project Sponsor nor its officers, employees, agents, or
<br /> representatives shall be considered employees or agents of the Air District. This Section does not
<br /> apply to elected officials serving concurrently on the governing boards of both the Project
<br /> Sponsor and the Air District.
<br /> 11) Assignment: Neither Party shall assign, sell, license, or otherwise transfer any rights or
<br /> obligations under this Agreement to a third party without the prior written consent of the other
<br /> Party. All of the terms, provisions and conditions of this Agreement will be binding upon and
<br /> inure to the benefit of the Parties and their respective successors, assigns and legal
<br /> representatives.
<br /> 12) Waiver: No waiver of a breach, of failure of any condition, or of any right or remedy contained
<br /> in or granted by the provisions of this Agreement shall be effective unless it is in writing and
<br /> signed by the Party waiving the breach, failure, right or remedy. No waiver of any breach, failure,
<br /> right or remedy shall be deemed a waiver of any other breach, whether or not similar, nor shall
<br /> any waiver constitute a continuing waiver unless the writing so specifies. Further, the failure of a
<br /> Party to enforce performance by the other Party of any term, covenant, or condition of this
<br /> Agreement, and the failure of a Party to exercise any rights or remedies hereunder, shall not be
<br /> deemed a waiver or relinquishment by that Party to enforce future performance of any such terms,
<br /> 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
<br /> illegal, unenforceable or invalid in whole or in part for any reason, the validity and enforceability
<br /> of the remaining 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
<br /> be in default for, any delay or failure in performance under this Agreement or interruption of
<br /> services resulting, directly or indirectly, from acts of God, enemy or hostile governmental action,
<br /> civil commotion, strikes, lockouts, labor disputes, fire or other casualty, judicial orders,
<br /> governmental controls, regulations or restrictions, inability to obtain labor or materials or
<br /> reasonable substitutes for labor or materials necessary for performance of the Project, or other
<br /> causes, except financial, that are beyond the reasonable control of the Air District or the Project
<br /> Sponsor, for a period of time equal to the period of such force majeure event, provided that the
<br /> Party failing to perform notifies the other Party within fifteen (15) calendar days of discovery of
<br /> 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
<br /> cause of the force majeure event is due to a Party's own action or inaction, then such cause shall
<br /> not excuse that Party from performance under this Agreement.
<br /> 15) Governing Law: Any dispute that arises under or relates to this Agreement shall be governed by
<br /> California law, excluding any laws that direct the application of another jurisdiction's laws.
<br /> Venue for resolution of any dispute that arises under or relates to this Agreement, including
<br /> mediation, shall be San Francisco, California.
<br /> TFCA Regional Fund Project 09R55 Page 7
<br />
|