AgdaPkt 2018-12-10 Joint SA PFA - Laserfiche WebLink

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6.E. - Page 16 of 34 or by Permittee Personnel, regardless of whether such equipment or facility is furnished, rented, leased or loaned by or to Permittee; or (f) any tax, fee, assessment or other charge for which Permittee is responsible; provided, however, Permittee shall not indemnify City, its City Council, its officials, officers, employees, representatives, agents and volunteers and any successors to City's interest for losses arising from City's gross acts of negligence or willful misconduct. The foregoing indemnity shall include, without limitation, reasonable fees of attorneys, consultants and experts and related costs and City's costs of investigating any claims against City. City shall not be responsible to Permittee for any damages, losses, or liability of any kind occurring by reason of anything done or omitted to be done by City or by any third party, including, without limitation, damages, losses, or liability arising from the issuance by City of a permit or approval to any third party or any interruption in service. 7.2 Duty to Defend; Notice of Loss. Permittee acknowledges and agrees that its obligation to defend the City under Section 7.1 (a) is an immediate obligation, independent of its other obligations hereunder; (b) applies to any Loss which actually or potentially falls within the scope of Section 7.1, regardless of whether the allegations asserted in connection with such Loss are or may be groundless, false or fraudulent; and (c) arises at the time the Loss is tendered to Permittee by the City and continues at all times thereafter. The City shall give Permittee prompt notice of any Loss under Section 7.1 and Permittee shall have the right to defend, settle and compromise any such Loss; provided, however, that the City shall have the right to retain its own counsel if representation of City by the counsel retained by Permittee would be inappropriate due to conflicts of interest between City and Permittee. City's failure to notify Permittee promptly of any Loss shall not relieve Permittee of any liability to City pursuant to Section 7.1, unless such failure materially impairs Permittee's ability to defend such Loss. Permittee shall seek City's prior written consent to settle or compromise any Loss if Permittee contends that City shares in liability with respect thereto. 7.3 Assumption of Risk. Permittee shall assume all risk of damage to any and all other property of Permittee, or any property under the control or custody of permittee while upon or near the Public Rights -Of -Way incident to the use of the Public Rights -Of -Way. Permittee releases City from any liability, including claims for damages or extra compensation, arising from construction delays due to any activities by City. Under no circumstances shall City be liable to Permittee for any loss of service downtime, lost revenue or profits or third -party damages. 7.4 Survival. Permittee's obligations underthis Article 7 shall survive Termination of this Permit. 7.5 No Waiver. The failure of either party on one or more occasions to exercise a right or to require compliance or performance under this Permit or any other applicable state or federal law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance by such party nor to excuse the other party from complying or performing, unless such right or such compliance or performance has been waived in writing. Page 9 of 24 REV: 09-17-18 PR ATTY/AGR.2018.220/Kaiser - Revocable Encroachment Permit 100