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warranty of Company contained in this Agreement; (c) any personal injury or death caused, directly
<br />or indirectly, by any act or omission of Company or its employees, sub -grantees, invitees,
<br />contractors, sub -contractors or agents (each of the foregoing "Company Personnel") or by any
<br />structures of encroachments placed in, on or under any Public Right -Of -Way; (d) any loss of or
<br />damage to property caused, directly or indirectly, by any act or omission of Company or Company
<br />Personnel or by any structures of encroachments placed in, on or under the surface of any Public
<br />Right -Of -Way or City Property; (e) the use, misuse or failure of any equipment or facility used by
<br />Company, or by Company Personnel, regardless of whether such equipment or facility is furnished,
<br />rented, leased or loaned by or to Company; or (f) any tax, fee, assessment or other charge for which
<br />Company is responsible; provided, however, Company shall not indemnify City, its City Council,
<br />its officials, officers, employees, representatives, agents and volunteers and any successors to
<br />City's interest for losses arising from City's acts of gross negligence or willful misconduct. The
<br />foregoing indemnity shall include, without limitation, reasonable fees of attorneys, consultants and
<br />experts and related costs and City's costs of investigating any claims against City. City shall not
<br />be responsible for any damages, losses, or liability of any kind occurring by reason of anything
<br />done or omitted to be done by City or by any third party, including, without limitation, damages,
<br />losses, or liability arising. from the issuance by City of a permit or approval to any third party or
<br />any interruption in service.
<br />9.2 Duty to Defend; Notice of Loss. Company acknowledges and agrees that its
<br />obligation to defend the City under Section 9.1 (a) is an immediate obligation, independent of its
<br />other obligations hereunder; (b) applies to any Loss which actually or potentially falls within the
<br />scope of Section 9. 1, regardless of whether the allegations asserted in connection with such Loss
<br />are or may be groundless, false or fraudulent; and (c) arises at the time the Loss is tendered to
<br />Company by the City and continues at all times thereafter. The City shall give Company prompt
<br />notice of any Loss under Section 9.1 and Company shall have the right to defend, settle and
<br />compromise any such Loss; provided, however, that the City shall have the right to retain its own
<br />counsel if representation of City by the counsel retained by Company would be inappropriate due
<br />to conflicts of interest between City and Company. City's failure to notify Company promptly of
<br />any Loss shall not relieve Company of any liability to City pursuant to Section 9.1, unless such
<br />failure materially impairs Company's ability to defend such Loss. Company shall seek City's prior
<br />written consent to settle or compromise any Loss if Company contends that City shares in liability
<br />with respect thereto.
<br />9.3 Assumption of Risk. Company shall assume all risk of damage to any and all other
<br />property of Company, or any property under the control or custody of Company while upon or near
<br />the Public Rights -Of -Way incident to the use of the Public Rights -Of -Way. Company releases City
<br />from any liability, including claims for damages or extra compensation, arising from construction
<br />delays due to any activities by City. Under no circumstances shall City be liable to Company for
<br />any loss of service downtime, lost revenue or profits or third -party damages.
<br />9.4 Survival. Company's obligations under this Article 9 shall survive Termination of
<br />this Agreement.
<br />9.5 No Waiver. The failure of either party on one or more occasions to exercise a right
<br />or to require compliance or performance under this Agreement or any other applicable state or
<br />federal law shall not be deemed to constitute a waiver of such right or a waiver of compliance or
<br />performance by such party nor to excuse the other party from complying or performing, unless
<br />such right or such compliance or performance has been waived in writing.
<br />REV: 07-09-2020 PR
<br />ATTY/AGR.2020.122/Sonic Telecom, LLC (Page 10 of 19)
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