Agda Pkt 2024.08.26 Regular Meeting

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REV: 02-23-24 SK Company or Company Personnel or by any structures of encroachments placed in, on or under the surface of any Public Right-Of-Way or the City Property; (e) the use, misuse or failure of any equipment or facility used by Company, or by Company Personnel, regardless of whether such equipment or facility is furnished, rented, leased or loaned by or to Company; or (f) any tax, fee, assessment or other charge for which Company is responsible; provided, however, Company shall not indemnify the City, its City Council, its officials, officers, employees, representatives, agents and volunteers and any successors to the City's interest for any of the foregoing claims or losses arising from the City's acts of gross negligence or willful misconduct. The foregoing indemnity shall include, without limitation, reasonable fees of attorneys, consultants and experts and related costs and the City’s costs of investigating any claims against the City. The City shall not be responsible for any damages, losses, or liability of any kind occurring by reason of anything done or omitted to be done by the City, except to the extent due to gross negligence or willful misconduct, or by any third party, including, without limitation, damages, losses, or liability, arising from the issuance by the City of a permit or approval to any third party, or any interruption in service,. Company shall not be liable for losses or delay damages resulting from Company’s failure to relocate or remove its Facilities in the event of Force Majeure or event beyond the control of Company. 9.2 Duty to Defend; Notice of Loss. Company acknowledges and agrees that its obligation to defend the City under Section 9.1 (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 9.1, 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 Company by the City and continues at all times thereafter. The City shall give Company prompt notice of any Loss under Section 9.1 and Company 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 the City by the counsel retained by Company would be inappropriate due to conflicts of interest between the City and Company. The City’s failure to notify Company promptly of any Loss shall not relieve Company of any liability to the City pursuant to Section 9.1, unless such failure materially impairs Company’s ability to defend such Loss. Company shall seek the City’s prior written consent to settle or compromise any Loss if Company contends that the City shares in liability with respect thereto. 9.3 Assumption of Risk. Company shall assume all risk of damage to any and all other property of Company, or any property under the control or custody of Company while upon or near the Public Rights-Of-Way incident to the use of the Public Rights-Of-Way. Company releases the City from any liability, including claims for damages or extra compensation, arising from construction delays due to any activities by the City. Under no circumstances shall the City be liable to Company for any loss of service downtime, lost revenue or profits or third-party damages. 9.4 Survival. Company’s obligations under this Article 9 shall survive Termination of this Agreement. 9.5 No Waiver. The failure of either Party on one or more occasions to exercise a right or to require compliance or performance under this Agreement 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. ATTY/AGR.2024.018/Astound Broadband, LLC (Fiber Agreement) (Page 10 of 20) 6.E. - Page 13 of 23 182