|
(i) the use, occupancy, or maintenance of, or operation within, the Encroachment Area of the
<br /> Property, (ii) any representations and/or warranties by Owner (as the case may be) under this
<br /> Agreement,(iii)any personal injuries(including but not limited to death)to any Owner Persons(as
<br /> hereinafter defined) and any third persons or parties arising out of or in connection with Owner's
<br /> use, occupancy, or maintenance of, or operation within, the Encroachment Area, under this
<br /> Agreement, and/or
<br /> (iv) any act or omission under, in performance of, or in connection with this Agreement by Owner
<br /> or by any of their respective owners, directors, officers, managers, partners, employees, agents,
<br /> contractors, subcontractors, invitees, patrons, guests, customers, licensees, or any other person or
<br /> entity for whom Owner is legally responsible, and their respective owners, directors, officers,
<br /> directors, officers, managers, partners, employees, agents, contractors, subcontractors, invitees,
<br /> patrons, guests, customers, and licensees (collectively, "Owner Persons"). SUCH DEFENSE,
<br /> INDEMNITY AND HOLD HARMLESS SHALL AND DOES INCLUDE CLAIMS ALLEGED OR
<br /> FOUND TO HAVE BEEN CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR
<br /> GROSS NEGLIGENCE OF ANY CITY PERSON,OR CONDUCT BY ANY CITY PERSON THAT
<br /> WOULD GIVE RISE TO STRICT LIABILITY OF ANY KIND. However, Owner's liability under
<br /> this section shall be reduced by that portion of the total amount of the Claims(excluding defense fees
<br /> and costs)equal to the City Person or City Persons'proportionate share of the negligence,or conduct
<br /> that would give rise to strict liability of any kind,that caused the loss.Likewise,Owner's liability for
<br /> City Person's defense costs and attorneys' fees shall be reduced by that portion of the defense costs
<br /> and attorneys'fees equal to City Person or Persons'proportionate share of the negligence,or conduct
<br /> that would give rise to strict liability of any kind,that caused the loss.
<br /> Owner shall promptly advise the City in writing of any claim or demand against any City
<br /> Person related to or arising out of Owner's activities under this Agreement and shall see to the
<br /> investigation and defense of such claim or demand at Owner 's sole cost and expense. The City
<br /> Persons shall have the right, at the City Persons' option and own expense, to participate in such
<br /> defense without relieving Owner of any of its obligations hereunder. This defense, indemnity,and
<br /> hold harmless provision shall survive the termination or expiration of this Agreement.
<br /> 8. Termination.This Agreement and the license granted hereunder may be terminated:
<br /> (a) By the City:
<br /> (i) in the event Owner fails to comply with any of the terms of this Agreement
<br /> within ten (10) business days after receipt of notice by Owner from the City of such
<br /> failure to comply;or
<br /> (ii) if Owner discontinues the use of the Property, or abandons the use of the
<br /> Encroachment Area for the purposes set forth herein;or
<br /> (iii) for any reason or for no reason whatsoever upon thirty(30)days'written notice
<br /> by the City to Owner;or
<br /> (b) For any reason or for no reason whatsoever by Owner upon thirty (30) days' written
<br /> notice by Owner to the City.
<br /> Encroachment Agreement
<br /> Page 5 of 8
<br />
|