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<br />X.
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<br />The District's Riqhts Paramount
<br />
<br />The District has advised the City and the City is aware that portions of the Property located along HCFCD
<br />Units 8106-00-00, 8109-00-00, 8509-03-00, and F216-00-00 were acquired for flood control and
<br />drainage purposes. The District presently uses said portions of the Property upon which the Trail is to be
<br />constructed for maintenance of HCFCD Units 8106-00-00, 8109-00-00,8509-03-00, and F216-00-00,
<br />and the District contemplates future use of the Property for widening of the drainage facility and for other
<br />flood control and drainage improvements as the need for the same may arise and funds may be available.
<br />The District hereby expressly reserves to itself, its officers, employees, agents, and contractors, the right to
<br />enter upon said Property and Trail at any time for any purpose necessary or convenient in connection with
<br />drainage and flood control work, to flood said Property and Trail, and to make such other use of said
<br />Property and Trail as may be necessary or desirable in connection with drainage and flood control, and the
<br />City shall have no claim for damages of any character on account thereof against the District, or any officer,
<br />employee, agent, or contractor thereof. The District shall have no responsibility to replace or repair any
<br />portion of the Trail that is damaged in the course of such flood control activities. If the Trail or other
<br />structures appurtenant thereto constructed by the City, including but not limited to, railings or low water
<br />crossings, are damaged by the District during drainage or flood control activities or by the flow of water in the
<br />channel, the District reserves the right not to allow the City to rebuild the Trail or replace the structures
<br />appurtenant thereto if to do so would in the Director's opinion impede the flow of water in the channel. The
<br />District further reserves the right to remove portions of the Trail from time to time as the Director
<br />determines necessary or convenient to accommodate channel improvements, and further, to not
<br />permit the City to rebuild same. The District makes no representation as to the suitability of the soils
<br />or the stability of the channel bank for the City's intended purposes. The City understands that in
<br />the event of a failure involving distinct elements of the Trail's construction, the District may not
<br />permit the City to replace those elements.
<br />
<br />XI.
<br />
<br />Covenant Not To Sue and Release
<br />
<br />THE CITY COVENANTS NOT TO SUE AND AGREES TO RELEASE THE DISTRICT AND ITS
<br />AGENTS, OFFICERS, SERVANTS, EMPLOYEES, REPRESENTATIVES, LICENSEES, AND
<br />INVITEES (HEREINAFTER IN THIS ARTICLE, THE "DISTRICT") FROM AND AGAINST ANY
<br />AND ALL LOSSES, LIABILITY, CLAIMS DEMANDS, AND CAUSES OF ACTION OF EVERY
<br />CHARACTER AND KIND RESULTING FROM PERSONAL INJURY, ILLNESS, OR DAMAGE TO
<br />OR LOSS OF PROPERTY OCCURRING, GROWING OUT OF, INCIDENT TO, OR RESULTING
<br />DIRECTLY OR INDIRECTLY FROM THE ACTIONS OF THE CITY, ITS EMPLOYEES, AGENTS,
<br />SERVANTS, REPRESENTATIVE, LICENSEES, OR INVITEES IN SECURING, EXERCISING, OR
<br />IN ANY MANNER PERFORMING THE TERMS AND CONDITIONS OF THIS AGREEMENT. IT IS
<br />THE EXPRESS INTENT OF THE PARTIES TO THIS AGREEMENT THAT THE COVENANT NOT
<br />TO SUE AND TO RELEASE PROVIDED FOR IN THIS ARTICLE IS EXTENDED BY THE CITY TO
<br />ALSO RELEASE THE DISTRICT FROM THE CONSEQUENCES OF THE DISTRICT'S OWN
<br />NEGLIGENCE. THIS COVENANT NOT TO SUE AND TO RELEASE SHALL APPLY EVEN
<br />THOUGH ANY DAMAGE, INJURY, SICKNESS, OR DEATH IS CAUSED IN WHOLE OR IN PART
<br />BY ANY DEFECT IN OR CONDITION OF ANY PROPERTY, AREA, FACILITIES EQUIPMENT,
<br />TOOLS, OR OTHER ITEMS WHICH MAY BE PROVIDED BY THE DISTRICT, WHETHER OR
<br />NOT SUCH DEFECT OR CONDITION WAS KNOWN OR COULD HAVE BEEN KNOWN BY THE
<br />DISTRICT. THE COVENANT NOT TO SUE AND TO RELEASE PROVIDED HEREIN SHALL NOT
<br />BE CONSTRUED IN ANY WAY TO LIMIT INSURANCE COVERAGES PROVIDED BY THE CITY
<br />FOR THE DISTRICT PURSUANT TO THE TERMS OF THIS AGREEMENT, WHICH INSURANCE
<br />REQUIREMENT IS INDEPENDENT FROM AND IN ADDITION TO SUCH CONVENANT NOT TO
<br />SUE AND TO RELEASE.
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