2022/07/20 Council Agenda Packet

Area will function as a normal right-of-way. 4. USE OF CONTROLLED AREA The City retains all rights to access and use the Controlled Area for utilities and for other City purposes. The City retains the right to grant franchise, easement or other rights to access and use the Controlled Area; provided, however, that, except for franchises and rights arising from franchises, any grant by the City after the date of this Agreement shall not interfere with the Port's rights under this Agreement. The Port may not block access by the City or City contractors, except as otherwise may be required by the United States Customs and Border Protection (or any successor agency). In no event will the Port block access to the Controlled Area by Everett Public Works, Everett Police, or the Everett Fire Department or block access in way that makes persons to whom the City grants or has granted easements, franchise rights or other rights to use the Controlled Area unable to exercise such granted rights. The Port may also use the Controlled Area to install, maintain, repair, and replace the Utilities. The Port shall obtain all necessary permits and approvals for such Utilities. The Port shall participate in Washington811 and respond to utility locate requests for the Controlled Area. 5. COMPLIANCE WITH APPLICABLE LAW The Port shall exercise its rights under this Agreement above in compliance with all applicable law. 6. PORT SOLE RISK The City makes no warranties or representations about the adequacy of the Controlled Area for the Port's activities under this Agreement. The Port uses the Controlled Area strictly as -is and at its sole risk. The Port, as a material part of the consideration to the City, hereby assumes all risk of damage to property or injury to persons in, upon or about the Controlled Area from any cause other than and to the extent of the City's gross negligence or willful misconduct. The Port shall give prompt notice to the City in case of casualty or accident or hazardous substance release in the Controlled Area. 7. REPAIRS The Port shall use care to avoid damaging or destroying the Controlled Area or other City property by reason of its activities pursuant to this Agreement. Any damage caused by the Port, beyond normal wear and tear, shall be promptly repaired or replaced by the Port. 8. INDEMNIFICATION. (a) Indemnity. The Port shall indemnify, defend and hold harmless the City against and from any and all claims, actions, damages, liability, costs and expenses, including attorney's fees, arising out of or relating to this Agreement, including without limitation claims, actions, Interlocal Agreement Page 2 109901896.6 0073013-00041