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The City's fees and expenses shall include all out-of-pocket expenses, such as
<br /> consultants and expert witness fees, and shall also include the reasonable value of any
<br /> services rendered by the counsel retained by the City(including the use of in-house
<br /> counsel)but shall not include outside attorneys' fees for services that are
<br /> unnecessarily duplicative of services provided the City by Company. Each party
<br /> agrees to cooperate and to cause its employees and agents to cooperate with the other
<br /> party in the defense of any such claim and the relevant records of each party shall be
<br /> available to the other party with respect to any such defense.
<br /> 22.6. Except to the extent that damage or injury arises from the gross negligence or willful
<br /> misconduct, malicious actions of the City, its employees or contractors,the
<br /> obligations of Company under the indemnification provisions of this Section 22.6
<br /> shall apply regardless of whether liability for damages arising out of bodily injury to
<br /> persons or damages to property were caused or contributed to by the concurrent
<br /> negligence of the City, its officers, agents,employees or contractors.
<br /> Notwithstanding the proceeding sentence, to the extent the provisions of RCW
<br /> 4.24.115 are applicable, the parties agree that the indemnity provisions hereunder
<br /> shall be deemed amended to conform to said statute and liability shall be allocated as
<br /> provided therein. It is further specifically and expressly understood that the
<br /> indemnification provided constitutes Company's waiver of immunity under Title 51
<br /> RCW, solely for the purposes of this indemnification,relating solely to indemnity
<br /> claims made by the City directly against the Company for claims made against the
<br /> City by Company's employees. This waiver has been mutually negotiated by the
<br /> parties.
<br /> 22.7. Company acknowledges and agrees that Company, bears all risks of loss or damage
<br /> or relocation or replacement of its Site Equipment and materials installed on City
<br /> Poles pursuant to this Agreement from any cause, and the City shall not be liable for
<br /> any cost of replacement or of repair to damaged Site Equipment, including, without
<br /> limitation,damage caused by the City's removal of the Site Equipment, loss of line of
<br /> sight path, activities conducted by the City, its officers, agents, employees,
<br /> volunteers, elected and appointed officials, or contractors,except to the extent any
<br /> such damage or destruction is caused by or arises from any grossly negligent, willful
<br /> misconduct, or criminal actions on the part of the City, its officers, agents,
<br /> employees, volunteers, or elected or appointed officials, or contractors. Company
<br /> releases and waives any and all such claims against the City, its officers, agents,
<br /> employees, volunteers, or elected or appointed officials, or contractors.
<br /> 22.8. Company shall indemnify, hold harmless and defend the City against any claims for
<br /> damages, including, but not limited to, consequential, special, indirect,business
<br /> interruption damages and lost profits,brought by or under users of Company's Site
<br /> Equipment as the result of any interruption of service due to damage or destruction of
<br /> Company's Site Equipment caused by or arising out of activities conducted by the
<br /> City, its officers, agents,employees or contractors, or any third parties,except to the
<br /> extent any such damage or destruction is caused by or arises from the gross
<br /> negligence, willful misconduct, or criminal actions on the part of the City, its officers,
<br /> employees, or elected or appointed officials. This limitation of liability shall apply
<br /> even if City is advised of the possibility thereof, whether such damages arise out of
<br /> breach of contract, breach of warranty, negligence, strict liability or any other theory
<br /> New Cingular Wireless PCS,LLC 18
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