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Execution Version
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<br />be disconnected and removed. Any holes left by removal shall be filled in by EBCE.
<br />13. Representations. Warranties & Covenants. City and EBCE each hereby represent and warrant to
<br />the other that, as of the Effective Date: (a) it has all necessary power and authority to execute, deliver,
<br />and perform its obligations hereunder; (b) the execution, delivery, and performance of the Agreement
<br />have been duly authorized by all necessary action and do not violate any of the terms or conditions of its
<br />governing documents, any contract to which it is a party, or any law, regulation, order, or other legal
<br />determination applicable to it; (c) there is no pending or, to its knowledge, threatened litigation or
<br />proceeding that may adversely affect its ability to perform the Agreement; (d) it is duly organized and
<br />validly existing under the laws of the jurisdiction of its organization; (e) the Agreement constitutes a legal,
<br />valid and binding obligation of such Party, except as enforceability may be limited by applicable
<br />bankruptcy, insolvency or similar laws affecting creditors' rights and by general principles of equity. Both
<br />Parties shall comply with all federal, state, and local laws, rules, regulations (including, without limitation,
<br />all zoning ordinances and building codes, nondiscrimination laws) and as amended from time-to-time in
<br />performing its obligations under the Agreement.
<br />14. Indemnity. Each Party shall indemnify and hold harmless the other Party, and their respective
<br />affiliates, representatives, agents, officers, officials, directors, managers, members, partners, contractors,
<br />or employees, from and against all third-party claims, demands, causes of action, liabilities, costs,
<br />damages, losses, penalties, fines, judgments or expenses, including reasonable attorneys' fees and costs
<br />of collection (collectively, "Losses") that arise out of or result from (i) any negligence of the indemnifying
<br />Party in connection with this Agreement, (ii) any breach by the indemnifying Party of its obligations,
<br />representations or warranties under this Agreement, or (iii) the indemnifying Party’s operation of the
<br />Premises or Property, except to the extent arising out of or resulting from any willful misconduct or gross
<br />negligence of the indemnified Party. The obligations of the Parties under this Section shall survive the
<br />expiration, cancellation, or termination of this Agreement and the Term.
<br />Notwithstanding the forgoing, to the extent this Agreement is a “construction contract” as defined by
<br />California Civil Code Section 2782, as may be amended from time to time, such duties of EBCE to
<br />indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.
<br />Each Party’s obligation to defend and indemnify shall not be excused because of such Party’s inability to
<br />evaluate Losses or because such Party evaluates Losses and determines that it is not liable to the
<br />claimant. Each Party must respond within thirty (30) days to the tender of any claim for defense and
<br />indemnity by the other Party.
<br />15. Insurance. During the Term, EBCE shall maintain insurance in full force and effect, at its cost and
<br />expense, as set forth in Exhibit D, attached hereto and incorporated herein by this reference. The
<br />insurance limits required of EBCE may be satisfied through self-insurance or a JPA, as designated in
<br />Exhibit D.
<br />16. Limitation of Liability. In no event shall either Party be liable (in contract or in tort, including negligence
<br />and strict liability) to such other Party for any special, indirect or consequential damages relating to any
<br />claims between the Parties arising out of this Agreement; provided that such limitation shall not apply to
<br />any third-party claims that are subject to indemnity under Section 14 above. The provisions of this Section
<br />shall apply to the full extent permitted by law and shall survive termination of this Agreement.
<br />17. Miscellaneous.
<br />a. Notice. Any notice provided or permitted to be given under the Agreement must be in
<br />writing and be served either by (i) deposit in the mail, addressed to the Party to be notified, postage
<br />prepaid, and registered or certified, with a return receipt requested, or (ii) deposit with an internationally-
<br />recognized overnight delivery carrier, with notice of delivery to the recipient Party. Notice given by
<br />registered or certified mail or overnight carrier shall be deemed delivered and effective on the date of
<br />delivery shown on the return receipt or proof of receipt. Each Party may change its address for notice by
<br />giving notice thereof to the other Party. For purposes of notice the addresses of the Parties shall be as
<br />DocuSign Envelope ID: 9A9D2499-76B9-48B0-8ECE-EF852438F252DocuSign Envelope ID: EC3D6FF2-1EAC-45AF-8666-F6EEFB410D6F
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