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3. Use of ROW. The ROW shall be accessible by the general public. Except for
<br /> work to be performed pursuant to this Agreement and except as approved by the City (which
<br /> approval shall not be unreasonably withheld, conditioned or delayed), Developer agrees that
<br /> neither they nor any successor may erect any structure, perform any improvement work, or
<br /> conduct any activity or otherwise cause any activity or situation to exist that will inhibit or impair
<br /> the use of the ROW.
<br /> 4. Right of the City to Remedy Failure of Maintenance Obligation.If Developer
<br /> fails to comply with the provisions of this Agreement, including any failure to maintain the
<br /> Maintenance Areas and/or the Maintenance Area Improvements, as set forth above,then the City
<br /> may deliver written notice to Developer identifying the specific defects regarding the maintenance
<br /> of the Maintenance Areas or Maintenance Area Improvements ("Defects Notice"). The Defects
<br /> Notice shall specify the date by which Developer must remedy the specific defects identified in
<br /> the Defects Notice in order to avoid action by the City, which date, except in the case of an
<br /> emergency situation, shall be no less than fifteen(15) days after Developer's actual receipt of the
<br /> Defects Notice. If the City determines a hazardous situation exists which must be remedied
<br /> immediately ("emergency situation"), then the City will provide written notice to Developer
<br /> specifying the emergency situation must be remedied within twenty-four(24)hours or such other
<br /> time as may be mutually agreed upon by the Parties.
<br /> If, after notice from the City, Developer fails to correct the specific defects
<br /> identified in the Defects Notice within the time period specified in the Defects Notice, the City
<br /> shall have the right to remedy the specific defects identified in the Defects Notice. The City or its
<br /> assignees shall have the right of access, ingress and egress upon and across the Maintenance
<br /> Areas as may be necessary to complete such remedial work. The City may retain, as its election,
<br /> its own contractors, or Developer's contractors, or other third party maintenance company to
<br /> complete the remedial work. Any costs incurred by the City for the remedial work needed to
<br /> remedy the specific defects identified in the Defects Notice shall, to the extent such costs are
<br /> reasonable and actually incurred,be borne solely by Developer. The City shall provide a written
<br /> itemized invoice and back-up documentation for such costs (e.g., documentation evidencing the
<br /> number of worker hours spent performing the remedial work, receipts for the purchase of any
<br /> materials or lease of any equipment needed to perform the remedial work, mechanics' lien
<br /> releases, etc.) to Developer within thirty (30) days after the completion of the remedial work.
<br /> Developer shall remit payment to the City within thirty (30) days from Developer's receipt of the
<br /> invoice and back-up documentation; provided, however, that Developer may reasonably dispute
<br /> any invoiced costs by written notice within fifteen (15) days, and upon such notice, the Parties
<br /> shall meet and confer in good faith to resolve such a dispute prior to any enforcement action by
<br /> the City. The Parties agree that any remedial work undertaken by the City under this section shall
<br /> not terminate the maintenance obligations of Developer under this Agreement.
<br /> 5. Developer Indemnity. To the fullest extent allowed by law, Developer shall
<br /> indemnify, defend (with legal counsel reasonably acceptable to the City), and hold harmless the
<br /> City, its officers, agents, employees, representatives and volunteers from and against any
<br /> liability, claims, actions, costs, damages or losses, including reasonable costs and attorney's fees,
<br /> for injury to persons, including death of any person, or damage to any property, arising directly
<br /> or indirectly from the gross negligence or willful misconduct of Developer, its agents, or
<br /> contractors in the performance of this Agreement. However, Developer shall have no
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