R2011-136 AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT

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ARTICLE VIII: DISCLAIMER OF WARRANTIES AND EXCLUSION OF REMEDIES: VENDOR'S WARRANTIES; USE. Section 8.01 Disclaimer of Warranties; Exclusion of Remedies. LESSEE ACKNOWLEDGES THAT LESSOR IS NOT THE MANUFACTURER OR THE DISTRIBUTOR OF THE PROPERTY. LESSEE AGREES THAT LESSOR HAS MADE AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS TO THE SUITABILITY, DURABILITY, FITNESS FOR USE, MERCHANTABILITY, CONDITION, OR QUALITY OF THE PROPERTY OR OF ANY UNIT THEREOF. LESSEE SPECIFICALLY WAIVES ALL RIGHTS TO MAKE ANY CLAIM AGAINST LESSOR AND ANY ASSIGNEE OF LESSOR FOR BREACH OF ANY WARRANTY OF ANY KIND WHATSOEVER. LESSEE LEASES THE PROPERTY "AS IS". LESSOR AND LESSOR'S ASSIGNEE SHALL NOT BE LIABLE TO LESSEE OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY ANY PROPERTY LEASED HEREUNDER, OR BY THE USE OR MAINTENANCE THEREOF, OF ANY DELAY, OR INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF, OR FOR ANY LOSS OF BUSINESS OR DAMAGE WHATSOEVER HOWSOEVER CAUSED. WITHOUT IN ANY WAY IMPLYING THAT ANY SUCH WARRANTY EXISTS AND WITHOUT MAKING ANY REPRESENTATION AS TO THE EXTENT OF ANY SUCH WARRANTY, LESSOR AGREES, TO THE EXTENT OF ITS LEGAL POWER TO MAKE SUCH ASSIGNMENT AND WITHOUT INCREASING ITS LIABILITY HEREUNDER, TO ASSIGN TO LESSEE UPON LESSEE'S REQUEST THEREFOR ANY WARRANTY OF A MANUFACTURER RELATING TO THE PROPERTY THAT MAY HAVE BEEN GIVEN TO LESSOR. Section 8.02 Vendor's Warranties. Lessor hereby irrevocably appoints Lessee as its agent and attorney-in-fact during the Lease Term, so long as Lessee shall not be in default hereunder, to assert whatever claims and rights, including warranties, which Lessor may have against the Vendor of the Property. Lessee's sole remedy for the breach of such warranty, indemnification or representation shall be against the Vendor of the Property. Lessee expressly acknowledges that Lessee has selected the Property and that Lessor makes, and has made, no representation or warranties whatsoever as to the existence of availability or enforceability of such warranties of the Vendor. Section 8.03 Use of the Property. Lessee will not install, use, operate or maintain the Property improperly, carelessly, in violation of any applicable law or in a manner contrary to that contemplated by this Agreement. Lessee shall provide all permits and licenses necessary for the installation and operation of the Property. In addition, Lessee agrees to comply with all laws of any jurisdiction in which its operations involving any item of Property may extend and any body exercising any power or jurisdiction over the items of the Property; provided, however, that Lessee, after written notice to Lessor, may contest in good faith the validity or application of any such law or rule in any reasonable manner which does not, in the opinion of 6