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the necessary repairs, replacements or perform the necessary reconstruction and Developer shall pay to
<br /> City upon demand the actual cost of such repairs, replacements or reconstruction.
<br /> 16. Developer Not Agent of City. Neither Developer nor Developer's contractors,
<br /> subcontractors, agents, officers, or employees are agents or employees of City and the Developer's
<br /> relationship to City, if any, arising herefrom is strictly that of an independent contractor.
<br /> 17. Indemnification.
<br /> 171 Neither the City, nor its officers, agents nor employees, shall be liable or
<br /> responsible for any accident, injury, loss, or damage to either property or person attributable to or
<br /> arising out of the construction or installation of the Improvements. Developer shall indemnify,
<br /> hold harmless and defend the City, its officers, agents and employees, from and against any and
<br /> all losses, claims, costs, expenses, liabilities, damages, actions, causes of action and judgments,
<br /> including reasonable attorneys' fees, arising out of or attributable to Developer's performance
<br /> under this Agreement. Notwithstanding the forgoing, Developer shall not be obligated under this
<br /> Agreement to defend and/or indemnify the City to the extent that any of the damage or injury is
<br /> caused by the gross negligence or willful misconduct of the City or its agents or employees.
<br /> 172 Developer's obligations under this Section 17 are not conditioned or dependent
<br /> upon the City, or its officers, agents and employees, whether the City prepared, supplied or
<br /> reviewed any Improvement Plans or related specifications in connection with the Subdivision or
<br /> the Improvements, or whether the City has insurance or other indemnification covering any of
<br /> these matters.
<br /> 173 Developer's obligation to indemnify, hold harmless and defend the City shall
<br /> extend to injuries to persons and damages to or alleged taking of property resulting from the
<br /> design or construction of the Subdivision, and the Improvements required herein, and shall
<br /> likewise extend to adjacent property owners asserting claims based upon the diversion of waters
<br /> caused by the Developer's design or construction of the Improvements. The City's acceptance of
<br /> the Improvements shall not constitute an assumption by the City of any responsibility or liability
<br /> for any damage or alleged taking of property referenced herein. City shall not be responsible or
<br /> liable for the design or construction of the Subdivision or the Improvements constructed or
<br /> installed pursuant to the approved Improvements Plans or the Final Map. After City's acceptance
<br /> of the Improvements, the Developer shall remain obligated to correct or eliminate all dangerous
<br /> conditions created by defects in design or construction; provided, however, that the Developer
<br /> shall not be responsible for routine maintenance. Developer's obligations hereunder shall remain
<br /> in effect for ten (10) years following acceptance of the Improvements by the City Council.
<br /> Developer acknowledges and agrees that Developer shall be responsible and liable for the design
<br /> and construction of the Improvements and other work done pursuant to this Agreement, and City
<br /> shall not be liable for any acts or omissions in approving, reviewing, checking, correcting or
<br /> modifying any Improvement Plans or related specifications, or in inspecting, reviewing or
<br /> approving any work or construction of Improvements. The Developer's improvement security
<br /> shall not be required to secure the Developers obligations under this Subsection 17.3 beyond the
<br /> one-year guarantee and warranty period. If, in any judicial proceedings involving statutory
<br /> immunity under the Government Claims Act (Government Code Sections 810, et seq.) asserted
<br /> by the City, or its officers, agents or employees, is determined by a court of competent
<br /> jurisdiction to be inapplicable or unavailable to immunize the City, or its officers, agents or
<br /> employees, from potential liability for any alleged acts or omissions under this Subsection 17.3,
<br /> then such rights or obligations of indemnity hereunder shall be governed by principles of
<br /> comparative fault.
<br /> REV: 10-12-15 VR
<br /> Page 7 of19
<br /> ATTY/AGR.2015.229/Premia 550 Owner, LLC
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