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and Developer shall pay to City upon demand the actual cost of such repairs, replacements or
<br />reconstruction.
<br />17. 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 />18. Indemnification.
<br />181 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 />182 Developer's obligations under this Section 18 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 Improvements,
<br />or whether the City has insurance or other indemnification covering any of these matters.
<br />183 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 Improvements required herein, and shall likewise extend to adjacent
<br />property owners asserting claims based upon the diversion of waters caused by the Developer's
<br />design or construction of public drainage systems, streets, and other public facilities or
<br />Improvements. The City's acceptance of the Improvements shall not constitute an assumption by
<br />the City of any responsibility or liability for any damage or alleged taking of property referenced
<br />herein. City shall not be responsible or liable for the design or construction of the Improvements
<br />constructed or installed pursuant to the approved Improvements Plans. After City's acceptance of
<br />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 18.3 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 18.3,
<br />then such rights or obligations of indemnity hereunder shall be governed by principles of
<br />comparative fault.
<br />REV: 08-29-18 PR
<br />Page 9 of 24
<br />ATTY/AGR.2018.202/Kaiser MOB2 - IA
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