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17.1 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 /> 17.2 Developer's obligations under this Section 17 are not conditioned or dependent
<br /> upon the City, or its officers, agents and employees, whether the Ciry 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 /> 17.3 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 Subdivider's design or construction of public drainage systems, streets, and other
<br /> public facilities or improvements. The City's acceptance of the Improvements shall not constitute
<br /> an assumption by the City of any responsibility or liability for any damage or alleged taking of
<br /> property referenced herein. City shall not be responsible or liable for the design or construction
<br /> of the Subdivision or the Improvements constructed or installed pursuant to the approved
<br /> Improvements Plans or the Final Map,unless the particular Improvement design was required by
<br /> the City over the Written Objection of the Developer, which objection stated that the
<br /> Improvement design was potentially dangerous or defective and set forth an alternative design.
<br /> After City's acceptance of the Improvements, the Developer shall remain obligated to correct or
<br /> eliminate all dangerous conditions created by defects in design or construction; provided,
<br /> however, that the Developer shall not be responsible for routine maintenance. Developer's
<br /> obligations hereunder shall remain in effect for ten (10) years following acceptance of the
<br /> Improvements by the City Council. Developer acknowledges and agrees that Developer shall be
<br /> responsible and liable for the design and construction of the Improvements and other work done
<br /> pursuant to this Agreement, and City shall not be liable for any acts or omissions in approving,
<br /> reviewing, checking, correcting or modifying any Improvement Plans ar related specifications,or
<br /> in inspecting, reviewing or approving any work or construction of Improvements. The
<br /> Developer's improvement security shall not be required to secure the Developers obligations
<br /> under this subparagraph C beyond the two-year guarantee and warranty period. If, in any judicial
<br /> proceedings involving statutory immunity under the Tort Claims Act (Government Code 810, et
<br /> seq.) asserted by the City, or its officers, agents or employees, is determined by a court of
<br /> competent jurisdiction to be inapplicable or unavailable to immunize the City, or its officers,
<br /> agents or employees, from potential liability for any alleged acts or omissions under this Section
<br /> 17.3, then such rights or obligations of indemnity hereunder shall be governed by principles of
<br /> comparative fault.
<br /> 18. Insurance.
<br /> 18.1 Developer shall, before the release of said final map by City for recordation,
<br /> obtain and maintain in full force and effect during the term of this Agreement, at Developer's
<br /> own expense and risk, Worker's Compensation, a general comprehensive liability insurance
<br /> ATTY/AGR/2013.053/IMPROVEMENT AGR-BAIR ISLAND RD PHASE II
<br /> REV:04-18-13 VR
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