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6. AGENCY NOTICE TO PROCEED FOR DESIGN AND CONSTRUCTION OF PUBLICLY OWNED IMPROVEMENTS Upon the issuance of a certificate of occupancy pursuant to the California Building Code for (i) all residential units in a minimum of two of the three high-rise towers in the Nexus Project, and (ii) all residential units in the Geneva Commons Project, the Agency shall give the City a notice to proceed to design and construct the Publicly-Owned Improvements as set forth in Exhibit A. If only a portion ofthe residential units have been constructed within five (5) years ofthe date of the Commencement Date, then the Agency shall only give the City a notice to proceed with a partial list of items as set forth in Exhibit C to this Agreement. The Agency's obligation to pay for the Publicly-Owned improvements, and the City's obligation to complete these Publicly-Owned Improvements, or any part thereof, shall be limited by the Agency's ability to fund said work from the project-specific tax increment generated by the Nexus Project; provided, however, that City and Agency shall construct item no. l.a. on the list of Publicly-Owned Improvements in Exhibit A to this Agreement regardless ofthe project-specific tax increment received by the Agency. 7. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF PUBLICLY OWNED IMPROVEMENTS a. City shall construct the Publicly-Owned Improvements in conformance with the schedule set forth in Exhibit C to this Agreement and the approved Final Plans; provided, however, that the Agency and City shall have no obligation once the cost of the Publicly-Owned Improvements exceeds Five Million Dollars ($5,000,000.00). If the cost of the Publicly-Owned Improvements, including all design, administrative and construction costs exceed $5,000,000.00, then the City shall construct only that portion of the Publicly Owned Improvements as specified in Exhibit C in the exercise of the Agency's sole and absolute discretion. b. City shall, at the conclusion of the plant establishment phase specified in Exhibit B, additionally maintain the climbing vines and irrigation constructed by Nexus along the outside of the block wall, referenced in item no. I on Exhibit A hereto, but the City's obligation to maintain the climbing vines shall only apply to those property owners who execute a fa<;ade easement with the City in a form approved by the City Attorney permitting the City to maintain said climbing vines and indemnifYing the City from any liability caused by said climbing vines and/or irrigation. Sandpointe shall be responsible for obtaining signatures from these individual homeowners. 8. LIABILITY AND INDEMNIFICATION DURING CONSTRUCTION; BODILY INJURY AND PROPERTY DAMAGE INSURANCE A. From and after the Effective Date, Nexus and Geneva Commons agree to and shall indemnify and hold Agency, City and Sandpointe, and their respective officers, directors, agents and employees harmless from and against all damages to property or injuries to or death of any person or persons, including employees or agents of Agency or City, and shall defend, indemnify EXHIBIT D n 11 A-35