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6. AGENCY NOTICE TO PROCEED FOR DESIGN AND CONSTRUCTION OF <br />PUBLICLY OWNED IMPROVEMENTS <br />Upon the issuance of a certificate of occupancy pursuant to the California Building Code <br />for (i) all residential units in a minimum of two of the three high -rise towers in the Nexus Project, <br />and (ii) all residential units in the Geneva Commons Project, the Agency shall give the City a <br />notice to proceed to design and construct the Publicly -Owned Improvements as set forth in Exhibit <br />A. If only a portion of the residential units have been constructed within five (5) years of the date <br />of the Commencement Date, then the Agency shall only give the City a notice to proceed with a <br />partial list of items as set forth in Exhibit C to this Agreement. The Agency's obligation to pay for <br />the Publicly -Owned improvements, and the City's obligation to complete these Publicly -Owned <br />Improvements, or any part thereof, shall be limited by the Agency's ability to fund said work from <br />the project - specific tax increment generated by the Nexus Project; provided, however, that City and <br />Agency shall construct item no. La. on the list of Publicly -Owned Improvements in Exhibit A to <br />this Agreement regardless of the project - specific tax increment received by the Agency. <br />COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF PUBLICLY <br />OWNED IMPROVEMENTS <br />a. City shall construct the Publicly -Owned Improvements in conformance with the <br />schedule set forth in Exhibit C to this Agreement and the approved Final Plans; provided, however, <br />that the Agency and City shall have no obligation once the cost of the Publicly -Owned <br />Improvements exceeds Five Million Dollars ($5,000,000.00). If the cost of the Publicly -Owned <br />Improvements, including all design, administrative and construction costs exceed $5,000,000.00, <br />then the City shall construct only that portion of the Publicly Owned Improvements as specified in <br />Exhibit C in the exercise of the Agency's sole and absolute discretion. <br />b. City shall, at the conclusion of the plant establishment phase specified in Exhibit B, <br />additionally maintain the climbing vines and irrigation constructed by Nexus along the outside of <br />the block wall, referenced in item no. 1 on Exhibit A hereto, but the City's obligation to maintain <br />the climbing vines shall only apply to those property owners who execute a facade easement with <br />the City in a form approved by the City Attorney permitting the City to maintain said climbing <br />vines and indemnifying the City from any liability caused by said climbing vines and/or irrigation. <br />Sandpointe shall be responsible for obtaining signatures from these individual homeowners. <br />8. LIABILITY AND INDEMNIFICATION DURING CONSTRUCTION; BODILY <br />INJURY AND PROPERTY DAMAGE INSURANCE <br />A. From and after the Effective Date, Nexus and Geneva Commons agree to and shall <br />indemnify and hold Agency, City and Sandpointe, and their respective officers, directors, agents <br />and employees harmless from and against all damages to property or injuries to or death of any <br />person or persons, including employees or agents of Agency or City, and shall defend, indemnify <br />EXHIBIT D <br />6 Ordinance No. NS -2680 <br />Page 35 of 51 <br />