|
solely that of Developer and lender, City neither undertakes nor assumes any responsibility to
<br />review, inspect, supervise, approve (other than for aesthetics) or inform Developer of any matter
<br />in connection with the construction, including matters relating to: (i) the performance of the
<br />construction work, (ii) architects, contractors, subcontractors and materialmen, or the
<br />workmanship of or materials used by any of them, or (iii) the progress of the construction; and
<br />Developer shall rely entirely on its own judgment with respect to such matters and acknowledges
<br />that any review, inspection, supervision, approval or information supplied to Developer by City
<br />in connection with such matters is solely for the protection of City and that neither Developer nor
<br />any third party is entitled to rely on it;
<br />b. Notwithstanding any other provision of any Loan Document: (i) the City
<br />is not a partner, joint venture, alter -ego, manager, controlling person or other business associate
<br />or participant of any kind of Developer and City does not intend to ever assume any such status;
<br />(ii) City's activities in connection with the Loan shall not be "outside the scope of the activities of
<br />a lender of money" within the meaning of California Civil Code Section 3434, as modified or
<br />recodified from time to time, and City does not intend to ever assume any responsibility to any
<br />person for the quality or safety of the Property; and (iii) City shall not be deemed responsible for
<br />or a participant in any acts, omissions or decisions of Developer;
<br />C. City shall not be directly or indirectly liable or responsible for any loss or
<br />injury of any kind to any person or property resulting from any construction on, or occupancy or
<br />use of, the Property, whether arising from: (i) any defect in any building, grading, landscaping or
<br />other onsite or offsite improvement; (ii) any act or omission of Developer or any of Developer's
<br />agents, employees, independent contractors, licensees or invitees; or (iii) any accident on the
<br />Property or any fire or other casualty or hazard thereon; and
<br />d. By accepting or approving anything required to be performed or given to
<br />City under the Loan Documents, including any certificate, financial statement, survey, appraisal
<br />or insurance policy, City shall not be deemed to have warranted or represented the sufficiency or
<br />legal effect of the same, and no such acceptance or approval shall constitute a warranty or
<br />representation by City to anyone.
<br />18.2 Indemnity. Developer shall defend (by counsel satisfactory to City), indemnify
<br />and save and hold harmless the Indemnitees from and against all claims, damages, demands,
<br />actions, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees and
<br />court costs) arising from or relating to (i) this Agreement; (ii) the malting of the Loan(s); (iii) a
<br />claim, demand or cause of action that any person has or asserts against Developer; (iv) any act or
<br />omission of Developer, any contractor, subcontractor or material supplier, engineer, architect or
<br />other person with respect to the Property; or (vi) the ownership, occupancy or use of the
<br />Property. Notwithstanding the foregoing, Developer shall not be obligated to indemnify City
<br />with respect to the consequences of any act of gross negligence or willful misconduct of City.
<br />Developer's obligations under this Section shall survive the cancellation of the City Promissory
<br />Note, release and reconveyance of the City Deed of Trust, issuance of the Certificate of
<br />Completion, and termination of this Agreement.
<br />31
<br />1076 \53 \1389382.1
<br />
|