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<br />34
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<br />subcontractors and materialmen, or the workmanship of or materials used by any of them,
<br />or (iii) the progress of the construction; and Developer shall rely entirely on its own
<br />judgment with respect to such matters and acknowledges that any review, inspection,
<br />supervision, approval or information supplied to Developer by Agency in connection
<br />with such matters is solely for the protection of Agency and that neither Developer nor
<br />any third party is entitled to rely on it;
<br />
<br />(b) Notwithstanding any other provision of any Loan Document: (i)
<br />the Agency is not a partner, joint venture, alter-ego, manager, controlling person or other
<br />business associate or participant of any kind of Developer and Agency does not intend to
<br />ever assume any such status; (ii) Agency’s activities in connection with the Loan shall
<br />not be “outside the scope of the activities of a lender of money” within the meaning of
<br />California Civil Code Section 3434, as modified or recodified from time to time, and
<br />Agency does not intend to ever assume any responsibility to any person for the quality or
<br />safety of the Property; and (iii) Agency shall not be deemed responsible for or a
<br />participant in any acts, omissions or decisions of Developer;
<br />
<br />(c) Agency shall not be directly or indirectly liable or responsible for
<br />any loss or injury of any kind to any person or property resulting from any construction
<br />on, or occupancy or use of, the Property, whether arising from: (i) any defect in any
<br />building, grading, landscaping or other onsite or offsite improvement; (ii) any act or
<br />omission of Developer or any of Developer’s agents, employees, independent
<br />contractors, licensees or invitees; or (iii) any accident on the Property or any fire or other
<br />casualty or hazard thereon; and,
<br />
<br />(d) By accepting or approving anything required to be performed or
<br />given to Agency under the Loan Documents, including any certificate, financial
<br />statement, survey, appraisal or insurance policy, Agency shall not be deemed to have
<br />warranted or represented the sufficiency or legal effect of the same, and no such
<br />acceptance or approval shall constitute a warranty or representation by Agency to
<br />anyone.
<br />
<br />18.2 Indemnity. Developer shall defend (by counsel satisfactory to Agency),
<br />indemnify, save and hold harmless the Indemnitees from and against all claims, damages,
<br />demands, actions, losses, liabilities, costs and expenses (including, without limitation,
<br />attorneys' fees and court costs) arising from or relating to (i) this Agreement; (ii) the
<br />making of the Loan(s); (iii) a claim, demand or cause of action that any person has or
<br />asserts against Developer; (iv) any act or omission of Developer, any contractor,
<br />subcontractor or material supplier, engineer, architect or other person with respect to the
<br />Property; or (v) the ownership, occupancy or use of the Property. Notwithstanding the
<br />foregoing, Developer shall not be obligated to indemnify Agency with respect to the
<br />consequences of any act of gross negligence or willful misconduct of Agency.
<br />Developer's obligations under this Section shall survive the cancellation of the Agency
<br />Promissory Note, release and re-conveyance of the Agency Deed of Trust, issuance of the
<br />Certificate of Completion, and termination of this Agreement.
<br />
<br />EXHIBIT 3
<br />3-44
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