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Developer shall maintain the Adjacent City Property and adjacent sidewalks,
<br /> public and private, at all times in a neat, clean, safe, litter -free, odor -free, sanitary condition;
<br /> maintenance includes, but is not limited to, steam cleaning of sidewalk and paved surfaces as
<br /> necessary to remove grime and grease, and removal of foodstuff from public seating in and adjacent
<br /> to Adjacent City Property. Developer shall, on a daily basis, clean Adjacent City Property and
<br /> remove all trash and garbage from said area. Developer shall comply with all requirements of the
<br /> City, the Agency, and Alameda County applicable to the use and maintenance of the Adjacent City
<br /> Property.
<br /> • (b) Fees. Developer shall maintain the Adjacent City Property
<br /> Improvements in consideration of the development opportunity afforded under this Agreement and in
<br /> lieu of an annual fee to the City. In the event the Developer fails to comply with these requirements,
<br /> the City may, at its option (but without obligation to so do) take any actions which it deems
<br /> • necessary or convenient to perform the necessary maintenance to correct the deficiency and bill the
<br /> Developer for all costs. The foregoing, and the obligation of the Developer to pay promptly upon
<br /> receipt of any such billing, is in addition to all rights the Agency shall have for performance and
<br /> remedies under this Agreement, and any rights the City may additionally have under the entitlement
<br /> process for the improvements as described in this Agreement.
<br /> (c) Hold Harmless and Responsibility of Developer. Developer shall
<br /> take all responsibility for the Adjacent City Property Improvements as the responsibility of the
<br /> Developer, and shall bear all losses and damages directly or indirectly resulting from or in
<br /> connection with the Adjacent City Property, the Adjacent City Property Improvements, or the
<br /> maintenance thereof, and for any claims, suits, losses, or damages arising from the condition of the
<br /> Adjacent City Property (including without limitation maintenance, walkways, and any other physical
<br /> improvements), use of the Adjacent City Property, or any performance required of Developer under
<br /> this Agreement as to the Adjacent City Property. Developer shall indemnify, defend and hold
<br /> harmless the City, its officers, officials, directors, employees, and agents (and the Agency, its
<br /> officers, officials, directors, employees, and agents) from and against any or all loss, liability,
<br /> expense, claim, costs (including costs of defense), suits, and damages of every kind, nature and
<br /> description directly or indirectly arising from the performance of the work or use of public property
<br /> and /or from or in connection with the condition of the Adjacent City Property (including without
<br /> limitation maintenance, walkways, and any other physical improvements), use of the Adjacent City
<br /> Property, or any performance required of Developer under this Agreement as to the Adjacent City
<br /> Property. This paragraph shall not be construed to exempt the City, its employees and officers from
<br /> its own fraud, willful injury or violation of law where the City has acted willfully or at its sole
<br /> negligence. For purposes of Section 2782 of the Civil Code the parties hereto recognize and agree
<br /> that this Agreement is a construction contract. Developer acknowledges and agrees that it has read
<br /> and understands the provisions hereof and that this paragraph is a material element of consideration,
<br /> and that but for the entering into this obligation by Developer, the Agency would not approve this
<br /> Agreement or convey the Property to the Developer. Approval of the insurance contracts does not
<br /> relieve the Developer or its contractors from liability under this paragraph.
<br /> (d) Insurance Requirements. The Developer shall execute and deliver to
<br /> City or cause its contractor(s) to execute and deliver to City the Certificate of Insurance in form
<br /> required under this Agreement.
<br /> (e) Maintenance shall be accomplished in conformity with the
<br /> "Maintenance Standards," as hereinafter defined, of the private improvements and public
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