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5)Waiver of Subrogation. Borrower hereby agrees to waive subrogation which any insurer
<br />or contractor may require from vendor by virtue of the payment of any loss. Borrower
<br />agrees to obtain any endorsements that may be necessary to affect this waiver of
<br />subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of
<br />subrogation in favor of the entity for all work performed by the Borrower, its employees,
<br />agents, and subcontractors.
<br />D.Subcontractors.Borrower shall include, or require its general or prime contractor to include, all
<br />subcontractors as insureds under its policies or shall furnish separate certificates and
<br />endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of
<br />the requirements stated herein.
<br />The City Risk Manager may approve a variation in those insurance requirements upon a
<br />determination that the coverages, scope, limits and forms of such insurance are either not commercially
<br />available or that the City's interests are otherwise fully protected.
<br />3.4MAINTENANCE. Participant shall maintain the Improvements to the City’s standards and
<br />repair Improvements at Participant’s own expense for a period of not less than ten (10) years after completion
<br />thereof.
<br />3.5INDEMNIFICATION. Borrower shall indemnify, defend (with counsel reasonably acceptable
<br />to City), and hold harmless the City and its respective elected and appointed officials, officers, agents, and
<br />employees (collectively the Indemnitees"), from and against, and shall pay on demand, any and all losses,
<br />liabilities, damages, costs, claims, demands, penalties, fines, orders, judgments, injunctive or other relief,
<br />expenses and charges (including attorneys’ fees and expenses of attorneys) (collectively “Liabilities”)
<br />arising directly or indirectly in any manner in connection with or as a result of(a) any breach of Borrower’s
<br />covenants under the Loan Documents, (b) any failure of Borrower’s representations and warranties to be true
<br />and correct in all material respects when made, (c) injury or death to persons or damage to property or other
<br />loss occurring on the Property, whether caused by the negligence or any other act or omission of Borrower
<br />or any other person or by negligent, faulty, inadequate or defective design, building, construction or
<br />maintenance or any other condition or otherwise, or (d)any claim, demand or cause of action, or any action
<br />or other proceeding, whether meritorious or not, brought or asserted against any Indemnitee which relates to
<br />or arises out of the Property, the Improvements, the City Loan, the Loan Documents, or any transaction
<br />contemplated thereby, or any failure of Borrower to comply with all applicable state, federal and local laws
<br />and regulations, including without limitation, applicable provisions of the California Building Standards Code,
<br />the Prevailing Wage Laws, and the Americans with Disabilities Act in connection with the construction or
<br />operation of the Improvements, provided that no Indemnitee shall be entitled to indemnification under this
<br />Section for matters caused by such Indemnitee's gross negligence orwillfulmisconduct. The obligations of
<br />Borrower under this Section shall survive the expiration or termination of this Agreement and the making and
<br />repayment of the City Loan.
<br />3.6OBLIGATION TO REFRAIN FROM DISCRIMINATION.Borrower shall not restrict the
<br />rental, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion
<br />thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability, marital status, ancestry,
<br />or national origin of any person. Borrower covenants for itself and all persons claiming under or through it,
<br />and this Agreement is made and accepted upon and subject to the condition that there shall be no
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<br />3239132.3 City Loan Agreement
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