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against any and all claims, liabilities, losses, damages, injuries, penalties, fines, judgments,
<br />awards, decrees, attorneys' fees and related costs or expenses of any kind or nature (each a
<br />"Claim" and collectively, "Claims") arising out of Developer's acts or omissions related to this
<br />Agreement, including without limitation Developer's initial construction of the Distribution
<br />Facilities, as long as the Claim is not the result of willful misconduct or active negligence on the
<br />part of City. City agrees to indemnify, defend, and hold harmless Developer, its officers, agents,
<br />employees, and consultants (including, from and after the date of a transfer and assignment of
<br />Developer's rights and obligations as referred to in Section 11 of this Agreement, the HOA
<br />and/or a successor owner or owners of the Developer's Property), from and against any and all
<br />Claims arising out of City's active negligence related to this Agreement, including without
<br />limitation City's performance of its maintenance, repair, replacement, and inspection obligations
<br />pursuant to Section 4 of this Agreement, as long as the Claim is not the result of willful
<br />misconduct or active negligence on the part of Developer.
<br />9. No Third Parte Beneficiaries. There are no intended third party beneficiaries of
<br />this Agreement.
<br />10. Independent Contractors. Neither Party nor any of its contractors, subcontractors,
<br />members, directors, officers, employees, volunteers, or agents is an agent, partner, joint venturer
<br />or employee of the other Party and each Party's relationship to the other Party arising herefrom is
<br />strictly that of an independent contractor.
<br />11. Transfers and Assignments. It is understood that Developer will be forming the
<br />HOA which will own the common areas within the Developer's Property and the Unit Meters.
<br />Upon (1) the occurrence of the Completion Date (as to the Unit Meters or discrete phase/portion
<br />thereof), (2) Developer's formation of the HOA, and (3) Developer's and/or the HOA's delivery
<br />of written notice to City of the occurrence of the events referred to in clause (1) and (2), all of
<br />Developer's rights and obligations hereunder (with respect to the Unit Meters or discrete
<br />phase/portion thereof) automatically shall be deemed to have been transferred and assigned to
<br />and assumed by the HOA, Developer shall be released from such rights and obligations, and
<br />Developer shall have no further rights or obligations hereunder.
<br />In addition, prior to the assignment of this Agreement to the HOA in accordance
<br />with the preceding paragraph, Developer may assign its rights and obligations under this
<br />Agreement to a successor owner or owners of the Developer's Property and in such event the
<br />assignor and assignee shall so notify City and the assignor shall be released from all obligations
<br />set forth in this Agreement upon the effective date of the assignment. As used herein, the term
<br />"Developer" is intended to refer to the HOA and any subsequent owner of the Developer's
<br />Property at the time such assignment/transfer occurs.
<br />12. Binding Upon Heirs, Successors and Assigns. The terms, covenants, and
<br />conditions get forth in this Agreement shall be binding upon all heirs, successors, and assigns of
<br />the Parties; provided, however, that this Agreement shall not be binding upon a purchaser or
<br />transferee of any portion of the Developer's Property unless this Agreement has been assigned
<br />pursuant to Section 11.
<br />MAINTENANCE AGREEMENT --WATER METERS -5-
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