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7.3.B. - Page 28 <br /> negligence of the Developer or its officers, agents, employees and contractors. The obligation of <br /> the Developer under this Section 404 shall be limited to actual out -of- pocket expenses suffered <br /> or incurred by the City and shall not include any consequential damages or damages for lost <br /> profits. Notwithstanding anything to the contrary in this Agreement, the Developer shall not be <br /> required to indemnify the City for the willful misconduct or gross negligence of the City or its <br /> officers, agents and employees. Nothing in this Section 404 shall be construed to limit <br /> Developer's unconditional acceptance of the condition of the City Property, pursuant to the <br /> provisions of Section 211 of this Agreement. <br /> The indemnity and defense obligations under this Agreement shall survive the <br /> expiration or earlier termination of this Agreement, until all claims against any of the <br /> indemnitees involving any of the indemnified matters are full, finally, absolutely and completely <br /> barred by applicable statutes of limitations. <br /> 405. [Intentionally omittedl <br /> 406. Remedies and Rights of Termination Prior to Conveyance of the City <br /> Property to the Developer <br /> 406.1 Termination by the Developer <br /> In the event that prior to conveyance of title to the City Property to the <br /> Developer: <br /> a. The City, despite good faith efforts, is unable to obtain a SamTrans <br /> Quitclaim, or is unable to remove a disapproved title condition, as <br /> set forth in Section 205, and therefore is unable to convey the City <br /> Property to the Developer in the condition required by this <br /> Agreement; or <br /> b. The Developer, despite good faith efforts, is unable to acquire fee <br /> title to the Developer Property; or <br /> c. The Developer, despite good faith efforts, is unable to obtain the <br /> Project Approvals by October 31, 2014; or <br /> d. The Developer determines the physical condition of the City <br /> Property is in material respects unsuitable for the uses to which the <br /> City Property will be put; or <br /> e. All conditions precedent to the Developer's obligation to <br /> consummate the purchase of the City Property under this <br /> Agreement have not been satisfied or waived by the Developer, <br /> pursuant to Section 203.1; or <br /> ATTY /AGR /2014.197/RDW GREYSTAR PDA <br /> REV: 10 -01 -14 PT & VR <br /> 82483.00017\9102745.13 17 <br />