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8.A. - Page 64
<br /> number, use or occupancy of purchasers, tenants, lessees, sub - tenants, sub - lessees or vendees of
<br /> the Site. The covenant of this Section 4.8 shall be a covenant running with the land and binding
<br /> on successive owners of all or any portion of the Site in perpetuity.
<br /> ARTICLE 5. INDEMNITY; INSURANCE.
<br /> 5.1 Indemnity.
<br /> (a) To the fullest extent permitted by law, Developer shall fully indemnify,
<br /> defend (at Developer's sole cost and expense and with legal counsel selected and approved by
<br /> City, in City's sole discretion), protect and hold harmless City, its elected officials, directors,
<br /> board members, officers, employees, contractors, volunteers, agents and attorneys (collectively,
<br /> "City Indemnitees ") from and against any and all actual claims, demands, obligations, acts,
<br /> causes of action, damages, costs, expenses, losses, judgments, fines, penalties and liabilities, in
<br /> law or in equity, to person or property, of every kind or nature whatsoever claimed, made or
<br /> suffered by any person or entity relating to this Agreement, City's review, evaluation and
<br /> approval of the Project, construction of the Project, or operations of Developer, or its employees,
<br /> agents, contractors or representatives ( "Third Party Project-Related Challenge "), except insofar
<br /> as such Third Party Project - Related Challenge is the result of gross negligence or willful
<br /> misconduct of any City Indemnitee. Developer further agrees that City may use its own legal
<br /> staff or outside counsel in connection with defense of any Third -Party Project - Related
<br /> Challenge, at the City Attorney's sole discretion, and City shall have the right to select outside
<br /> counsel of its choice, in its sole discretion. All reasonable costs to City associated with its
<br /> defense of any Third Party Project - Related Challenge, including but not limited to the time and
<br /> expenses of the City Attorney's Office, other City staff, any Consultants or experts retained in
<br /> connection with the Third Party Project - Related Challenge, attorney's fees of City's selected
<br /> outside counsel, and litigation costs shall be fully reimbursed to City by Developer. City will
<br /> provide Developer with monthly invoices for all such costs in the case of a Third Party Project-
<br /> Related Challenge. Developer shall make payment to City for any costs covered by this section
<br /> within thirty (30) days of receipt of an invoice from City for such costs.
<br /> (b) Developer's waivers with regard to City as well as its commitments to the
<br /> defense and indemnification of City set forth herein shall remain in full force and effect
<br /> throughout all stages of any lawsuit, claim, or proceeding.
<br /> (c) In the event of any Third Party Proj ect- Related Challenge, the Parties shall
<br /> cooperate in defending against such challenge. Each party shall promptly notify the other of any
<br /> such challenges. Developer shall assist and cooperate at its expense with City in connection with
<br /> any such challenges.
<br /> (d) In any action at law or equity or other legal or administrative proceeding
<br /> arising out of or relating to this Agreement, or Developer's proposal to develop the Project, or
<br /> City's review, evaluation, consideration, proceeding or disposition of Developer's proposal to
<br /> develop the Project, neither City nor Developer shall be entitled to damages or other remedies or
<br /> relief except as expressly set forth in this Agreement. Permitted remedies shall include
<br /> mandatory or injunctive relief, writ of mandate, specific performance or termination of this
<br /> 82483.00019\9644366. 13
<br /> ATTY /AGR /2015.146 /HAMILTON - WINSLOW DDA
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