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8.A. - Page 101
<br /> 3.12.1 To the fullest extent permitted by law, Developer shall fully
<br /> indemnify, defend (at Developer's sole cost and expense and with legal counsel selected and
<br /> approved by City, in City's sole discretion), protect and hold harmless City, its elected officials,
<br /> directors, board members, officers, employees, contractors, volunteers, agents and attorneys
<br /> (collectively "City Indemnitees ") from and against any and all actual claims, demands,
<br /> obligations, acts, causes of action, damages, costs, expenses, losses, judgments, fines, penalties
<br /> and liabilities, in law or in equity ( "Claims "), to person or property, of every kind or nature
<br /> whatsoever claimed, made or suffered by any person or entity, relating to this Agreement, the
<br /> construction or condition of the Hamilton Garage, or operation of the Hamilton Garage by
<br /> Developer, or its employees, agents, contractors or representatives ( "Third Party Challenge "),
<br /> except insofar as such Claims are the result of gross negligence or willful misconduct of any
<br /> City Indemnitee. Developer further agrees that City may use its own legal staff or outside
<br /> counsel in connection with defense of any Third -Party Challenge, at the City Attorney's sole
<br /> discretion, and City shall have the right to select outside counsel of its choice, in its sole
<br /> discretion. All reasonable costs to City associated with its defense of any Third Party Challenge,
<br /> including but not limited to the time and expenses of the City Attorney's Office, other City staff,
<br /> any Consultants or experts retained in connection with the Third Party Challenge, attorney's fees
<br /> of City's selected outside counsel, and litigation costs shall be fully reimbursed to City by
<br /> Developer. City will provide Developer with monthly invoices for all such costs in the case of a
<br /> Third Party Challenge. Developer shall make payment to City for any costs covered by this
<br /> section within thirty (30) days of receipt of an invoice from City for such costs.
<br /> 3.12.2 Developer's waivers with regard to City as well as its commitments to
<br /> the 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 /> 3.12.3 In the event of any Third Party Challenge, the Parties shall cooperate
<br /> in defending against such challenge. Each party shall promptly notify the other of any such
<br /> challenges. Developer shall assist and cooperate at its expense with City in connection with any
<br /> such challenges.
<br /> 3.12.4 In any action at law or equity or other legal or administrative
<br /> proceeding arising out of or relating to this Agreement, or Developer's operation of the Hamilton
<br /> Garage, neither City nor Developer shall be entitled to damages or other remedies or relief
<br /> except as expressly set forth in this Agreement. Permitted remedies shall include mandatory or
<br /> injunctive relief, writ of mandate, specific performance of this Agreement, or a claim for
<br /> reimbursement of unexpended funds and advanced by Developer to City. Without limiting the
<br /> generality of the foregoing, neither City nor Developer shall be liable under any circumstances
<br /> for any direct, indirect, special, compensatory, consequential, punitive or exemplary damages,
<br /> regardless of whether the claim for damages is based on contract, tort, statute or other basis of
<br /> liability.
<br /> 3.12.5 Indemnification Survives Termination. The rights and obligations set
<br /> forth in this Section 3.12 shall survive termination of this Agreement.
<br /> 82483.00019\9644366. 13
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