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7C <br /> Page 234 <br /> (b) Developer shall defend (with counsel reasonably acceptable to the City), <br /> indemnify, and l�old the City and its officers, officials, employees, volunteers, agents and <br /> representatives harmless from and against any and all present and future liabili.ties, obligations, <br /> orders, claims, damages, fines,penalties and expenses(including reasonable attorneys'fees and <br /> costs} arising aut of or in any way connected with Developer's failure to comply with Prevailing <br /> Wage Laws applicable to the Public Property Improvements, i�z.clud.ing all claims that may be <br /> made by contractors, subcontractors or other third party clainzants pursuant to Labor Code <br /> sections 172G and 1781, except to the extent such any such.claim arises as a result of gross <br /> negii�ence or willful misconduct on the part of City or City's officers, officials, employees, <br /> volunteers, agents or representatives. <br /> ARTICLE 5: DErAULT <br /> 5.1 Developer's Right to Terminate. <br /> The Developer may, in its sole discretion, determine not to proceed with the Project or <br /> remainiilg portions �liereof,provided that Developer's decision not to proceed shall not relieve <br /> Developer of any obligatian previously incurred under this Agreernent, except to the extent <br /> Developer's performa�ice is affected by the City's breach of one or more niaterial provisions of <br /> tllis Agreeinent. <br /> S.2 Events of Default. <br /> Subject to any extensions of time agreed upon by the mutual written consent of Cily and <br /> Developer, and subject to any Enforced Delays as provided in Section 8.4 any failure by eitl�er <br /> Developer or City to perform any material term ar provision of this Agreement shall constitute <br /> an Event of Default and sha11 entitle the nonbreaching party to terminate this Agreement if it so <br /> elects{i)if such defaulting Party does not cure sucl� fail.ure within thirty (30) days following <br /> written notice of default frozn the other Party where such faiIure is of a nature that can he cured <br /> within such thirty(30)day period, or(ii) if such failure is not of a nature that can be cured witllin <br /> such thirty(30)day period, the defaulting Party does not within such thirty(30) day period <br /> commence substantial efforts to cure such failure, or thereafter does not within a reasonable time <br /> prosecute to completion with diligence and co��tinuity the curing of such failure. Any notice of <br /> default given hereunder shall be in writing and shall specify in detail tlie nature of the failure in <br /> perfo�mance which the noticing Party claims constitutes the Event of Default and the rnam�er ii� <br /> which such Evet�t of Default may be satisfactorily cured in accordance with the terms and <br /> conditions of this Agreernent. During the periods herein specified for cure of a failure of <br /> performance: (I) the Party charged therewith shall not be considered to be in default for purposes <br /> of tertl�ination of this Agreement or institution of legal proceed.ings with respect thereto; and(2) <br /> the City shall not be ot�ligated to issue building pennits or other approvals, but shall consider <br /> issuauce of such approvals in its discretion.where the Developer is diligently prosecuting cure <br /> and where the approval(s} in question would not prejudice the City's ability to campel tl�e <br /> Developer to remedy the failure of performan.ce. <br /> 5.3 Remedies. <br /> 1025843-6 13 <br /> DRAFT 12I12/07 3:00 PM <br />