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REV: 02-18-2022 SK
<br />120695-00000325/5690848.4
<br />Page 7 of 9
<br />Section 5.06. Severability. If any term or provision of this Agreement, or the application
<br />of any term or provision of this Agreement to a particular situation, is held by a court of competent
<br />jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this
<br />Agreement, or the application of this Agreement to other situations, shall continue in full force and
<br />effect unless amended or modified by mutual consent of the Parties. Notwithstanding the
<br />foregoing, if any material provision of this Agreement, or the application of such provision to a
<br />particular situation, is held to be invalid, void or unenforceable, either City or Developers may (in
<br />their sole and absolute discretion) terminate this Agreement according to the provisions of Section
<br />5.03.
<br />Section 5.07. Assignment and Transfer. Developers shall not assign or transfer this
<br />Agreement without the prior written consent of the City.
<br />Section 5.08. Indemnification; Cooperation in Event of Challenge; Limitation of
<br />Remedies.
<br />(a) Developer Processing Challenge. A “Developer Processing Challenge” is
<br />any claim, demand, proceeding, application, petition, complaint or action filed, brought or
<br />otherwise commenced by Developer(s) to review, challenge, set aside, modify, overturn, supersede
<br />or annul City’s review, evaluation, consideration, processing, or disposition of or decisions
<br />regarding Developers' proposal to develop the Project or application or a portion thereof and any
<br />combination thereof. Developers acknowledge that all efforts undertaken by City in evaluating
<br />Developers’ proposal to develop the Project may be set aside (in whole or in part), voided,
<br />invalidated, or annulled, and Developers are voluntarily and knowingly proceeding at their sole
<br />risk. As to any such Developer Processing Challenge, Developers and City shall each remain
<br />liable for its respective attorney’s fees and costs of litigation and costs of experts and consultants
<br />retained in any such litigation.
<br />(b) Third Party Project-Related Challenge.
<br />(i) Developers are aware that all efforts undertaken by City in
<br />evaluating Developers’ proposal to develop the Project may be set aside (in whole or in part),
<br />voided, invalidated, or annulled, and Developers are voluntarily and knowingly proceeding at their
<br />sole risk.
<br />(ii) To the fullest extent permitted by law, and in connection with each
<br />applicable portion of the portion of the Project, Developers shall fully indemnify, defend (at
<br />Developers’ sole cost and expense and with legal counsel selected and approved by City, in City’s
<br />sole discretion), protect and hold harmless City, its elected officials, directors, board members,
<br />officers, employees, contractors, volunteers, agents and attorneys from and against any and all
<br />actual claims, demands, obligations, acts, causes of action, damages, costs, expenses, losses,
<br />judgments, fines, penalties and liabilities, in law or in equity, to person or property, of every kind
<br />or nature whatsoever claimed, made or suffered by any person, including, but not limited to, claims
<br />relating to this Agreement, City’s review and evaluation of the Project (“Third Party Project-
<br />Related Challenge”); provided, however, that Developer I shall only be obligated to indemnify
<br />City pursuant to this Agreement for Third Party Project-Related Challenges pertaining to Project
<br />Part I and Developer II shall only be obligated to indemnify City pursuant to this Agreement for
<br />Third Party Project-Related Challenges pertaining to Project Part II. Developers further agree that
<br />City may use its own legal staff or outside counsel in connection with defense of any Third Party
<br />ATTY/AGR.2022.043/IQHQ (ELCO) (Page 7 of 9)
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