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REV: 05-25-22 JB
<br />otherwise commenced by Developer to review, challenge, set aside, modify, overturn, supersede
<br />or annul City’s review, evaluation, consideration, processing, or disposition of or decisions
<br />regarding Developer’s proposal to develop the Proposed Project or application or a portion thereof
<br />and any combination thereof. Developer acknowledges that all efforts undertaken by City in
<br />evaluating Developer’s proposal to develop the Proposed Project may be set aside (in whole or in
<br />part), voided, invalidated, or annulled, and Developer is voluntarily and knowingly proceeding at
<br />its sole risk. As to any such Developer Processing Challenge, Developer and City shall each
<br />remain liable for its respective attorney’s fees and costs of litigation and costs of experts and
<br />consultants retained in any such litigation.
<br />(b) Third Party Project-Related Challenge.
<br />i. Developer is aware that all efforts undertaken by City in evaluating
<br />Developer’s proposal to develop the Proposed Project may be set aside (in whole or in part),
<br />voided, invalidated, or annulled, and Developer is voluntarily and knowingly proceeding at its sole
<br />risk.
<br />ii. 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 from
<br />and against any and all actual claims, demands, obligations, acts, causes of action, damages, costs,
<br />expenses, losses, judgments, fines, penalties and liabilities, in law or in equity, to person or
<br />property, of every kind or nature whatsoever claimed, made or suffered by any person, including,
<br />but not limited to, claims relating to this Agreement, City’s review and evaluation of the Proposed
<br />Project or selection of Developer to develop the Proposed Project (if such be the case) (“Third
<br />Party Project-Related Challenge”). Developer further agrees that City may use its own legal staff
<br />or outside counsel in connection with defense of any Third Party Project-Related Challenge, at the
<br />City Attorney’s sole discretion, and City shall have the right to select outside counsel of its choice,
<br />in its sole discretion. All costs to City associated with its defense of any Third Party Project-
<br />Related Challenge, including but not limited to the time and expenses of the City Attorney’s
<br />Office, other City staff, any Consultants or experts retained in connection with the Third Party
<br />Project-Related Challenge, attorney’s fees of City’s selected outside counsel, and litigation costs
<br />shall be fully reimbursed to City by Developer. City will provide Developer with monthly invoices
<br />for all such costs in the case of a Third Party Project-Related Challenge. Developer shall make
<br />payment to City for any costs covered by this section within thirty (30) days of receipt of an invoice
<br />from City for such costs.
<br />iii. Developer’s waivers with regard to City as well as its commitments
<br />to 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 />iv. In the event of any Third Party Project-Related Challenge, the
<br />Parties shall cooperate in defending against such challenge. Each party shall promptly notify the
<br />other of any such challenges. Developer shall assist and cooperate at its expense with City in
<br />connection with any such challenges.
<br />(c) 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 Proposed
<br />ATTY/AGR.2022.123/Sand Hill Property Company (1304 Middledfield) (Page 6 of 8)
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