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REV: 01-17-23 JB
<br />Notwithstanding the foregoing, if any material provision of this Agreement, or the application of
<br />such provision to a particular situation, is held to be invalid, void or unenforceable, either City or
<br />Developer may (in their sole and absolute discretion) terminate this Agreement.
<br />Section 5.07. Assignment and Transfer. Neither Party shall assign or transfer this
<br />Agreement without the prior written consent of the other.
<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 to review, challenge, set aside, modify, overturn, supersede
<br />or annul City’s review, evaluation, consideration, processing, or disposition of or decisions
<br />regarding the Transit District Amendments. Developer acknowledges that all efforts undertaken
<br />by City in evaluating the Transit District Amendments 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. As to any such Developer Processing Challenge, Developer and City shall each remain liable
<br />for its respective attorney’s fees and costs of litigation and costs of experts and consultants retained
<br />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 />the Transit District Amendments may be set aside (in whole or in part), voided, invalidated, or
<br />annulled, and Developer is voluntarily and knowingly proceeding at its sole 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 Transit
<br />District Amendments (if such be the case) (“Third Party Project-Related Challenge”) . Developer
<br />further agrees that City may use its own legal staff or outside counsel in connection with defense
<br />of any Third Party Project-Related Challenge, at the City Attorney’s sole discretion, and City shall
<br />have the right to select outside counsel of its choice, in its sole discretion. All costs to City
<br />associated with its defense of any Third Party Project-Related Challenge, including but not limited
<br />to the time and expenses of the City Attorney’s Office, other City staff, any Consultants or experts
<br />retained in connection with the Third Party Project-Related Challenge, attorney’s fees of City’s
<br />selected outside counsel, and litigation costs shall be fully reimbursed to City by Developer. City
<br />will 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 />ATTY/AGR.2022.391/Joint Powers Board (Transit District Amendments) (Page 5 of 7)
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