RecD08 2008-086768 (2) - Laserfiche WebLink

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the City shall not be obligated to issue building permits or other approvals, but shall consider issuance of such approvals in its discretion where the Developer is diligentJy prosecuting cure and where the approval(s) in question would not prejudice the City's ability to compel the Developer to remedy the failure of performance. 5.3 Remedies. Upon the occurrence of an Event of Default, the non-defaulting Party shall have the right, subject to Section 5.2 in addition to all other rights and remedies available at law and equity, to (i) bring any proceeding in the nature of specific perfonnance, injunctive relief or mandamus and/or (ii) bring any action at law or in equity as may be pennitted by law or this Agreement in order to recover all damages necessary to compensate the non-defaulting Party for all the detriment proximately caused by the defaulting Party's failure to perform its agreements, obligations or undertakings hereunder, or otheJWise arising out of the Event of Default, or which in the ordinary. course of things would be likely to result there from. In addition, and subject to Section 5.2 upon the occurrence of an Event of Default, the non-defaulting Party shall have the right to terminate this Agreement, but any such termination shall not affect such Party's right to seek compensatory damages on account of the Event of Default for which this Agreement has been terminated. 5.4 Effect of Tennination: Developer's Ri2hts to DeveloD the Property. In the event of termination of this Agreement as a result of an Event of Default by the City, Developer shall be entitled to all of the benefits arising out of, or entitlements on account of, any exactions paid, given or dedicated to, or received by, City under this Agreement. No termination of this Agreement shall prevent Developer from completing, in accordance with the terms of this Agreement and the Precise Plan, and occupying the buildings or other improvements authorized pursuant to valid building permits previously approved by the City, or under construction at the time of tennination, provided that the buildings or improvements qualify under the Building Code and other City construction codes for a certificate of occupancy. As used herein, "construction" shall mean work under a valid building permit, and "completing" shaIl mean completion for beneficial occupancy for Developer's use. 5.5 Indemnification. If any judicial action or other proceeding (other than a proceeding before the City or a City agency) is filed by a third party or parties challenging the validity of this Agreement, the Precise Plan or any City approval of the Proj ect, including without limitation, the EIR, or the Em.. Addendum, the City may tender to Developer its defense in that action or proceeding, and the Developer shall, provided that the City cooperates in said defense, defend the City and its officers and employees at the Developer's expense (except that the Developer shall not be obligated to pay the costs of City staff time or ordinary office expenses, such as copying, telephone and delivery, incurred by the City in cooperating with such defense), and shall indemnify and hold the City, its officers and employees harmless from financial liability, costs and expenses, including without limitation attorneys' fees, arising as a result of the action or A TTY / AGR/2008.0 13 022708 15