Agmt10 R.C. Peninsula Park, LLC (2)

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the express right to withhold amounts otherwise payable to Developer under this Acquisition Agreement in such amounts and at such times as are determined appropriate or necessary by the City to satisfy and pay all fees, costs, damages, and costs arising from any breach of this Agreement by Developer or to satisfy any claims or actions commenced by any party including the City. The City shall also have the express right to offset any of its fees, costs, expenses, or damages from any sums otherwise payable to Developer under this Acquisition Agreement. Notwithstanding any other provision of this Section, money damages and interest awarded against the City shall be payable only from available proceeds of the Bonds and only to the extent that City's qualified bond counsel, in his or her reasonable judgment, determines (i) that such use of the bond proceeds would not violate any law, agreement or covenant respecting the use of such proceeds and (ii) that such use of bond proceeds would not cause interest payable on the bonds to loose (in whole or in part) its tax - exempt status under state or federal law. Section 9.05. Force Majeure. Whenever performance is required of a party hereunder, that party shall use all due diligence and take all necessary measures in good faith to perform, but if completion of performance is delayed by reasons of floods, earthquakes, war, terrorism, vandalism, damage to work in progress by casualty, weather, or by other cause beyond the reasonable control of the party (financial inability excepted), then the specified time for performance shall be extended by the amount of the delay actually so caused. Section 9.06. Termination of Indemnification. Notwithstanding any contrary provision of this Agreement, Developer's obligations to indemnify and defend the City and its Council, boards, commissions, directors, officers, employees, and agents, pursuant to Sections 4.03, 4.05, 4.06, 4.07, 7.02, and 8.03 shall terminate with respect to each Facility or Discrete Component thereof on the date which is five (5) years following the City's acceptance of each such Facility or Discrete Component except that (i) said obligations are not terminated with respect to any case in which the sole fault of the Developer or its Contractors is alleged and (ii) the obligation to indemnify the City is not terminated with respect to any liability of the City that is attributed by a court or arbitrator to the Developer. ARTICLE X MISCELLANEOUS Section 10.01. Limited Liability of City. The Developer agrees that any and all obligations of the City arising out of or related to this Acquisition Agreement are special and limited obligations of the City and the City's obligations to make any payments hereunder are restricted entirely to the moneys, if any, in the Improvement Fund and from no other source. No member of the City Council, or City staff member, employee or agent shall incur any liability whatsoever to the Developer or any other party in their individual capacities by reason of their execution hereof or any subsequent action or inaction by all or any of them. Section 10.02. Excess Costs. The Developer agrees to pay all costs of the Facilities that it is obligated to construct pursuant to the Conditions of Approval in excess of the moneys available therefor in the Improvement Fund, except as may otherwise be expressly provided in the Conditions of Approval. -28-