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(ii) To the fullest extent permi[ted by law, Developer shall fully indemnify,
<br /> defend (at Developer's sole cost and expense and with legal counsel selected and approved by
<br /> City, in City's reasonablc discretion), protect and hold harmless the City, its elected officials,
<br /> board members, employees, and attorneys (collectively, thc "City Parties") irom and against any
<br /> and all actual claims, demands, obligations, acts, causes of� action, damages, costs, expenses,
<br /> losses, judgments, tines, penalties and liabili[ies, in law or in equity, to person or property, of
<br /> every kind or nature whatsoever, claimed, made or suffered by any person, including, but not
<br /> limited to, daims relating to this Agreement, the City's review and evaluation of Developer's
<br /> Proposal, or City's sclection of Developer's Proposal (il�such be the case), other than (i) claims
<br /> arising out of an alleged violation of �pplicable law, (ii) claims arising out of the alleged
<br /> negligent acts or omissions by the City Parties, or (iii) claims made by any developer whose
<br /> proposal was not selected by the City as the selected dcveloper proposal for the development of
<br /> Depot Cirde. The claims for which an indemnity is provided pursuant to the preceding sentence
<br /> are herein called "Proposal-Related Challenge." Developer further agrees that City may use its
<br /> own legal staff or outside counsel in connection with defense of any Proposal-Related Challenge,
<br /> at the City Attorney's reasonable discretion, and City shall havc the right to select outside
<br /> counsel of its choice, in its reasonable discretion. All costs to City associated with its defense of
<br /> any Proposal — Related Challen�e, including but not limited to the time and expenses of the City
<br /> Attorney's Office, other City staff, any Consultants or experts retained in connection with such
<br /> Proposal—Related Challenge, attorney's fees of the City's selected outside counsel, and litigation
<br /> costs, shall be fully reimbursed ro City by Developec City will provide Developer with monthly
<br /> invoices for all such costs in the case of a Proposal—Related Challenge asserted by a third party.
<br /> Developer shall make payment to the Ciry tor any costs covered by this section within thirty (30)
<br /> days of receip[ of an invoice from Ciry for such costs.
<br /> (iii) Developer's waivcrs with regard to City as well its commitments to the
<br /> defense and indemnification of City set forth herein shall remain in full iorce and effect
<br /> throughout all stages of any lawsuit, claim, or proceeding.
<br /> (iv) In the event of any proposal/application/project related challenge, by
<br /> another developer or other third party, Ihe Parties shall cooperate in defending against such
<br /> challenge. Each party shall promptly notify the other of any such challenges. Developer shail
<br /> assist and cooperate at City's expense with City in connection with any such challenges.
<br /> (c) Limitation on Remedies. In any action at law or equity or other legal or
<br /> administrative proceeding arising out of or relating to this Agreement, or Developer's Proposal,
<br /> or City's review, evaluation, consideration, proceeding or disposition of Developer's Proposai,
<br /> including but not limited to any Proposal-Related Challenge or any other challenge, neither City
<br /> or Developer shall be entitled to damages or other remedies or relief except as expressly set forth
<br /> in this Agreement. Permitred remedies shall include mandatory or injunctive relief, writ of
<br /> mandate, specific performance or termination of this Agreement, or a claim for reimbursement of
<br /> unexpended funds and advanced by Developer to City. Without limiting the generality of the
<br /> foregoing, neither City nor Devcloper shall be liable under any circumstances for any direct,
<br /> indirect, special, compensatory, consequential, punitive or exemplary damages, regardless of
<br /> whether the claim for damages is based on contract, tort, statute or other basis of liability.
<br /> 301692551.? ]
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