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(a) Developer Processing Challenge. A "Developer Processing Challenge" is any
<br /> claim, demand, proceeding, application, petition, complaint or action filed, brought or otherwise
<br /> commenced by Developer to review, challenge, set aside, modify, overturn, supersede or annul City's
<br /> review, evaluation, consideration, processing, or disposition of or decisions regarding Developer's
<br /> proposal to develop the Winslow Project or application or a portion thereof and any combination thereof.
<br /> Developer acknowledges that all efforts undertaken by City in evaluating Developer's proposal to develop
<br /> the Winslow Project may be set aside (in whole or in part), voided, invalidated, or annulled, and
<br /> Developer is voluntarily and knowingly proceeding at its sole risk. As to any such Developer Processing
<br /> Challenge, Developer and City shall each remain liable far its respective attorney's fees and costs of
<br /> litigation and costs of experts and consultants retained in any such litigation.
<br /> (b) Third Partv Project-Related Challen�e.
<br /> i. Developer is aware that all efforts undertaken by City in evaluating
<br /> Developer's proposal to develop the Winslow Project may be set aside (in whole or in part), voided,
<br /> invalidated, or annulled, and Developer is voluntarily and knowingly proceeding at its sole risk.
<br /> ii. To the fullest extent permitted by law, Developer shall fully indemnify,
<br /> defend (at Developer's sole cost and expense and with legal counsel selected and approved by City, in
<br /> City's reasonable discretion), protect and hold harmless City, its elected officials, board members,
<br /> officers, employees, contractors, agents and attorneys (collectively, the "City Parties") from and against
<br /> any and all actual claims, demands, obligations, acts, causes of action, damages, costs, expenses, losses,
<br /> judgments, fines, penalties and liabilities, in law or in equity, to person or property, of every kind or
<br /> nature whatsoever claimed, made or suffered by any person, including, but not limited to, claims relating
<br /> to this Agreement, City's review and evaluation of the Winslow Project or selection of Developer to
<br /> develop the Winslow Project (if such be the case), other than (i) claims arising out of an alleged violation
<br /> of applicable law, (ii) claims arising out of the alleged negligent acts or omissions of the City Parties, or
<br /> (iii) claims made by any developer who competed to purchase the Winslow parcel ("Third Party Project-
<br /> Related Challenge"). Developer further agrees that City may use its own legal staff or outside counsel in
<br /> connection with defense of any Third Party Project Proposal-Related Challenge, at the City Attorney's
<br /> reasonable discretion, and City shall have the right to select outside counsel of its choice, in its sole
<br /> discretion. All costs to City associated with its defense of any Third Party Project-Related Challenge,
<br /> including but not limited to the time and expenses of the City Attorney's Office, other City staff, any
<br /> Consultants or experts retained in connection with the Third Party Project-Related Challenge, attorney's
<br /> fees of City's selected outside counsel, and litigation costs shall be fully reimbursed to City by Developer.
<br /> City 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 within
<br /> thirty (30) days of receipt of an invoice from City for such costs.
<br /> iii. Developer's waivers with regard to City as well its commitments to the
<br /> defense and indemnification of City set forth herein shall remain in full force and effect throughout all
<br /> stages of any lawsuit, claim, or proceeding.
<br /> iv. In the event of any Third Party Project-Related Challenge, the Parties shall
<br /> cooperate in defending against such challenge. Each party shall promptly notify the other of any such
<br /> challenges. Developer shall assist and cooperate at its expense with City in connection with any such
<br /> challenges.
<br /> ATTY/AGR/2012.093/LOWE DDA REIMBURSEMENT AGREEMENT WINSLOW
<br /> REV: 12-7-12 VR
<br /> Page 7 of 9
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