Reso13 PC 13-14 2879 Planning Commission Recommending Approval of DDA for 950 Middlefield Road

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City Draft b128/13 amission or abuse of discretion by t1�e City is deterrnined to have occw�red. If a third-party files a legal action regarding the City's approval of tl�is Agreement or the pursuit of the acti�ities contemplated by this Agreement, the City may ternunate this Agreement on thirty {30) days advance written Notice to the Developer of the City's intent to terminate this Agreement, referencing this Section 8.3, without any fiuther obligation to perfortn the terms of this Agreement and without any liability to the Developer ox any other Person resulting from such termination, uniess the Developer unconditionally agrees in writing to indemnify and defend the City, with legal counsel acceptable to the City, against such tl�ird-party legal action, witkun thirty {30} calendar days following the date of the City's Nodce of intent to ternunate this Agreement, including without limitatian paying alI Legal Costs, monetary awards, sanctions, attorney fee awards, expert witness and consulting fees, and the expenses of any and a11 financial or performance obligations resulting from the disposition of the legal action. Any such written defense and indemn.ity agreement between the City and the Developer must be in a separate writing and reasonably acceptable to the City in both form and substance. Nothing contained in tI�is Section 8.3 shall be deemed ar construed to be an express or implied admission that tlze City may be liable to the Developer or any other Person for damages ar other relief alleged regarding any alleged or establishEd faiture of the City to comply with any Law. If the City and the Developer have not entered into a written defense and indemnity agreement, pursuant to this Section 83, within thirty (30) calend.ar days following the date of the City's notice of intent to terminate this Agreement, then this Agreement shall ternlinate, withaut further Notice or action by either Party, on the fortieth (40�') day following the date of the City's notice of intent to terminate this Agreement. 8.4 City Manager Implementation. The City sha11 implement this Agreement through its City Manager. The City Manager is hereby authorized by the City to issue approvals, interpretations, waivers and enter into certain aznendments to this Agreement on behalf of the City, to the extent that any such action(s) do�s/do not materially or substantially change the Project or cause the City to incur any obligation exceeding Sixty Thousand Dol�ars ($60,000). All other actions shall require the consideration and appmval of the City governing body. Nothing in�is Section $.4 shall restrict the submission.ta the City governing body o�any matter within the City Manager's authority under this Section 8.4, in the City Manager's sole and absolute discretion, to obtain the City governing body's express and specific autharization on such matter. The specific intent of this Section 8.4 is to �.uthorize certain actions on behalf of the Ciry by the City Manager, but not to require that such actions be taken by the City Manager, without further consideratian by the City governing body. 8.5 Notices,Demands and Communicatians Between the Parties. 8.5.1 Notices. Any and alI No�ices subrnitted by either Parry to the other Party pursuant to ar as required by this Agreement shall be proper, if in writing and transmitted to the principal office of the City or the Developer, as applicable, set forth in Section 8.5.2, by one or more of the following methods: (i) rnessenger for imnnediate personal delivery, (ii) a nationally recogruzed overnight (one-night} delivery service (i.e., Fed.eral Express, United Parcel Service, etc.) or (iii) registered or certified United States Mail, postage prepaid, return receipt requested. Such Notices may be sent in the same manner to such other addresses as either Party may designate from time to time, by Notice. Any Notice shall be deerned to be received by the addressee, regardless of whether ar when any return receipt is received by the sender or the date 82483.OD�0917571312.10 57