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Project, or seeking damages which may arise from any approvals granted for the Project, the Environmental Document concerning the Project, or this Agreement, other than liabilities, demands, claims, actions or proceedings caused by the negligence or willful misconduct of the City or any City Indemnitee. In any defense of any City Indemnitees, City shall have the absolute right to unilaterally select the legal counsel for such City Indemnitees (with the intention of using one law firm to defend all City Indemnitees unless conflicts of interest preclude such joint representation), and any experts or consultants deemed necessary by City in an exercise of City's sole discretion. Developer shall reimburse City for one hundred percent (100%) of the City's actual fees and costs in connection with the Litigation ("Fees and Costs"). Such Fees and Costs shall include, but not be limited to, all reasonable court costs and attorneys' fees, including other City staff time, consultants or experts, spent in regard to defense of an Indemnified Claim. City shall promptly render notice to the Developer of the existence of the Indemnified Claim (a "Notice") and Developer shall defend the City Indemnitees at Developer's expense. City shall cooperate fully with Developer in the defense of any Indemnified Claim. In any Notice, City shall estimate the cost of its defense, which shall include, but not be limited to, actual attorney fees, court costs, expert witnesses and consultant fees, and all other costs that may arise out of, or be incurred by City in the defense of an Indemnified Claim. Upon such Notice, Developer shall promptly deposit funds equal to the first three (3) months of the Estimated Cost with the City and shall make additional deposits as and when required to fund the further costs of defending the City Indemnitees for such Indemnified Claim. Failure of Developer to deposit such funds shall be deemed a material breach of this Agreement. City shall refund, without interest, any unused portion of the deposits once litigation is finally concluded or a dispute is resolved regarding an Indemnified Claim. Any fees or costs incurred by the Developer pursuant to this indemnification section shall not count toward the "Cost Cap" or be subject to any maximum or cap whatsoever. 11. Compliance with Law. Developer will, at its sole cost and expense, comply with all of the requirements of all federal, state, and local laws now in force, or which may hereafter be in force, pertaining to this Agreement. 12. Waiver of Breach. Any express or implied waiver of a breach of any term of this Agreement will not constitute a waiver of any further breach of the same or any other term of this Agreement. 13. Notices. Except as otherwise expressly provided by law, all notices or other communications required or permitted by this Agreement or by law to be served on or given to either party to this Agreement by the other party shall be in writing and will be deemed received on: (i) the day of delivery if delivered by hand, e-mail (with confirmation of receiving party) and fax (both email and fax required for notices delivered by email or fax), or overnight courier service, during regular business hours; or (ii) on the third business day following deposit, with postage prepaid, in the United States Postal Service 3651962803 7