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<br />effective date thereof. For purposes hereof, the capitalized terms used herein shall be defined as
<br />follows:
<br />
<br />(i) "Permitted Transfer" shall mean Transfer (defined below) of the
<br />Property or direct or indirect interests in Owner if, following the transfer (a) the Property remains
<br />under the Legal Control (defined below) of Robert F. Emery, or, upon the death of Robert F.
<br />Emery, his heirs or devisees, or (b) foreclosure pursuant to the provisions of section 8.5 of this
<br />Agreement.
<br />
<br />(ii) "Legal Control" shall mean the power or authority, directly or
<br />indirectly through one or more intermediaries, through the ownership of voting securities, by
<br />contract or otherwise, to direct the management, activities or policies of such person or entity.
<br />
<br />(iii) "Transfer" shall mean any change in the direct or indirect
<br />members, partners, shareholders or principals in the ownership of an entity or other ownership
<br />components of such entity.
<br />4.5 Amendment or Cancellation of Agreement. This Agreement may be
<br />amended from time to time or cancelled by the mutual consent of the parties, but only in the
<br />same manner as its adoption by an ordinance as set forth in Government Code Section 65868;
<br />provided, however, that as specified in section 5.5.1 of this Agreement the Executive Director
<br />may approve one or more minor changes in the Project only to the extent that such changes are
<br />not required by State law or the City Municipal Code to be decided by the Zoning Administrator,
<br />Planning Commission (or other City Commission) or City Council. The term "Agreement" or
<br />"Development Agreement" as used herein shall include any amendment properly approved and
<br />executed.
<br />
<br />4.6 Enforcement. Notwithstanding Government Code Section 65865.4, this
<br />Agreement is enforceable by any party to the Agreement in any manner provided by law. The
<br />remedies provided in Section 8.4 of this Agreement shall not include, and City shall not be liable
<br />for, any action in damages or any costs or attorney's fees resulting from any dispute, controversy,
<br />action or inaction, or any legal proceeding arising out of this Agreement.
<br />
<br />4.7 Hold Harmless. Property Owner agrees to and shall hold the City, its
<br />officers, agents, employees, consultants, special counsel, and representatives harmless from
<br />liability: (1) for damages, just compensation, restitution, judicial or equitable relief arising out of
<br />claims for personal injury, including health, and claims for property damage, which may arise
<br />from the direct or indirect operations of the Property Owner or its contractors, subcontractors,
<br />agents, employees, or other persons acting on its behalf which relates to the Project; and (2)
<br />from any claim that damages, just compensation, restitution, judicial or equitable relief is due by
<br />reason of the terms of or effects arising from this Agreement, other than a breach by the City of
<br />its obligations hereunder. Property Owner agrees to pay all costs for the defense of the City and
<br />its officers, agents, employees, consultants, special counsel, and representatives regarding any
<br />action for damages, just compensation, restitution, judicial or equitable relief caused or alleged to
<br />have been caused by reason of Property Owner's actions in connection with the Project, any third
<br />party claims arising out of this Agreement, or any approval or certification by the City relating to
<br />the Project. This hold harmless Agreement applies to all claims for damages, just compensation,
<br />restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of theD
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