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assigned, or transferred to persons for development by them in accordance with the provisions of this Agreement. Upon assignment or transfer of the rights of Owner under this Agreement, the obligations of Owner and the transferee or assignee shall be joint and several. Individual condominium unit buyers shall not have any liability or obligation pursuant to that Agreement. 4.3 Amendment or Cancellation of Agreement. This Agreement may be amended from time to time or cancelled by the mutual consent of the parties, but only in the same manner as its adoption by an ordinance as set forth in Government Code Section 65868. The term "Agreement" or "Development Agreement" as used herein shall include any amendment properly approved and executed. 4.4 Enforcement. Notwithstanding Government Code Section 65865.4, this Agreement is enforceable by any party to the Agreement in any manner provided by law. The remedies provided in Section 7.4 of this Agreement shall not include, and City shall not be liable for, any action in damages or any costs or attorney's fees resulting from any dispute, controversy, action or inaction, or any legal proceeding arising out of this Agreement. 4.5 Hold Harmless. Owner agrees to and shall indemnify, defend (through its own counsel) and hold City, its officers, agents, employees, consultants, and representatives harmless from liability for damages, attorneys fees, restitution, judicial or (to the extent legally possible) equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from construction activities with respect to the Project by the Owner or their contractors, subcontractors, agents, employees, or other persons acting on their behalf. Owner further agrees to indemnify, defend (through its own counsel) and hold City, its officers, agents, employees, consultants, and representatives harmless from any Litigation, as hereinafter defined. For purposes of this paragraph, "Litigation" shall mean shall mean any lawsuit, action or cross-action, challenging the validity of this transaction, the Project as defined in Section 2.7, or any portion thereof or the rights of either party hereunder and/or the rights of either party to engage in the acts and transactions contemplated by this Agreement. Notwithstanding any other provision of this Agreement, this indemnity and duty to defend shall be limited as follows: (1) Owner shall have no responsibility to defend the City under this section for any aspect of Litigation challenging Amendment Application 2007-01, General Plan Amendment No. 2007-01, and/or Zoning Ordinance Amendment No. 2007-01 (the "Overlay"). (2) In the event the Litigation results in a judgment and/or award of damages and/or attorneys fees related to the Overlay but in no way related to the application of the Overlay to the Property, Owner shall have no responsibility to indemnifY the City therefor. (3) In the event of any Litigation the parties hereby agree to affirmatively cooperate in defending said action. (4) Owner shall have approval of any settlement if, (i) it will affect Owner's project, or (ii) Owner will be required to pay (or reimburse) any amounts Ordinance No. NS-2741 Page 9 of 28 - 5-