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liabilities of owner under this Agreement. If the Property is subdivided, any subdivided
<br />parcel may be sold, mortgaged, hypothecated, assigned, or transferred to an Assignee
<br />for development in accordance with this Agreement. Upon an Assignment, the
<br />obligations of Owner and the Assignee shall be joint and several.
<br />4.5. Amendment or Cancellation of Agreement. This Agreement may be amended from time
<br />to time or cancelled by the mutual consent of the Parties, as provided by Government Code
<br />Section 65868.
<br />4.6. Enforcement. Notwithstanding Government Code Section 65865.4, this Agreement is
<br />enforceable by either of the Parties, subject to the provisions of Section 7 below.
<br />4.7. Hold Harmless. Owner agrees to and shall hold City, its officers, agents, employees,
<br />consultants, special counsel, and representatives harmless from liability for construction-
<br />related activities arising from the Project, including claims for personal injury and property
<br />damage, which may arise from the direct or indirect operations of Owner or its contractors,
<br />subcontractors, agents, employees, or other persons acting on their behalf with respect to
<br />the Project (collectively, "Claims"). Owner agrees to pay all costs for the defense of the City
<br />and its officers, agents, employees, consultants, special counsel, and representatives
<br />against any such Claims. This hold harmless agreement shall not apply to Claims, or
<br />portions of Claims, arising from the negligent or intentional acts of the City and its officers,
<br />agents, employees, consultants, special counsel, and representatives. Owner further agrees
<br />to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and
<br />costs for special counsel to be selected by the City and agreeable to Owner, regarding any
<br />action by a third party challenging the validity of this Agreement or of any of the Existing
<br />Approvals. City may make all reasonable decisions with respect to its representation in any
<br />legal proceeding, provided that Owner shall have no liability for the payment of any
<br />settlement amount to which Owner has not agreed.
<br />4.8. Binding Effect of Agreement. Subject to Section 4.4 above, the burdens of this Agreement
<br />bind, and the benefits of the Agreement inure to, the Parties' successors in interest.
<br />4.9. Relationship of the Parties. The contractual relationship between City and Owner arising
<br />out of this Agreement is one of independent contractor and not agency. This Agreement
<br />does not create any third party beneficiary rights.
<br />4.10. Notices. Any notice, tender, demand, delivery, or other communication required by this
<br />Agreement shall be in writing (collectively, "Notices"). Notices shall be deemed to be
<br />properly given if delivered in person or mailed by first class or certified mail, postage prepaid,
<br />or sent by telefacsimile or other telegraphic communication in the manner provided in this
<br />Section. To be effective, Notices must be sent to the following persons:
<br />a. If to City, to:
<br />City Manager
<br />City of Santa Ana
<br />20 Civic Center Plaza M-31
<br />P.O. Box 1988
<br />Santa Ana, California 92702
<br />Telefacsimile (714) 647-6954
<br />70020313.7
<br />6/24/04
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