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lawsuit, action or cross- action, challenging the validity of this transaction, <br />the Project as defined in Section 24,2, or any portion thereof or the rights <br />of either party hereunder and /or the rights of either party to engage in the <br />acts and transactions contemplated by this First Amended and Rest to <br />Q2yaWaDM Agreement. Notwithstanding any other provision of this <br />Eimt_Amqndq.dAwdJ1e_ sfaked Develo r e Agreement, this indemnity <br />and duty to defend shall be limited as follows: <br />U (I)-Owner shall have no responsibility to defend the City under this <br />section for any aspect of Litigation challenging Amendment <br />Application 2007 -01, General Plan Amendment No. 2007 -01, and /or <br />Zoning Ordinance Amendment No. 2007 -01 (the "Overlay "), <br />(2) -In the event the Litigation results in a judgment and /or award of <br />damages and /or attorneys'_ fees related to the Overlay but in no <br />way related to the application of the Overlay to the Property, Owner <br />shall have no responsibility to indemnify the City therefor. <br />(3)—In the event of any Litigation the parties hereb"gree to <br />affirmatively cooperate in defending said action. <br />L(U (4) -Owner shall have approval of any settlement if, (i) it will affect <br />Owner's project, or (ii) Owner will be required to pay (or reimburse) <br />any amounts (regardless of type) in connection with the settlement <br />(including attorneys' fees and serf s). <br />(i) If City determines to settle over Owner's objections, then <br />Owner may upon thirty (30) days written notice terminate <br />defense of the action. <br />(11) If City rejects a settlement offer that Owner deems reasonable, <br />then Owner may upon thirty (30) days written notice terminate <br />defense of the action. <br />(_Q <br />("a)-Owner shall be allowed to terminate its defense if it determines <br />to abandon defense of its project application; provided, however, <br />that in such circumstance Owner shall be solely liable for award, if <br />any, of costs or attorneys' fees to plaintiff /petitioner incurred prior to <br />the effective date of termination. <br />4.6 Binding Effect of Fir t___AMOD -d d and Restated �_ Dome o me <br />Agreement. To the extent not otherwise provided in Section 4.2 of this <br />First Amende n -Qsttte— d-DoQ_q M Agreement, the burdens of <br />the First Amended and Restated Oovola Agreement bind, <br />6590206160 VRIPM544883205- _10- <br />75A -66 <br />