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Amended and Restated Development Agreement, this indemnity and duty <br />to defend shall be limited as follows: <br />(a) 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 />(b) 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 />(c) In the event of any Litigation the parties agree to affirmatively <br />cooperate in defending said action. <br />(d) 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 costs). <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 />(ii) 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 />(e) Owner shall be allowed to terminate its defense if it determines to <br />abandon defense of its project application; provided, however, that <br />in such circumstance Owner shall be solely liable for award, if any, <br />of costs or attorneys' fees to plaintiff /petitioner incurred prior to the <br />effective date of termination. <br />4.6 Binding Effect of First Amended and Restated Development <br />Agreement. To the extent not otherwise provided in Section 4.2 of this <br />First Amended and Restated Development Agreement, the burdens of this <br />First Amended and Restated Development Agreement bind, and the <br />benefits of the First Amended and Restated Development Agreement <br />inure, to the parties successors in interest. <br />4.7 Relationship of the Parties. The contractual relationship between City <br />and Owner arising out of this First Amended and Restated Development <br />Agreement is one of independent contractor and not agency. This First <br />067619 \5448832x5 9 <br />