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thereon from the date incurred at the rate of ten percent (10%) per annum, or at the
<br />maximum legal rate, whichever is greater.
<br />D. City may refuse to take the Project forward for consideration of discretionary
<br />actions unless and until all fees are paid. If any amounts remain owing to City pursuant
<br />to this Agreement for Services actually performed prior to termination of this Agreement,
<br />City may withhold consideration of discretionary actions, permits and/or certificates of
<br />occupancy until all such amounts are paid.
<br />10. Indemnification. Developer further agrees that to the fullest extent permitted
<br />by law, the Developer shall defend, indemnify, protect, and hold harmless, the City of
<br />Santa Ana and its constituent public agency members, officers, employees, volunteers,
<br />attorneys, consultants and agents (in the aggregate, the "City Indemnitees") from any and
<br />all liability, demand, claim, action, or proceeding, whether actual, alleged, or threatened,
<br />including by way of example but not exclusion, proceedings of an administrative or
<br />regulatory nature and proceedings that may be associated with alternative dispute
<br />resolution (an "Indemnified Claim") brought by third parties against any City Indemnities
<br />(including any advisory agency of the City), to attack, set aside, void, annul, or challenge
<br />the validity of any approvals granted for the Project, the Environmental Document
<br />concerning the Project, or seeking damages which may arise from the Environmental
<br />Document concerning the Project, or this Agreement.
<br />In any defense of any City Indemnitees, City shall have the absolute right to
<br />approve the legal counsel for such City Indemnitees (with the intention of using one law
<br />firm to defend all City Indemnitees and Developer unless conflicts of interest preclude
<br />such joint representation), and any experts or consultants deemed necessary by City,
<br />which approval shall not be unreasonably withheld or delayed. in an exercise of City's
<br />sole discretion. City shall work cooperatively with Developer's attorney to avoid
<br />duplication of efforts. Developer shall reimburse City for one hundred percent (100%) of
<br />the City's actual fees and costs in connection with the Litigation ("Fees and Costs"). Such
<br />Fees and Costs shall include, but not be limited to, all reasonable court costs and
<br />attorneys' fees, including other City staff time, consultants or experts, spent in regard to
<br />defense of an Indemnified Claim.
<br />City shall render notice to the Developer of the existence of the Indemnified Claim
<br />(a "Notice") and Developer shall reimburse City for one hundred percent (100%) of the
<br />City's actual Fees and Costs. City shall cooperate fully with Developer in the defense of
<br />any Indemnified Claim. In any Notice, City shall estimate the cost of its defense, which
<br />shall include, but not be limited to, actual attorney fees, court costs, expert witnesses and
<br />consultant fees, and all other costs that may arise out of, or be incurred by City in the
<br />defense of an Indemnified Claim. Upon such Notice, assuming City and Developer have
<br />separate counsel, Developer shall promptly deposit funds equal to the first three (3)
<br />months of the Estimated Fees and Costs with the City and shall make additional deposits
<br />as and when required to fund the further costs of defending the City Indemnitees for such
<br />Indemnified Claim. Failure of Developer to deposit such funds shall be deemed a material
<br />breach of this Agreement. City shall refund, without interest, any unused portion of the
<br />deposits once litigation is finally concluded or a dispute is resolved regarding an
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