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lawsuit, action or cross-action, challenging the validity of this transaction, <br />the Project as defined in Section 2-.72 9, 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 Restated <br />Development Agreement. Notwithstanding any other provision of this <br />First Amended and Restated Deve oament Agreement, this indemnity <br />and duty to defend shall be limited as follows: <br />U (4)-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 />(,q) (3)-In the event of any Litigation the parties hereby--agree to <br />affirmatively cooperate in defending said action. <br />W1 (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 sostcost . <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) (5)--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 Fitt Amendf ed and Restated Develoamen <br />Agreement. To the extent not otherwise provided in Section 4.2 of this <br />First Amended and Restated Develoamen Agreement, the burdens of <br />thethis First Amended and Restated Dove lop ent Agreement bind, <br />659020.67612142 379?a54388.2v2S. _10- <br />75A-66