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attorney's fees, restitution, judicial or (to the extent legally possible) <br />equitable relief arising out of claims for personal injury, including death, <br />and claims for property damage, which may arise from construction <br />activities with respect to the Project by the Owner or their contractors, <br />subcontractors, agents, employees, or other persons acting on their <br />behalf. Owner further agrees to indemnify, defend (through its own <br />counsel) and hold City, its officers, agents, employees, consultants, and <br />representatives harmless from any Litigation, as hereinafter defined. For <br />purposes of this paragraph, "Litigation" shall mean any lawsuit, action or <br />cross - action, challenging the validity of this transaction, the Project as <br />defined in Section 2.5, or any portion thereof or the rights of either party <br />hereunder and /or the rights of either party to engage in the acts and <br />transactions contemplated by this Development Agreement. <br />Notwithstanding any other provision of this Development Agreement, this <br />indemnity and duty to defend shall be limited as follows: <br />(a) In the event of any Litigation the parties agree to affirmatively <br />cooperate in defending said action. <br />(b) Owner shall have approval of any settlement if, (1) 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 attorney's 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 />(c) 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 attorney's fees to plaintiff /petitioner incurred prior to the <br />effective date of termination. <br />4.6 Binding Effect of Development Agreement. To the extent not otherwise <br />provided in Section 4.2 of this Development Agreement, the burdens of <br />this Development Agreement bind, and the benefits of the Development <br />Agreement 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 Development Agreement is one of <br />independent contractor and not agency. This Development Agreement <br />does not create any third party beneficiary rights. <br />75A =72 <br />