CITY COUNCIL REGULAR MEETING AGENDA PACKET 9-1-26

18 any applicable State Labor Code requirements and implementing regulations of the Department of Industrial Relations pertaining to "public works" (collectively, "Prevailing Wage Laws") during construction of the Project, including all Claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code sections 1726 and 1781. Developer's obligations under this Section 6.2 shall survive the expiration or earlier termination of this Agreement. Section 6.3 Cooperation. City and Developer shall cooperate in the defense of any court action or proceeding instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, or the Project Approvals ("Litigation Challenge"), and the Parties shall keep each other informed of all developments relating to such defense, subject only to confidentiality requirements that may prevent the communication of such information. To the extent Developer desires to contest or defend such Litigation Challenge, (a) Developer shall take the lead role defending such Litigation Challenge and may, in its sole discretion, elect to be represented by the legal counsel of its choice, with the costs of such representation, including Developer's administrative, legal and court costs, paid by Developer; (b) City may, in its sole discretion, elect to be separately represented by the legal counsel of its choice in any such action or proceeding with the costs of such representation, including City's administrative, legal, and court costs and City Attorney oversight expenses, paid by City; and (c) Developer shall indemnify, defend, and hold harmless City Parties from and against any damages, attorneys' fees or cost awards, including attorneys' fees awarded under Code of Civil Procedure section 1021.5, assessed or awarded against City by way of judgment, settlement, or stipulation. Any proposed settlement of a Litigation Challenge shall be subject to Developer's and City's approval not to be unreasonably withheld, conditioned or delayed. If the terms of the proposed settlement would constitute an amendment or modification of this Agreement or any Project Approvals, the settlement shall not become effective unless such amendment or modification is approved by Developer and City in accordance with Applicable Law, and City reserves its full legislative discretion with respect to any such City approval. If Developer opts not to contest or defend such Litigation Challenge, City shall have no obligation to do so. Developer's obligations under this Section 6.3. shall survive the expiration or earlier termination of this Agreement. The obligations of City and Developer pursuant to this Section 6.3 shall be suspended as provided as set forth above in the event the Project Approvals are challenged by a referendum petition, or in the event Ordinance _____ adopting this Agreement is challenged by a referendum petition. ARTICLE 7 Miscellaneous Section 7.1 Amendments. The Agreement may be amended in writing by the Parties, by mutual agreement, consistent with the procedures set forth in the Development Agreement Statute, as it is amended from time to time. Section 7.2 No Damages Relief. The Parties acknowledge that neither Party would have entered into this Agreement if it were exposed to damages claims by the other Party for any breach of this Agreement. The Parties agree and recognize that, as a practical matter, it may not be possible to determine an amount of monetary damages which would adequately compensate Developer for its investment of time and financial resources in planning to arrive at the kind, location, intensity of use, and improvements for the Project, nor to calculate the consideration City would require to enter into this Agreement to justify the exposure. As such, the Parties agree that in no event shall either Party be entitled to recover damages against the other Party for breach of this Agreement. To the extent permitted by law, specific enforcement Page 175 of 344