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Council Subcommittee decides the dispute to the satisfaction of Property Owner, the Council
<br /> Subcommittee's decision shall be deemed to have resolved the matter. It is the intention of the
<br /> parties that only the Property Owner shall have a right to carry the dispute to a higher level under
<br /> the procedures described in this Section 5.6.
<br /> 5.7 Applicable Law /Attorneys' Fees.
<br /> (a) This Development Agreement shall be construed and enforced in
<br /> accordance with the laws of the State of California.
<br /> (b) If City or Property Owner brings an action or proceeding (including,
<br /> without limitation, any motion, order to show cause, cross complaint, counterclaim, or third
<br /> party claim) by reason of defaults, breaches, tortious acts, or otherwise arising out of this
<br /> Agreement, the prevailing party in such action or proceeding shall be entitled to its costs and
<br /> expenses of suit including, but not limited to, reasonable attorneys' fees and expert witness fees.
<br /> For purposes hereof, reasonable attorneys' fees shall be based upon the fees regularly charged by
<br /> private attomeys in Santa Clara county notwithstanding a party's use of its own staff attorneys.
<br /> (c) Attorneys' fees under this Section shall include attorneys' fees on any
<br /> appeal and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable
<br /> costs and expenses incurred in connection with such action. In addition to the foregoing award
<br /> of attorneys' fees to the prevailing party, the prevailing party in any lawsuit shall be entitled to
<br /> its attorneys' fees incurred in any post judgment proceedings to collect or enforce the judgment.
<br /> This provision is separate and several and shall survive the merger of this Agreement into any
<br /> judgment on this Agreement.
<br /> 5.8 Release and Indemnity. City hereby agrees to release, indemnify, protect, defend
<br /> and hold Property Owner and its partners, trustees, beneficiaries, officers, directors, employees,
<br /> shareholders, members, agents, affiliates, managers, advisors and other representatives along
<br /> with its transferees, lenders, investors, successors and assigns and their respective partners,
<br /> trustees, beneficiaries, officers, directors, employees, shareholders, members, agents, affiliates,
<br /> managers, advisors and other representatives along with their transferees, lenders, investors,
<br /> successors and assigns (collectively, the "Indemnified Parties harmless from and against any
<br /> and all liabilities, demands, actions, causes of action, suits, claims, losses, damages, obligations,
<br /> judgments, fines, orders, debts, costs and expenses (including, without limitation, reasonable
<br /> attorneys' fees, court costs and litigation expenses) suffered or incurred by any of the
<br /> Indemnified Parties (a) as a result of any and all third party (public and/or private) claims of any
<br /> nature whatsoever, arising directly or indirectly out of City's (including, without limitation,
<br /> activities of any of City's officers, officials, employees, consultants, contractors or other
<br /> representatives) use of the Property for treatment of its sewage, sludge and effluent, including,
<br /> without limitation, claims of personal injury or property damage resulting from radionuclide
<br /> contamination or (b) arising directly or indirectly as a result of the enforcement by an
<br /> Indemnified Party of this release and indemnity. All fees, costs and expenses to be paid by City
<br /> hereunder shall be made on a "paid as incurred" basis within a reasonable time after the City's
<br /> receipt of a statement or invoice therefor. Should City object to any such fees, costs or expenses,
<br /> City shall nevertheless pay such fees, costs and expenses within a reasonable time which
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