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If the defective work is considered by the City Engineer to be an emergency, the City
<br />Engineer may require the Developer to visit the Development within one (1) day of receipt of said
<br />notice. The Developer shall be fully responsible for the cost of temporary materials or equipment
<br />required during the repair or replacement of the defective work.
<br />If the Developer do not promptly repair or replace defective work, the City may repair or
<br />replace such defective work and charge the cost thereof to the Developer or the Developer' surety.
<br />Defective work that is repaired or replaced by the Developer shall be inspected by the City
<br />Engineer. The repaired or replaced work and shall be guaranteed by the Developer pursuant to the
<br />terms of this Section XVIII.
<br />XIX. INDEMNIFICATION
<br />Developer shall, at its cost and expense, defend, indemnify and hold the City and any
<br />officials, employees, agents and representatives of the City, its successors and assigns (collectively
<br />the "Indemnified Parties" and each an "Indemnified Party"), harmless from and against, and shall
<br />reimburse the Indemnified Party for, any and all loss, cost, claim, liability, damage, judgment,
<br />penalty, injunctive relief, expense or action (collectively the "Liabilities" and each a "Liability"),
<br />other than Excluded Liabilities, as defined below, whether or not the Indemnified Party shall also
<br />be indemnified as to any such claim by any other person, the basis of which claim (a) was caused
<br />by or results from the actions or failures to act of Developer or its affiliates, agents, employees,
<br />contractors, subcontractors and material suppliers while in possession or control of the Project,
<br />whether or not such action or inaction was negligent or reckless, or is in any way related to the
<br />construction of the Project or the selection of contractors, subcontractors or material suppliers
<br />relating thereto; (b) is based, in whole or in part upon failure or alleged failure of Developer or its
<br />affiliates to satisfy their obligations under this Agreement or another Project Agreement; (c) relates
<br />to fraud, misapplication of funds, illegal acts, or willful misconduct on the part of Developer or its
<br />affiliates, or (d) relates to the bankruptcy or insolvency of the Developer or its affiliates. The
<br />indemnity provided for herein shall survive the expiration or termination of and shall be separate
<br />and independent from any remedy under any Project Agreement.
<br />"Excluded Liability" means each Liability to the extent it is attributable to the gross
<br />negligence or willful misconduct of any Indemnified Party or the failure of any Indemnified Party
<br />that is a third party beneficiary of this Agreement to perform any obligation required to be
<br />performed by the Indemnified Party as a condition to being indemnified hereunder, including
<br />without limitation, the settlement of any Liability without the consent of the Developer, or, to the
<br />extent the Developer's ability to defend a Liability is prejudiced materially, the failure of an
<br />Indemnified Party to give timely written notice to the Developer of the assertion of a Liability.
<br />Upon notice of the assertion of any Liability, the Indemnified Party shall give prompt
<br />written notice of the same to the Developer. Upon receipt of written notice of the assertion of a
<br />Liability, the Developer shall have the duty to assume, and shall assume, the defense thereof, with
<br />power and authority to litigate, compromise or settle the same; provided that, the Indemnified Party
<br />shall have the right to approve any obligations imposed upon it by compromise or settlement of
<br />any Liability or in which it otherwise has a material interest, which approval may be withheld in
<br />its sole discretion.
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