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Section 5.6 Indemnification of City. (1) The Developer releases from and covenants and agrees that the City, its governing body members, officers, agents, including the consultants and legal counsel, servants and employees thereof (hereinafter, for purposes of this Section, collectively the "Indemnified Parties ") shall not be liable for any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Project, provided that the foregoing release shall not be effective for any actions of the Indemnified Parties that are not contemplated by this Agreement. (2) The Developer agrees to protect and defend the Indemnified Parties, now and forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit, action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising from the actions or inactions of the Developer (or if other persons acting on its behalf or under its direction or control) under this Agreement, or the transactions contemplated hereby, including but not limited to actions or inactions of the Developer arising out of, incidental to or in connection with the acquisition, construction, installation, ownership, and operation of or defect in the Project whether or not due to the negligence of the Developer or any contractor or its or their employees, servants or agents; provided, that this indemnification shall not apply to the warranties made or obligations undertaken by the City in this Agreement or to any actions undertaken by the City which are not contemplated by this Agreement. (3) (a) the City must give the Developer prompt notice of any claim that could give rise to a claim for indemnity; (b) the City agrees to cooperate with the Developer in the defense of any claim for which indemnity is provided; (c) the Developer is to be permitted to defend the claim, including hiring counsel of the Developer's choice; (d) the Developer is to have the sole right to settle any indemnified claim provided that the Developer obtains a complete release for the Indemnified Parties. (4) All covenants, stipulations, promises, agreements and obligations of the City contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the City and not of any governing body member, officer, agent, servant or employee of the City, as the case may be. Section 5.7 Developer's Options in City Default. If (i) the Developer is in compliance with all material terms of this Agreement and no Event of Default has occurred, and (ii) the City fails to comply with any material term of this Agreement, and (iii) after written notice by the Developer of such failure, the City has failed to cure such noncompliance within sixty (60) days of receipt of such notice, or, if such noncompliance cannot reasonably be cured by the City within sixty (60) days, of receipt of such notice, the City has not provided assurances, reasonably satisfactory to the Developer, that such noncompliance will be cured as soon as reasonably possible, the Developer may: (1) Seek specific performance of the City's obligations hereunder; or 2139197v6 Doc# 2561638 \9 20