RDA Agmt 2004 1040 Davis Partnership LLC

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(a) Except as provided in Section 3.08 of this Part, Developer shall defend, indemnify, and hold harmless the Agency for any claim against the Agency of any nature whatsoever arising out of or in connection with Developer's purported acts or omissions on or about, or Developer's occupancy or use of, the property or Developer's performance ornon-performance under or with respect to this Agreement, except to the extent any such claim arises out of or in connection with the Agency's purported acts or omissions on, about or with respect to the Property or the Agency's performance ornon-performance under or with respect to this Agreement. If any such claim is attributable to an action or omission of Developer's construction contractor, such contractor shall also defend, indemnify and hold harmless the Agency against such claim arising out of or in connection with Developer's construction contractor's purported acts or omissions on or about, or Developer's construction contractor's occupancy or use of, the Property or Developer's construction contractor's performance or non-performance under or with respect to this Agree- ment, except to the extent any such claim arises out of or in connection with the Agency's purported acts or omissions on, about or with respect to the Property or the Agency's performance ornon-performance under or with respect to this Agreement. (b) Upon knowledge of any such claim, the Agency shall notify the Developer and its construction contractor of such claim in writing. Upon receipt of such written notice, Developer, and, if applicable, its construction contractor, shall defend at their own expense any suit based on such claim. Such defense shall include provision of separate and independent counsel for the Agency where such counsel is required by the California Code of Professional Conduct, or by common law conflict of interest principles. The Agency shall have the right to choose such independent counsel. If any judgment or claims against the Agency shall be allowed, the Developer and, if applicable, its construction contractor, shall pay or satisfy such judgment or claim and pay all costs and expenses in connection therewith. (c) The obligations to defend, indemnify and hold harmless the Agency, specified in Sections 3.07(a) and (b) above, shall not apply to any claim against the Agency arising from damage caused by the Agency's act or omission or the tortious conduct of the Agency. (d) Developer, the Agency, and Developer's construction contractor shall have an affirmative duty to cooperate with one another in the conduct of any suit arising from this Agreement or from development of the Property pursuant to this Agreement; provided, however, that such duty to cooperate shall be limited by any conflict of interest which arises during the course of any such suit. (e) The foregoing provisions for Developer's indemnification of the Agency shall in no way limit Developer's rights at law or in equity to be indemnified by the Agency with respect to any claim arising out of or in connection with a purported act or omission by the Agency. 3.08 Liability Insurance. (a) Developer shall maintain in force during the construction of the Improvements pursuant to this Agreement public liability and property damage insurance, including personal injury, contractual, and owned and non-owned automobiles, with such coverage and limits as may be reasonably requested by Agency from time to time, but in no event for less than the sum of one million dollars ($1,000,000) combined single limit. Disposition and Development Page 16 Agreement - 1040 Davis Street May 14, 2004 FINAL