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May 25, 2010 -Execution Copy <br />any certificate requested by Developer hereunder. Developer shall have the right <br />at Developer's sole discretion, to record the Notice of Compliance. <br />ARTICLE 9. LEGAL CHALLENGE <br />Section 9.01. Cooperation. <br />(a) In the event of any administrative, legal or equitable action or other <br />proceeding instituted by any person not a party to this Agreement <br />challenging the validity of any provision of the Agreement or any Project <br />Approval or Subsequent Approval, the parties shall cooperate in defending <br />such action or proceeding. <br />(b) If any person or entity not a Party to this Agreement initiates an action at law <br />or in equity or other proceeding to challenge the validity of any provision of <br />this Agreement, any Project Approval or any Subsequent Approval (referred <br />to herein in this subsection as "Action"), the Developer shall pay all of its <br />own costs and attorney's fees in defense as a party or real party in interest in <br />any such Action. City shall have the right to choose, in its sole discretion, <br />legal counsel to represent the City in any such Action, including any appeal <br />of such Action ("Appeal"). Developer shall pay to the City all costs <br />(including, court costs) and attorneys' fees incurred by City in any such <br />Action, including any Appeal. Developer shall also pay to the City all other <br />actual costs, fees and expenses incurred by the City, including overhead and <br />City staff time, relating to any such Action, including any Appeal. For the <br />purposes of this subsection, Appeal includes any appeal by any party to the <br />Action, provided that any appeal filed or pursued solely by the City must be <br />based on a determination by the City, in its sole discretion, that the appeal is <br />necessary to protect its interests. <br />(c) If either party to this Agreement brings any action or proceeding at law or in <br />equity against the other party to enforce any of the provisions or rights under <br />this Agreement, the prevailing party shall be entitled to recover from the <br />unsuccessful party all costs, expenses and reasonable attorney's fees <br />incurred in the enforcement proceeding by the prevailing party (including <br />without limitation such costs, expenses and fees on any appeals) and if such <br />prevailing party shall recover judgment in any such action or proceeding, <br />such costs, expenses, including those of expert witnesses, and attorney's fees <br />shall be included in and as part of the judgment. <br />(d) The parties agree that this Article 9 shall constitute a separate agreement <br />entered into concurrently, and that if any other provision of this Agreement, <br />or the Agreement as a whole, is invalidated, rendered null, or set aside by a <br />court of competent jurisdiction, the parties agree to be bound by the terms of <br />this Article 9, which shall survive such invalidation, nullification or setting <br />aside. <br />Page 25 of 36 <br />1424669.1 Kaiser Medical Center and Retail Project Development Agreement <br />