RDA Agmt 2001 FH Dailey Motor Company

Home

• 9.03 Enforced Delay. In addition to specific provisions of this Agreement, performance by either Party hereunder shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods;earthquakes;fires;casualties;acts of God;acts of the public enemy;epidemics;quarantine restrictions; freight embargoes;lack of transportation;governmental restrictions(excluding those imposed by the Agency or the City)or priority;litigation(including suits filed by third parties concerning or arising out of this Agreement or suits challenging approvals by the city of the development of the Improvements on the Site);weather or soils conditions which will necessitate delays;inability to secure necessary labor, materials or tools;delays of any contractor, sub-contractor or supplier; acts of the other Party; acts or failure to act of any public or governmental agency or entity(other than the acts or failure to act of the Agency);or any other causes beyond the control or without the fault of the Party claiming an extension of time to perform. The Party claiming such extension shall send written notice of the extension to the other within thirty (30) days from the commencement of the cause. Times of performance under this Agreement may be extended in writing by the Agency and the Participant by mutual agreement of Participant and the Executive Director unless the Executive Director, in his discretion, refers the matter of extension to the Agency Board of Directors. 9.04 Indemnity by Participant. (a) Except as provided in Section 9.04(c) below, Participant shall defend, indemnify and hold harmless the Agency for any third-party claim against the Agency of any nature whatsoever arising out of or in connection with Participant's performance or non-performance under or with respect to this Agreement,and any claims for relocation related to the Site or any other property referenced in 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 Site or the Agency's performance or non-performance under, or with respect to, this Agreement. If any such claim is attributable to an action or omission of Participant's construction contractor, such contractor shall also defend, indemnify and hold harmless the Agency against such claim arising out of or in connection with Participant's construction contractor's purported acts or omissions on or about, or Participant's construction contractor's occupancy or use of, the Site or Participant's construction contractors performance or non-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 Site or the Agency's performance or non-performance under or with respect to this Agreement. (b) Upon knowledge of any such claim,the Agency shall notify the Participant and its construction contractor of such claim in writing. Upon receipt of such written notice, Participant, 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. (c) The obligations to defend,indemnify and hold harmless the Agency,as specified in Sections 9.04(a) and (b) above, shall not apply to any claim against the Agency arising from damage caused by the Owner Participation Agreement Page 15 of 18