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construction contractor's occupancy or use of, the Property or Developer's <br />construction contractor's performance or non-performance under or with respect to <br />this Agreement, except to the extent any such claim arises out of or in connection <br />with the Agency's purported acts or omissions on, about or with respect to the <br />Property or the Agency's performance or non-performance under or with respect to <br />this Agreement. <br />(b) Upon knowledge of any such claim, the Agency shall notify the <br />Developer and its construction contractor of such claim in writing. Upon receipt of <br />such written notice, Developer, and, if applicable, its construction contractor, shall <br />defend at their own expense any suit based on such claim. Such defense shall include <br />provision of separate and independent counsel for the Agency where such counsel is <br />required by the California Code of Professional Conduct, or by common law conflict <br />of interest principles. The Agency shall have the right to choose such independent <br />counsel. <br />If any judgment or claims against the Agency shall be allowed, the Developer <br />and, if applicable, its construction contractor, shall pay or satisfy such judgment or <br />claim and pay all costs and expenses in connection therewith. <br />(c) The obligations to defend, indemnify and hold harmless the <br />Agency, specified in Sections 10.07(a) and (b) above, shall not apply to any claim <br />against the Agency arising from damage caused by the Agency's act or omission or the <br />tortious conduct of the Agency. <br />(d) Developer, the Agency, and Developer's construction contractor <br />shall have an affirmative duty to cooperate with one another in the conduct of any <br />suit arising from this Agreement or from development of the Property pursuant to <br />this Agreement; provided, however, that such duty to cooperate shall be limited by <br />any conflict of interest which arises during the course of any such suit. <br />(e) The foregoing provisions for the Developer's indemnification shall <br />in no way limit Developer's rights at law or equity to be indemnified by the Agency <br />with respect to any claim arising out of or in connection with a purported act or <br />omission by the Agency. <br />Disposition and Development Page 38 <br />Agreement (Creekside Center) <br />7/23/97, 8/5/97, 8/11/97, 8/12/97 <br />