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Promptly following receipt of notice, the City shall give Developer written notice of any <br /> claim for which Developer has indemnified it hereunder, and Developer shall thereafter <br /> vigorously defend such claim, at its sole cost, on behalf of the City. Failure to give prompt <br /> notice to Developer shall not constitute a bar to the indemnification hereunder unless such delay <br /> has prejudiced Developer in the defense of such claim. If Developer is required to defend any <br /> action or proceeding pursuant to this Section to which action or proceeding the City is made a <br /> party,the City shall be entitled to appear, defend or otherwise take part in the matter involved, at <br /> its election, by counsel of its own choosing, and to the extent the City is indemnified under this <br /> section, Developer shall bear the cost of the City's defense, including reasonable attorneys' fees <br /> and costs. No settlement of any non-monetary claim shall be made without the City's written <br /> approval, not to be unreasonably withheld. <br /> 6.5 Permits. Except as otherwise expressly provided in the Purchase Agreement and <br /> the other agreements and instruments delivered at Closing thereunder (including this Covenant), <br /> Developer acknowledges that the City has made no representation or warranty with respect to <br /> Developer's ability to obtain any permit or approval, or to meet any other requirements for <br /> development of the Property or Project. Nothing in this Covenant is intended or shall be <br /> construed to require that the City exercise its discretionary authority under its regulatory <br /> ordinances to further the Project nor binds the City to do so. Developer understands that the City <br /> will process applications for permits and approvals in accordance with its normal processes. <br /> Section 7. Certificate of Completion. <br /> 7.1 When Developer Entitled to Certificate of Completion. Upon substantial <br /> completion of the Project in accordance with this Covenant and satisfaction of the other <br /> conditions of this Section 7, the City will furnish Developer with a recordable Certificate of <br /> Completion signed by the Mayor of the City, substantially in the form attached hereto as <br /> Exhibit B. Notwithstanding the foregoing, the City shall not be required to issue the Certificate <br /> of Completion if uncured Event(s) of Default exist. In addition, if punchlist items remain when <br /> Developer requests the Certificate of Completion, the City may require as a condition to the <br /> issuance thereof that Developer post a bond or provide other financial assurance reasonably <br /> satisfactory to the City to insure completion of the punchlist items, and Developer agrees to <br /> proceed with all reasonable diligence to complete the punchlist items. <br /> 7.2 Meaning and Effect of Certificate of Completion. Issuance by the City and the <br /> recording of a Certificate of Completion shall terminate all provisions of this Covenant except <br /> for Sections 3.2 and 3.3 and all provisions necessary to enforce Sections 3.2 and 3.3. Any party <br /> thereafter acquiring any portion of the Improvements shall not have any obligation under such <br /> terminated provisions. <br /> 7.3 Procedure if City Does Not Issue. The City shall not unreasonably withhold, <br /> condition, or delay the issuance of the Certificate of Completion. If, within ten (10) business <br /> days after receipt of written notice clearly marked "Request for Certificate of Completion" from <br /> Developer, the City has not issued the Certificate of Completion, then the City shall provide <br /> Developer with a detailed statement indicating in what respects Developer has failed (if any) to <br /> complete the Project or Improvements in accordance with the provisions of this Covenant or is <br /> otherwise in default and what measures or acts must be taken, in the opinion of the City, to <br /> -13- <br /> 51083924.1 <br />