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day following the date postmarked. If mailed outside the State of Oregon, notice shall be deemed <br />delivered upon the fifth day following the date postmarked. Either party may change the person <br />to receive notice by giving notice of the change to the other pazty. <br />7. Indemnification. Developer shall indemnify and hold City, and its officers, agents and <br />employees, harmless from and against all claims, actions, liabilities and costs, including attorney <br />fees and other costs of defense, or any appeal or review thereof, arising out of or in any way <br />related to Developer's performance under this Agreement, Developer's failure to strictly comply <br />with any provision of this Agreement, or any other actions or failure to act by Developer, <br />Developer's employees, agents, officers and contractors as such acts or omissions relate to this <br />Agreement. In the event any such action or claim is brought against Ciry, Developer shall, if City <br />so elects and upon tender by City, defend the same, including any appeal or review thereof, at <br />Developer's sole cost and expense, promptly satisfy any judgment adverse to City or to City and <br />Developer, jointly, and reimburse City for any loss, cost, damage or expense, including attorney <br />fees, suffered or incurred by City. This provision shall survive the expiration or earlier <br />termination of this Agreement. <br />8. Attorney Fees. In the event any legal proceeding is commenced for the purpose of <br />interpreting or enforcing any provision of this Agreement, the prevailing party in such proceeding <br />shall be entitled to recover reasonable attorney fees in the proceeding, or any appeal or review <br />thereof, to be set by the court without the necessity of hearing testimony or receiving evidence, <br />in addition to the costs and disbursements allowed by law. In addition, in the event of default by <br />either party in performance of this Agreement, the defaulting parry agrees to pay all reasonable <br />attorney fees and legal expenses incurred by the non-defaulting party in collecting any sums due <br />hereunder, even though no litigation is filed. <br />9. Assignment/Binding Effect. Developer shall not assign its interest in this Agreement <br />without City's prior written consent. City may require Developer and Developer's assignee to <br />provide City reasonable documentation in connection with City's consent consideration and <br />decision. Notwithstanding the foregoing, the obligations herein benefit and affect the Property <br />and therefore constitute a burden and attach to the Property and obligate Developer and developers <br />heirs, successors and assigns. <br />10. Merger/Amendment. There are no other undertakings, promises or agreements, either <br />verbal or in writing, other than those contained in this Agreement which affect the provisions of <br />this Agreement. Any amendments to this Agreement shall be in writing and executed by both <br />parties. <br />11. Applicable Laws/Jurisdiction. The laws of the State of Oregon shall be used in <br />construing this Agreement and enforcing the rights and remedies of the parties. The parties <br />further agree that jurisdiction over this Agreement and matters relating thereto shall lie in the <br />courts of the State of Oregon. <br />98- 00428 ~°" <br />Street Tree Plan Agreement -City Plants Alternate - 3 of 25 :i:r.~;; <br />