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action moot, Developer and County agree to affirmatively cooperate in responding to and defending against such action, to the extent possible and without waiving any other rights as may exist under this Agreement or otherwise; provided, however,that County may, but is in no way required to tender the complete defense thereof to Developer, and if Developer accepts such tender, the following shall apply: 6.4.1. Developer shall indemnify County from all claims incurred by County in connection with such third party legal action; 6.4.2. Developer shall control the defense of such third party legal action; provided, however,that Developer shall coordinate such defense with County and shall seek and secure County's approval of any settlement, not to be unreasonably withheld; 6.4.3. Developer shall be solely responsible for the attorneys' fees and costs owing to the legal counsel selected by Developer. If County does not tender the defense to Developer,or if Developer refuses to accept such tender, County may defend such third party legal action (as County reasonably determines appropriate), and if County elects to do so, Developer shall indemnify County from all claims incurred by County in connection therewith, including County's reasonable attorney's fees up to a maximum amount of $75,000,and any damages or attorney's fees as may be awarded to a third party or parties; provided, however, that if the County does not tender the defense to Developer, and, in such event, County does not accept a settlement of the matter for which Developer agrees to indemnify the County, Developer shall no longer have any obligation to defend and indemnify the County for such matter, including any subsequent settlement agreed to by the County or any judgment entered against the County. This Agreement shall remain in full force and effect, notwithstanding the filing of such third party legal action, and shall remain in full force and effect while such litigation, including appellate review, is pending, unless stayed by order of court or terminated by Developer. SECTION 7. DEVELOPMENT OF PROPERTY AS A PRIVATE UNDERTAKING. 7.1. Development of Property as a Private Undertaking. It is specifically understood and agreed by and between the Parties hereto that the development of the Property is a separately undertaken private development. No partnership,joint venture or other association of any kind between the Developer, on the one hand, and the County, on the other, is formed by this Agreement. The only relationship between the County and the Developer is that of a governmental entity regulating the development of private property and the owner of such private property. This Agreement is not intended nor shall it be construed to create any third party beneficiary rights in any person or entity which is not a signatory party hereto, unless expressly otherwise provided. SECTION 8. CONSISTENCY WITH GENERAL PLAN. 8.1. Consistency With General Plan. The County hereby finds and determines that execution of this Agreement is in the best interest of the public health, safety and general welfare and is consistent with the General Plan for the reasons noted in the Recitals of this Agreement. -38-