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7.4 Tennination of Agreement for Default of CITY. OWNER may
<br />tenninate this Agreement only in the event of a default by CITY in the perfimmnee
<br />of a material term of this Agreement and only after providing written notice to CITY
<br />of detault setting forth the nature of the default and the aetions, if any, required by
<br />CITY to cure sueh default and, where the default can be eared, CITY has failed to
<br />take sueh aetions and cure sueh default within sixty (60) days after the effective date
<br />of sueh notice or, in the event that sueh default eannot be eared within such sixty (00)
<br />day period but can be eared within a longer time, has failed to eommenee the aetions
<br />necessary to eure sueh default within such sixty (60) day period and to diligently
<br />proceed to eomplete sueh aetions and eure sueh default.
<br />R. LITIGATION.
<br />9.1 'third Partv Litigation Coneemine Agreement. OWNER shall
<br />defend, at its expense, including attorneys' fees, indemnify, and hold harmless CITY,
<br />its agents, offieers and employees from any elaim, aetion or proceeding against CITY,
<br />its agents, officers, or employees to attaek, set aside, void, or annul the approval of
<br />this Agreement, or the approval of any pennit or entitlement granted pursuant to this
<br />Agreement. CITY shall promptly notify OWNER of any elaim. aetion, proceeding
<br />or detennination ineluded within this Section R.I, and CITY shall cooperate in the
<br />defense. If CITY fails to promptly notify OWNER of any sueh elaim, aetion,
<br />proceeding or detennination. or if CITY fails to eooperate in the defense, OWNER
<br />shall not thereafter be responsible to defend, indemnify, or hold harmless CITY.
<br />CITY may in its diseretion participate in the defense of any sueh elaim, aetion,
<br />proceeding or detennination.
<br />9.2 Environmental Assurances. OWNER shall indemnify and hold
<br />CITY, its of ieers, agents, and employees free and harmless from any liability, based
<br />or asserted, upon any aet or omission of OWNER, its offieers, agents, employees,
<br />subcontractors, predecessors in interest, successors, assigns and independent
<br />eontraetors for any violation of any federal, state or Ioeal law, ordinance or regulation
<br />relating to industrial hygiene or to environmental eonditions on, under or about the
<br />property, including, but not limited to, soil and groundwater eonditions, and OWNER
<br />shall defend, at its expense, including attorneys' fees, CITY, its offieers, agents and
<br />employees in any aetion based or asserted upon any sueh alleged aet or omission.
<br />CITY may in its diseretion participate in the defense of any sueh aetion.
<br />9.3 Reservation of Ritzhts. With respect to Section 9.1 and Section 9.2
<br />herein, CITY reserves, the right to either (I) approve the attorney(s) that the
<br />indemnifying party seleets, hires or otherwise engages to defend the indemnified party
<br />hereunder, whieh approval shall not be unreasonably withheld, or (2) eonduet its own
<br />defense; provided, however, that the indemnifying party shall reimburse the
<br />indemnified party forthwith for any and all reasonable expenses ineurred for such
<br />defense, including attorneys' flees, upon billing and aeeounting therefor.
<br />9.4 Challenge to Existing Land Use Approvals. By aeeepting the
<br />benefits ofthis Agreement, OWNER, oil behalfof itselfand its successors in interest,
<br />hereby expressly agrees and covenants not to sue or otherwise challenge any land use
<br />approval affecting the property and in effeet as ofthe Effective Date. Sueh agreement
<br />and eovenant ineludes, without limitation, the eovenant against any direet suit by
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<br />5i39J M00' 31553137.13
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