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within such sixty (60) day period but can be cured within a longer time, has failed
<br />to commence the actions necessary to cure such default within such sixty (60) day
<br />period and to diligently proceed to complete such actions and cure such default.
<br />8. LITIGATION.
<br />8.1 Third Party Litigation Concerning Agreement. OWNER shall
<br />defend, at its expense, including attorneys' fees, indemnify, and hold harmless
<br />CITY, its agents, officers and employees from any claim, action or proceeding
<br />against CITY, its agents, officers, or employees to attack, set aside, void, or annul
<br />the approval of this Agreement, or the approval of any permit or entitlement
<br />granted pursuant to this Agreement. CITY shall promptly notify OWNER of any
<br />claim, action, proceeding or determination included within this Section 8.1, and
<br />CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of
<br />any such claim, action, proceeding or determination, or if CITY fails to cooperate
<br />in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or
<br />hold harmless CITY. CITY may in its discretion participate in the defense of any
<br />such claim, action, proceeding or determination.
<br />8.2 Environmental Assurances. OWNER shall indemnify and hold
<br />CITY, its officers, agents, and employees free and harmless from any liability,
<br />based or asserted upon any act or omission of OWNER, its officers, agents,
<br />employees, subcontractors, predecessors in interest, successors, assigns and
<br />independent contractors for any violation of any federal, state or local law,
<br />ordinance or regulation relating to industrial hygiene or to environmental conditions
<br />on, under or about the Property, including, but not limited to, soil and groundwater
<br />conditions, and OWNER shall defend, at its expense, including attorneys' fees,
<br />CITY, its officers, agents and employees in any action based or asserted upon any
<br />such alleged act or omission. CITY may in its discretion participate in the defense
<br />of any such action.
<br />8.3 Reservation of Rights. With respect to Section 8,1 and Section 8.2
<br />herein, CITY reserves, the right to either (1) approve the attorney(s) that the
<br />indemnifying party selects, hires or otherwise engages to defend the indemnified
<br />party hereunder, which approval shall not be unreasonably withheld, or (2) conduct
<br />its own defense; provided, however, that the indemnifying party shall reimburse the
<br />indemnified party forthwith for any and all reasonable expenses incurred for such
<br />defense, including attorneys' fees, upon billing and accounting therefor.
<br />8.4 Challenge to Existing Land Use Approvals. By accepting the
<br />benefits of this Agreement, OWNER, on behalf of itself and its successors in
<br />interest, hereby expressly agrees and covenants not to sue or otherwise challenge
<br />any land use approval affecting the Property and in effect as of the Effective Date.
<br />Such agreement and covenant includes, without limitation, the covenant against any
<br />direct suit by OWNER or its successor in interest, or any participation,
<br />encouragement or involvement whatsoever that is adverse to CITY by OWNER or
<br />its successor in interest, other than as part of required response to lawful orders of
<br />a court or other body of competent jurisdiction. OWNER hereby expressly waives,
<br />on behalf of itself and its successors in interest, any claim or challenge to any land
<br />use approval affecting the Property and in effect as of the Effective Date.
<br />-21-
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<br />75E-147
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