|
Owner's Initials
<br />6.3. Termination or Modification of Agreement for Default of Owner. City may terminate or
<br />modify this Agreement for any failure of Owner to perform any material duty or obligation of
<br />Owner under this Agreement, or to comply in good faith with the terms of this Agreement
<br />(hereinafter referred to as "default"); provided, however, City may terminate or modify this
<br />Agreement pursuant to this Section 6.3 only after providing written notice to Owner of default
<br />setting forth the nature of the default and the actions, if any, required by Owner to cure such
<br />default and, where the default can be cured Owner has failed to take such actions and cure such
<br />default within sixty (60) days after the effective date of such notice or, in the event that such
<br />default cannot be cured within such sixty (60) day period but can be cured within a longer time,
<br />has failed 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. City's sole
<br />remedy for any default or breach of this Agreement by Owner shall be City's right to terminate
<br />this Agreement.
<br />6.4. Voluntary Termination of Agreement by Owner. In the event Owner determines, in its
<br />sole discretion, that it no longer wishes to proceed with the Project pursuant to the terms of this
<br />Agreement, Owner may terminate this Agreement by providing the City with 30 days written
<br />notice. Notwithstanding this or other provisions herein, Owner's indemnity and defense
<br />obligations shall survive such termination.
<br />LITIGATION.
<br />7.1. Third -Party Litigation Concerning Agreement. Owner shall defend, at its expense,
<br />including attorneys' fees, indemnify, and hold harmless City, its agents, officers and employees
<br />from any claim, action or proceeding against City, its agents, officers, or employees to attack, set
<br />aside, void, or annul the approval of this Agreement, or the approval of any permit or entitlement
<br />granted pursuant to this Agreement or for the Project. City shall promptly notify Owner of any
<br />claim, action, proceeding or determination included within this Section 7.1, and City shall
<br />cooperate in the defense. If City fails to promptly notify Owner of any such claim, action,
<br />proceeding or determination, or if City fails to cooperate in the defense, Owner shall not
<br />thereafter be responsible to defend, indemnify, or hold harmless City as to that claim, action,
<br />proceeding, or determination. City may in its discretion participate in the defense.
<br />7.2. Environmental Assurances. Owner shall indemnify and hold City, its officers, agents, and
<br />employees free and harmless from any liability, based or asserted, upon any act or omission of
<br />Owner, its officers, agents, employees, subcontractors, predecessors in interest, successors,
<br />assigns and independent contractors for any violation of any federal, state or local law, ordinance
<br />or regulation relating to industrial hygiene or to environmental conditions on, under or about the
<br />Property, including, but not limited to, soil and groundwater conditions, and Owner shall defend,
<br />at its expense, including attorneys' fees, City, its officers, agents and employees in any action
<br />based or asserted upon any such alleged act or omission. City may in its discretion participate in
<br />the defense.
<br />7.3. Reservation of Rights. With respect to Section 7.1 and Section 7.2 herein, City reserves,
<br />the right to either (1) approve the attomey(s) that the indemnifying party selects, hires or
<br />otherwise engages to defend the indemnified party hereunder, which approval shall not be
<br />unreasonably withheld, conditioned, or delayed, or (2) conduct its own defense; provided,
<br />-21-
<br />55394.00053\31891805.16
<br />
|