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Owner of any claim, action, proceeding or determination included within this Section 7.1, and
<br />City shall cooperate in the defense. If City fails to promptly notify Owner of any such claim,
<br />action, 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,
<br />and employees free and harmless from any liability, based or asserted, upon any act or omission
<br />of 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 attorney(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 />however, that the indemnifying party shall reimburse the indemnified party forthwith for any and
<br />all reasonable expenses incurred for such defense, including attorneys' fees, upon billing and
<br />accounting therefor.
<br />7.4. Challenge to Existing Land Use Approvals. By accepting the benefits of this Agreement,
<br />Owner, on behalf of itself and its successors in interest, hereby expressly agrees and covenants
<br />not to sue or otherwise challenge any land use approval affecting the Property and in effect as of
<br />the Effective Data Such agreement and covenant includes, without limitation, the covenant
<br />against any direct suit by Owner or its successor in interest, or any participation, encouragement
<br />or involvement whatsoever that is adverse to City by Owner or its successor in interest, other
<br />than as part of required response to lawful orders of a court or other body of competent
<br />jurisdiction. Owner hereby expressly waives, on behalf of itself and its successors in interest, any
<br />claim or challenge to any land use approval affecting the Property and in effect as of the
<br />Effective Date.
<br />7.5. Waiver.
<br />7.5.1. Owner hereby acknowledges that it has read and is familiar with the provisions
<br />of California Civil Code Section 1542, which is set forth below:
<br />"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
<br />WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
<br />EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
<br />THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
<br />HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
<br />WITH THE DEBTOR."
<br />_22_
<br />11 B-35
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