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notify OWNER of any such claim, action, proceeding or determination, or if CITY fails to
<br />cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify,
<br />or hold harmless CITY. CITY may in its discretion participate in the defense of any such
<br />claim, action, proceeding or determination.
<br />8.2 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
<br />omission of OWNER, its officers, agents, employees, subcontractors, predecessors in
<br />interest, successors, assigns and independent contractors for any violation of any federal,
<br />state or local law, ordinance or regulation relating to industrial hygiene or to environmental
<br />conditions on, under or about the Property, including, but not limited to, soil and
<br />groundwater conditions, and OWNER shall defend, at its expense, including attorneys'
<br />fees, 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 of any
<br />such action.
<br />8.3 Reservation of Rights. With respect to Section 8.1 and Section 8.2 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, or (2) conduct its own defense; provided, however, that the
<br />indemnifying party shall reimburse the indemnified party forthwith for any and all
<br />reasonable expenses incurred for such defense, including attorneys' fees, upon billing and
<br />accounting therefor.
<br />8.4 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
<br />covenants not to sue or otherwise challenge any land use approval affecting the Property
<br />and in effect as of the Effective Date. Such agreement and covenant includes, without
<br />limitation, the covenant against any direct suit by OWNER or its successor in interest, or
<br />any participation, encouragement or involvement whatsoever that is adverse to CITY by
<br />OWNER or its successor in interest, other than as part of required response to lawful orders
<br />of a court or other body of competent jurisdiction. OWNER hereby expressly waives, on
<br />behalf of itself and its successors in interest, any claim or challenge to any land use
<br />approval affecting the Property and in effect as of the Effective Date.
<br />OWNER hereby acknowledges that it has read and is familiar with the provisions of
<br />California Civil Code Section 1542, which is set forth below:
<br />A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
<br />THAT THE CREDITOR OR RELEASING PARTY DOES NOT
<br />KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
<br />TIME OF EXECUTING THE RELEASE AND THAT, IF
<br />KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
<br />AFFECTED HIS OR HER SETTLEMENT WITH THE
<br />DEBTOR OR RELEASED PARTY.
<br />55394.00002\31553187.13
<br />#211240 11 A-37
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