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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 />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 attorney(s) that the indemnifying party selects, hires or
<br />otherwise engages to defend the indemnified party hereunder, which approval shall not be
<br />unseasonably 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 />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 covenants
<br />not to sue or otherwise challenge any land use approval affecting the Property and in effect as of
<br />the Effective Date. 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 than
<br />as part of required response to lawful orders of a court or other body of competent jurisdiction.
<br />Owner hereby expressly waives, on behalf of itself and its successors in interest, any claim or
<br />challenge to any land use approval affecting the Property and in effect as of the Effective Date.
<br />8.5. Survival. The provisions of Sections 8.1 and 8.2 shall survive the termination of this
<br />Agreement.
<br />9. MORTGAGEE PROTECTION.
<br />9.1. The parties hereto agree that this Agreement shall not prevent or limit Owner, in any
<br />manner, at Owner's sole discretion, from encumbering the Property or any portion thereof or any
<br />improvement thereon by any mortgage, deed of trust or other security device securing financing
<br />with respect to the Property. City acknowledges that the lenders providing such financing may
<br />require certain Agreement interpretations and modifications and agrees upon request, from time
<br />to time, to meet with Owner and representatives of such lenders to negotiate in good faith any
<br />such request for interpretation or modification. City will not unreasonably withhold its consent to
<br />any such requested interpretation or modification provided such interpretation or modification is
<br />consistent with the intent and purposes of this Agreement. In furtherance of the foregoing, and
<br />notwithstanding anything stated to the contrary in this Agreement, any Mortgagee of the Property
<br />shall be entitled to the following rights and privileges:
<br />9.1.1. Default under Agreement Does Not Impair Lien of any Mortgage. Neither
<br />entering into this Agreement nor a breach of this Agreement shall defeat, render invalid,
<br />diminish or impair the lien of any mortgage on the Property, the Leasehold Estate, or any Sub
<br />Leasehold Estate made in good faith and for value, unless otherwise required by law.
<br />9.1.2. Request for Notices of Default by Mortgagee. The Mortgagee of any mortgage
<br />or deed of trust encumbering the Property, the Leasehold Estate, or Sub Leaschold Estate, or any
<br />Exhibit 4 Ordinance No. NS-3071
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