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(b) City does not waive any claim of defect in performance by Owner, if <br />on periodic review the City does not propose to modify or terminate <br />this First Amended and Restated Development Agreement, <br />(c) Non- performance shall not be excused because of failure of a third <br />person. <br />(d) An express repudiation, refusal, or renunciation of the contract, if <br />the same is in writing and signed by the Owner, shall be sufficient <br />to terminate this First Amended and Restated Development <br />Agreement and a hearing on the matter shall not be required. <br />(e) Adoption of a law or other governmental activity making <br />performance by the Owner unprofitable or more difficult or more <br />expensive does not excuse the performance of the obligation by the <br />Owner. <br />(f) All other remedies at law or in equity which are not inconsistent with <br />the provisions of this First Amended and Restated Development <br />Agreement are available to the parties to pursue in the event there <br />Is a breach. <br />7,3 Damages upon Termination. In no event shall Owner be entitled to any <br />damages against City upon termination of this First Amended and <br />Restated Development Agreement, <br />7.4 Institution of legal Action. In addition to any other rights or remedies, <br />either party may institute legal action to cure, correct, or remedy any <br />default or breach, to specifically enforce any covenants or agreements set <br />forth in this First Amended and Restated Development Agreement, or to <br />enjoin any threatened or attempted violation of this First Amended and <br />Restated Development Agreement; or to obtain any remedies consistent <br />with the purpose of this First Amended and Restated Development <br />Agreement, legal actions shall be instituted in the Superior Court of the <br />County of Orange, State of California, or in the Federal District Court in <br />the Central District of California, Southern Division, <br />MORTGAGEE PROTECTIONS <br />8.1 Right to OwnerlNotice /Multiple Mortgagees. Owner shall have the <br />absolute right to encumber Owner's right, title and interest in, to and <br />under this First Amended and Restated Development Agreement and the <br />Property pursuant to one or more Mortgages. Because certain portions <br />of the Project may be developed by one or more assignees, the Parties <br />067619 \544a8320 20 <br />